Can a Washington police records clerk accept someone into custody on a walk-in surrender, or does it have to be a commissioned officer?

Plain-English summary

Representative Larry Springer asked whether a non-commissioned police employee, like a records specialist working the front desk of the Bothell police department, could process a person who walked in to surrender on an outstanding arrest warrant. The AG answered both questions: yes, a voluntary surrender on a warrant is an arrest under the Fourth Amendment, and no, only a commissioned peace officer may execute the warrant.

On the first point, an arrest occurs the moment a reasonable person no longer feels free to leave (State v. Lewis, 59 Wn. App. 834 (1990); State v. Hauser, 19 Wn. App. 506 (1978)). The U.S. Supreme Court treated submission to a show of authority as a Fourth Amendment seizure (Albright v. Oliver, 510 U.S. 266 (1994)), and several federal courts had specifically held that voluntary surrender on a warrant is a seizure (Whiting v. Traylor; Caldwell v. Jones). A warrant is not an invitation; CrR 2.2(c) "commands" arrest. Once the citizen arrives intending to surrender, they are not free to leave, so the act of receiving them into custody is an arrest.

On the second point, CrR 2.2(d)(1) allows arrest warrants to be executed "only by a peace officer." The court rule does not define "peace officer," so the AG used Washington's standard interpretive tools: dictionary definitions plus related statutes. Black's defines "peace officer" in terms of an officer "designated" or "appointed" by public authority to maintain order. Statutes consistently define "peace officer" and "law enforcement officer" by reference to a commission. RCW 9A.04.110(15) defines a peace officer for the criminal code as "a duly appointed city, county, or state law enforcement officer." RCW 41.26.030(18) defines a "law enforcement officer" for LEOFF retirement purposes as a "commissioned" full-time, fully compensated officer who enforces criminal law generally, expressly excluding people in basically clerical or secretarial roles. RCW 10.93.020(3) (the Mutual Aid Peace Officers Powers Act of 1985) requires the same characteristics for a "general authority Washington peace officer."

Local code provisions also drew the line. Bothell Municipal Code § 2.28.050 expressly distinguished commissioned officers from clerical personnel and provided that clerical personnel "shall not be commissioned police officers." Olympia and Poulsbo had similar provisions. A non-commissioned police employee, even if employed by the police department, lacks the authority to execute an arrest warrant.

Currency note

This opinion was issued in 2015. 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.

Common questions

Q: Why is a walk-in surrender an arrest?
A: Because the person is not free to leave. Once a reasonable person knows the warrant exists and presents themselves intending to be taken into custody, the receipt of that surrender is itself a Fourth Amendment seizure. The label "voluntary" doesn't change the analysis.

Q: Why is the executor limited to a commissioned officer?
A: CrR 2.2(d)(1) provides that arrest warrants may be executed "only by a peace officer." The AG read "peace officer" as a term of art, drawing on RCW 9A.04.110(15) and RCW 41.26.030(18), which require a commission, full-time and fully compensated employment, and general authority to enforce the criminal laws of the state.

Q: What about the Criminal Justice Training Commission's definition?
A: The AG considered RCW 43.101.010(11)'s "peace officer" definition (any law enforcement personnel subject to basic training requirements) and rejected it for this purpose, consistent with AGO 2009 No. 7. That definition is statutorily limited to RCW 43.101 and is not used to construe other titles.

Q: Does the rule mean records personnel cannot do anything when a person walks in to surrender?
A: According to the opinion, the records employee should not take custody. The opinion recommended that police agencies have a commissioned officer make the arrest. Operationally, that may mean keeping the surrendering person in a public area while a sworn officer is summoned.

Q: What if no commissioned officer is available?
A: The opinion did not address operational logistics, but the legal answer is unchanged: the act of arrest must be performed by a commissioned officer. Booking and intake records work that follows arrest can be performed by other staff.

Q: Could this rule apply to other front-desk activities?
A: The opinion was specifically about warrant execution. Other front-desk activities (taking reports, processing fingerprint requests) are not arrests and are not subject to CrR 2.2(d)(1). But agencies should be careful that "voluntary" interactions do not slide into custody without a commissioned officer.

Background and statutory framework

The federal source for the arrest-equals-seizure rule is the Fourth Amendment, applied through Albright v. Oliver, 510 U.S. 266 (1994). Washington courts measure arrest by the same "free to leave" standard (Lewis; Hauser).

