Could a Kentucky officer arrest a domestic violence suspect without a warrant after the victim fled the scene?

Plain-English summary

A Morganfield police investigator asked whether a victim leaving the scene of a domestic assault ended an officer's power to arrest the accused without a warrant. The AG said the victim's location was not decisive. Under the statute it reviewed, an officer needed probable cause that the accused had intentionally or wantonly caused physical injury to a covered family or household member and would present an immediate danger if not restrained.

The opinion said a suspect could still threaten a victim who had gone elsewhere. If the danger had apparently ended and the victim's location was safe, it considered a prompt arrest warrant and protective order appropriate instead. It also treated entry into a private dwelling as a separate constitutional issue. This discussion assumed no protective order was already in force.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Officers responding to domestic assault

The AG focused on evidence of an immediate threat after the victim left. It identified possible continued pursuit, retaliation, or return to the victim's location as relevant facts. It urged officers to document victim and witness accounts, obtain available physical evidence, and consider the accused's statement. Under the statute then in force, the particular warrantless arrest authority discussed was limited to full-time law enforcement officers.

Victims and people at another location

Moving to a third party's dwelling or public building did not automatically eliminate the risk the opinion required officers to assess. The AG said that when probable cause for immediate danger was lacking, officers should instead promptly seek an arrest warrant and a domestic violence protective order.

Common questions

Did the victim's departure end the officer's warrantless arrest authority?

No. The opinion said departure alone did not settle whether the accused still posed an immediate threat. The other statutory probable-cause requirement, physical injury to a covered person, also had to be met.

What if the suspect no longer appeared to be a threat?

The AG said that if the threat had apparently stopped and the victim was safe, promptly seeking an arrest warrant and protective order was justified and appropriate.

Could officers enter a private home without a warrant just because arrest was otherwise authorized?

The opinion treated entry as a separate Fourth Amendment question. It discussed consent and exigent circumstances, including an immediate risk of danger, when assessing a warrantless entry into a dwelling.

Background and statutory framework

The opinion interpreted KRS 431.005(2) before and after a 1992 amendment in HB 115. The amendment broadened covered relationships and removed a signed-victim-statement requirement, but the AG said it did not answer the investigator's question about danger after the victim fled. The opinion also noted that a different provision, KRS 403.760, addressed arrests for protective-order violations; its own analysis assumed no such order was in force. Its discussion of Michigan v. DeFillippo concerned probable cause, while Todd v. Commonwealth concerned entry to assist a person in immediate need.

Citations and references

• KRS 431.005(2): the domestic violence warrantless arrest provision interpreted in 1992.
• HB 115: 1992 amendment to the arrest provision and protective-order enforcement.
• KRS 403.760: protective-order violation provision mentioned separately by the AG.
• Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343, 349-350 (1979): probable-cause standard quoted in the opinion.
• Todd v. Commonwealth, Ky., 716 S.W.2d 242, 248 (1986): immediate-aid example for entering a dwelling.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG92-096.htm

Original opinion text

OAG 92-96

June 12, 1992

Mr. Jeffery W. Hart

Investigator, Morganfield Police Department

118 East Main Street

Morganfield, Kentucky 42437

Dear Sir:

You have asked us to interpret KRS 431.005(2), which authorizes warrantless arrests in certain cases of domestic violence, e.g., spouse abuse, child abuse, parent abuse. Your questions, as we under stand it, is whether the fact that the victim has fld from the scene (e.g., the dwelling where the parties reside)( of the assault prevents the officer from making a warrantless arrest. Our answer is that this fact is not necessarily decisive regarding the application of the warrantless arrest statute, KRS 431.00592). Our discussion of this matter follows.

We note at the outset that the authority for warrantless arrests specified in KRS 431.005(2) is limited to "full-time" law enforcement officers by subsection (3) of that section.

KRS 431.005(2) states at present:

(2) Any peace officer may arrest without warrant when he has probable cause to believe that if the person is not arrested he will present a danger or threat of danger to others if not immediately restrained and in addition he has probable cause for believing that said person has intentionally or wantonly caused physical injury to his spouse, former spouse, parent, grandparent, child, stepchild, or, if said person is a party of an unmarried couple which has a child in common, the other party of the couple. Within twelve (12) hours following apprehension and booking of a person arrested under the section, an officer shall return to the abused person, if the abused person is an adult, and request that a signed, written statement be made by the abused person stating that an abuse occurred and the person who committed it. If the abused person refuses to sign the statement, the charges shall be summarily dismissed and the defendant released from custody.

KRS 431.005(2) has been amended by HB 115, Section 14 (1992 Regular Session) and will state, effective July 14, 1992:

(2) (a) Any peace officer may arrest a person without warrant when the peace officer has probable cause to believe that if the person is not arrested the person will present a danger or threat of danger to others if not immediately restrained and in addition the peace officer has probable cause for believing that the person has intentionally or wantonly caused physical injury to family member or member of an unmarried couple.

(b) For the purposes of this subsection, the term "family member" means a spouse, including a former spouse, a parent, a grandparent, a child, a stepchild, or any other person related by consanguinity or affinity within the second degree.

(c) For the purpose of this subsection, the term "member of an unmarried couple" means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formally lived together.

The 1992 amendment deleted the requirement that the officer obtain a signed statement from the victim and expanded warrantless arrest authority to encompass members of unmarried couples and any children of those members. Thus, we observe that the 1992 amendment does not resolve your question.