The court rule is CrR 2.2. CrR 2.2(c) provides that arrest warrants "shall command that the defendant be arrested," and CrR 2.2(d)(1) provides that they "shall be executed only by a peace officer." The rule does not define "peace officer."

The relevant statutory definitions form a layered scheme. RCW 9A.04.110(15) defines a "peace officer" for the criminal code as "a duly appointed city, county, or state law enforcement officer." RCW 41.26.030(18) (LEOFF) requires a commissioned, full-time, fully compensated officer with general criminal enforcement authority, excluding clerical and secretarial personnel. RCW 10.93.020(3) carries forward the same commissioned/full-time/fully compensated/general-authority requirements for a "general authority Washington peace officer."

Local code provisions consistently distinguish commissioned officers from civilian police personnel. The opinion cited Bothell Municipal Code § 2.28.050, Olympia Municipal Code § 2.36.085, and Poulsbo Municipal Code § 2.26.030 as examples.

Citations and references

Statutes and rules:
- CrR 2.2(d)(1) – warrant executed only by peace officer
- RCW 9A.04.110(15) – peace officer definition for criminal code
- RCW 41.26.030(18) – commissioned law enforcement officer
- RCW 10.93.020(3) – general authority Washington peace officer

Cases:
- Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807 (1994), U.S. Supreme Court, surrender as Fourth Amendment seizure
- State v. Lewis, 59 Wn. App. 834, 801 P.2d 289 (1990), Washington Court of Appeals, arrest definition
- State v. Ollivier, 178 Wn.2d 813, 312 P.3d 1 (2013), Washington Supreme Court, court rule construction

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/accepting-custody-person-who-voluntarily-surrenders-arrest-warrant

Original opinion text

Attorney General Bob Ferguson

ARREST—LAW ENFORCEMENT OFFICERS—POLICE—Accepting Into Custody A Person Who Voluntarily Surrenders On An Arrest Warrant

1. Accepting a person into custody who voluntarily surrenders pursuant to an arrest warrant constitutes an arrest.

2. Only a commissioned Washington law enforcement officer with the power to enforce criminal laws may arrest a person who voluntarily surrenders pursuant to an arrest warrant.

September 14, 2015

The Honorable Larry Springer

State Representative, District 45

PO Box 40600

Olympia, WA 98504-0600

Cite As:

AGO 2015 No. 4

Dear Representative Springer:

By letter previously acknowledged, you have requested our opinion on a question which we have slightly paraphrased and addressed as two questions:

1. Does the act of accepting into custody someone who voluntarily surrenders under an arrest warrant constitute an arrest?

2. If the answer to Question 1 is yes, may a non-commissioned police employee arrest someone who voluntarily surrenders under an arrest warrant, or may the arrest only be performed by a commissioned law enforcement officer?

BRIEF ANSWER

1. Yes. A reasonable person who voluntarily surrenders, knowing that a warrant exists for his or her arrest, would not feel free to leave police presence. The acceptance of that surrender would thus constitute an arrest for purposes of the Fourth Amendment.

2. Only a commissioned Washington law enforcement officer with the power to enforce the criminal laws of the State of Washington may arrest someone who voluntarily surrenders under an arrest warrant. Therefore, a non-commissioned police employee is not authorized to arrest someone who voluntarily surrenders under an arrest warrant.

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ANALYSIS

1. Does the act of accepting into custody someone who voluntarily surrenders under an arrest warrant constitute an arrest?

We conclude in response to your first question that the act of accepting into custody a person who has voluntarily surrendered under an arrest warrant is an arrest. Washington courts interpreting the Fourth Amendment hold that an arrest occurs when a suspect reasonably believes his or her freedom of action has been curtailed. E.g., State v. Lewis, 59 Wn. App. 834, 836, 801 P.2d 289 (1990). One is under arrest from the moment he or she is not free to go. State v. Hauser, 19 Wn. App. 506, 514, 576 P.2d 420 (1978). This description of what constitutes an arrest also describes the circumstance of a person who surrenders pursuant to an arrest warrant, and so an arrest occurs by accepting such a person into custody.