Before addressing the statutory question, we will address the Constitutional standard for an arrest. In Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343, 349-350 (1979), the United States Supreme court defined "probable cause" for an arrest:

This Court repeatedly has explained that "probable cause" to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

(Citations omitted.)

Also see annotation, "What Constitutes Probable Cause for Arrest - Supreme Court Cases," 28 L.Ed.2d 978, 984-986; Later Case Service, at 440. In Sampson v. Commonwealth, Ky., 609 S.W.2d 355, 358-359 (1980), the Kentucky Supreme Court defined "probable cause":

The prior [to arrest] knowledge required by an officer is not such as guarantees a conviction; it is such that make it probable, by the use of any one or more of our five senses, that in the opinion of the arresting officer the accused committed or was in the act of committing a felony.

Also see Crawford v. Commonwealth, Ky., 824 S.W.2d 847, 849 (1992) (upholding warrantless arrest).

A warrantless arrest of a suspect in a private place may violate the Fourth Amendment if the police are not given permission to enter and exigent circumstances do not exist. Donovan v. Dewey, 452 U.S. 594, 598, n. 6, 101 S.Ct. 2534, 2538, n.6, 69 L.Ed.2d. 262, 268, n. 6 (1981) (collecting cases). In Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. Supreme Court noted that a warrantless arrest intrusion [into a private dwelling] may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling."

(Citations omitted. Emphasis added.) Also see Todd v. Commonwealth, Ky., 716 S.W.2d 242, 248 (1986), noting that police may enter dwelling without consent or a warrant "when they reasonably believe a person within is in need of immediate aid." Hence if the accused presents an immediate risk of danger to the victim, the Fourth Amendment does not prevent his arrest even without an arrest warrant or a search warrant.

As your letter notes, KRS 431.005(2) requires that the officer have probable cause to believe that the accused has caused physical injury to his family member (e.g., spouse or former spouse), or other person of an unmarried couple and that the accused "presents a danger or threat of danger to others if not immediately restrained". (Emphasis added.) The fact that the victim (or complaining witness) has fled to the dwelling of a third party or to a public building does not necessarily mean that the accused no longer presents an immediate threat of danger. Assuming that the accused has not followed the victim into the new location or building, the accused may still intend to retaliate against the victim as soon as the opportunity presents itself. In such a situation, the accused would still present a threat of danger if not immediately restrained by warrantless arrest.

Regardless of whether a warrantless arrest is made, the officer should attempt to determine and document from the victim, any other witnesses, and any available physical evidence whether a reasonable probability still exists that the accused presents an immediate threat of danger to the victim. If the accused is available and willing to discuss the situation, the officer should attempt to obtain a written or recorded statement from the accused.

Although a Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), warning is not necessarily required for an investigatory interview, the better practice is to give a Miranda warning automatically when interviewing someone accused of a crime and to obtain a voluntary waiver of these rights since in a case in which an arrest immediately follows the interview the Court may have difficulty determining at what point the accused was "in custody", i.e., not free to leave. See Berkemer v. McCarty, 468 U.S. 420, 439-441, 104 S.Ct. 3138, 3150-3151, 82 L.Ed.2d 317, 334-335 (1984) (some police questioning may precede arrest and Miranda warnings; courts will occasionally have difficulty deciding when suspect was taken into custody). Miranda requires, 384 U.S. at 479, 86 S.Ct. At 1630, 16 L.Ed.2d at 726, that the accused be advised that "he has the right to remain silent, that anything he says right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires" or a reasonably equivalent warning. See Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (alternative version of warning upheld).

To describe a different situation, if the accused has apparently desisted from the threat of danger to the victim and victim's present location is apparently safe from attack, the decision to seek promptly an arrest warrant and a domestic violence protective order pursuant to KRS 403.715 to 403.790 rather than undertake a warrantless arrest would be justified and appropriate. Conversely, if the accused has fld from the scene of the attack and the officer determines that there is probable cause to believe that the accused intentionally or wantonly caused physical injury to the victim and still presents an immediate threat of danger, for example, because the accused may return to the victim's dwelling or other location or because the accused may follow, menace, stalk (see 1992 HB 445 amending KRS Chapter 508), or otherwise stay in the vicinity of the victim; a warrantless arrest under KRS 431.005(2) would be justified. Again in this situation, the officer should interview all available witnesses, record or document these interviews, and collect all available physical evidence. In any case, should a warrantless arrest not appear justified by probable cause, the officer should still promptly seek an arrest warrant and domestic violence protective order to deter any possible future domestic violence.

In summary, we think the answer to the question must depend whether there is probable cause that the accused, after the assault on the victim, still presents an immediate threat of danger to the victim. If so, he should be immediately arrested for the appropriate degree of assault under KRS Chapter 508 regardless of his location.

We note that the 1992 Regular Session of the General Assembly has enacted HB 115 and SB 103, which expand authority for the district and circuit courts to issue domestic violence protective orders and require that such orders be available on a 24 hour basis. Section 10 of HB 115 amends KRS 403.760 to require warrantless arrests upon probable cause for violation of a protective order (new subsection (2) of that section). Therefore, our discussion regarding warrantless arrests assumes that no protective order was in force at the time of the offense.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

By: Ian G. Sonego

Assistant Attorney General

IGS/lch