Although we have not located any Washington cases directly addressing whether accepting into custody a person who voluntarily surrenders is an arrest, the United States Supreme Court and many lower courts have so concluded. Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994) (plurality opinion) (holding arrestee’s “surrender to the State’s show of authority constituted a seizure for purposes of the Fourth Amendment”); id. at 276 (Ginsburg, J., concurring) (“Albright’s submission to arrest unquestionably constituted a seizure for purposes of the Fourth Amendment.”); id. at 289 (Souter, J., concurring in judgment) (noting the “Fourth Amendment seizure that followed when [Albright] surrendered himself into police custody”); see also, e.g., Whiting v. Traylor, 85 F.3d 581, 585 n.6 (11th Cir. 1996) (holding surrender in response to arrest warrant was a “seizure”); Caldwell v. Jones, 513 F. Supp. 2d 1000, 1009 (N.D. Ind. 2007) (“Numerous cases have held that voluntary surrender in response to an arrest warrant is the equivalent of a seizure under the Fourth Amendment.”).

An arrest warrant is neither a summons to appear before the court (cf. CrR 2.2(b) (Issuance of Summons in Lieu of Warrant)) nor an invitation to meet voluntarily with law enforcement. The arrest warrant expressly “command[s] that the defendant be arrested[.]” CrR 2.2(c). When a person arrives at a police station knowing that a warrant exists for his or her arrest, and makes clear his or her intent to surrender under that warrant, it would be unreasonable for that person to believe that he or she is then free to leave. Instead, that person fully expects to be arrested and taken into custody absent an express instruction that he or she may leave and appear before the court at a later date.

Therefore, accepting a voluntary surrender under an arrest warrant constitutes an arrest for purposes of the Fourth Amendment.

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2. If the answer to Question 1 is yes, may a non-commissioned police employee arrest someone who voluntarily surrenders under an arrest warrant, or may the arrest only be performed by a commissioned law enforcement officer?

Having answered Question 1 in the affirmative, the question becomes who may perform an arrest of someone who voluntarily surrenders under an arrest warrant. Specifically, is the person performing the arrest required to be a commissioned law enforcement officer? We conclude that only a commissioned law enforcement officer can perform the arrest.

In Washington, an arrest warrant “shall be directed to all peace officers in the state and shall be executed only by a peace officer.” CrR 2.2(d)(1) (emphasis added). This controlling rule raises a key interpretive question: Who qualifies as a “peace officer” who may execute an arrest warrant?[1] The term “peace officer” is not defined by CrR 2.2, any other Superior Court Criminal Rule, or the commentary to those Rules. Thus, we must interpret what the drafters of CrR 2.2 intended by restricting the execution of an arrest warrant to a peace officer.

In construing court rules, Washington courts use the same rules that apply when construing statutes. State v. Ollivier, 178 Wn.2d 813, 852, 312 P.3d 1 (2013). Analysis of a rule begins with its plain language, according words in the rule their ordinary meaning. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). Courts determine the plain meaning of nontechnical statutory terms from their dictionary definitions. Id. To the extent any ambiguity remains, we also examine “the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 909, 154 P.3d 882 (2007) (quoting Tingey v. Haisch, 159 Wn.2d 652, 657, 152 P.3d 1020 (2007)).

We begin with the plain language of CrR 2.2. The leading legal dictionary defines “peace officer” as an eighteenth-century word meaning a “civil officer (such as a sheriff or police officer) appointed to maintain public tranquility and order; esp., a person designated by public authority to keep the peace and arrest persons guilty or suspected of crime.” Black’s Law Dictionary 1311 (10th ed. 2014). A lay dictionary defines “peace officer” as “a civil officer (as a sheriff, constable, policeman) whose duty it is to preserve the public peace.” Webster’s Third New International Dictionary 1660 (2002).

From these dictionary definitions, we discern one key principle bearing on the meaning of “peace officer.” A peace officer is “designated” or “appointed” by some person or entity (such as a mayor, chief of police, or city council) that holds the power to select personnel for law enforcement positions. That selection, designation, or appointment may also be called a

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commission. Bartlett’s Roget’s Thesaurus 382.1 (1st ed. 1996); Kintz, 169 Wn.2d at 547 (“If necessary, it is also appropriate to rely on the thesaurus when interpreting statutes.”).

We next examine the language of related statutory provisions for further guidance as to the meaning of “peace officer.” Washington statutes addressing substantive crimes and criminal procedure, RCW Title 9A and RCW Title 10, suggest what the Washington Supreme Court might have meant by using the phrase “peace officer” in the Criminal Rules. For purposes of the Washington criminal code, a peace officer “means a duly appointed city, county, or state law enforcement officer[.]” RCW 9A.04.110(15). In turn, the term “law enforcement officer” is defined in several places throughout the Revised Code of Washington. We have previously relied upon RCW 41.26.030(3) in opining that “the term ‘law enforcement officer’ consistently refers in Washington statute to commissioned officers with the power to arrest[.]” AGO 2005 No. 8, at 5 (citing RCW 41.26.030(3)). We concluded that this definition applied to RCW 70.48.130’s use of the term “law enforcement officers” to exclude county or state prosecuting attorneys. AGO 2005 No. 8, at 5. Here, we believe that using RCW 41.26.030(3)’s definition to interpret the term “law enforcement officer” in RCW 9A.04.110(15) is likewise appropriate.

The definition of “law enforcement officer” in the laws governing the Washington Law Enforcement Officers’ and Firefighters’ Retirement System, RCW 41.26, emphasizes that the officer must be commissioned: “‘Law enforcement officer’ . . . means any person who is commissioned and employed by an employer on a full time, fully compensated basis to enforce the criminal laws of the state of Washington generally[.]” RCW 41.26.030(18) (emphasis added). This definition further distinguishes law enforcement employees who do not possess a commission: “No person who is serving in a position that is basically clerical or secretarial in nature, and who is not commissioned shall be considered a law enforcement officer[.]” RCW 41.26.030(18)(a). Lastly, as to city police officers:

Only such full time commissioned law enforcement personnel as have been appointed to offices, positions, or ranks in the police department which have been specifically created or otherwise expressly provided for and designated by city charter provision or by ordinance enacted by the legislative body of the city shall be considered city police officers[.]

RCW 41.26.030(18)(c) (emphasis added). Thus, it appears clear from the statute that a law enforcement officer (or “peace officer” under RCW 9A.040.110(15)’s definition) is required to hold a commission. It is likewise clear that someone who holds a primarily clerical/secretarial position and lacks a commission is not considered a law enforcement officer. At least one court interpreting RCW 41.26 has recognized this distinction. See Adams v. City of Seattle, 173 Wn. App. 398, 399 & n.2, 408-09, 294 P.3d 774 (2013) (distinguishing between appellants’ employment as “commissioned law enforcement officers” and previous “noncommissioned positions” such as laborer, transit operator, and police cadet; appellants’ time served in noncommissioned positions was ineligible for service credits in calculating law enforcement retirement benefits).

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Furthermore, the definition of “law enforcement officer” in RCW 41.26.030 closely mirrors the definitional language of the Washington Mutual Aid Peace Officers Powers Act of 1985.[2] That section defines a “general authority Washington peace officer” as “any full-time, fully compensated and elected, appointed, or employed officer of a general authority Washington law enforcement agency who is commissioned to enforce the criminal laws of the state of Washington generally.” RCW 10.93.020(3) (emphasis added). Indeed, one commentator takes the view that the terms peace officer and law enforcement officer in the Washington statutes “appear to be synonymous.” 13A Douglas J. Ende, Washington Practice, Criminal Law § 1805 (2014-15 ed.); cf. State v. Hardgrove, 154 Wn. App. 182, 188-89, 225 P.3d 357 (2010) (fully commissioned Washington State University police officer was a “general authority Washington peace officer” under RCW 10.93.020 and was authorized to make a traffic stop within the City of Pullman). Importantly for our purposes, both definitions—RCW 41.26.030(18) and RCW 10.93.020(3)—provide that a peace officer is a commissioned, full-time employee of a Washington law enforcement agency who has general enforcement power over the criminal laws of Washington.[3]

Finally, we observe that the City of Bothell, one of the entities you mention in requesting our opinion, recognizes the distinction between commissioned and non-commissioned police employees:

A. The police department shall consist of such regular commissioned personnel in such numbers as shall be determined by the city council . . . .

B. The department may be augmented by such clerical personnel as the city council may from time to time provide. Such clerical personnel shall not be commissioned police officers nor shall they be subject to nor under any of the civil service regulations in force or effect.

Bothell Mun. Code § 2.28.050 (emphasis added). Similar provisions exist in the laws of other Washington code cities. See, e.g., Olympia Mun. Code § 2.36.085 (“The chief of police may appoint . . . deputies and other public officers for the purpose of enforcing city laws and

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codes . . . . Upon such appointment, the chief of police shall issue to the appointee a general or limited commission card . . . .”); Poulsbo Mun. Code § 2.26.030 (“All persons hired as law enforcement officers for the Poulsbo police department shall be commissioned as police officers for the city of Poulsbo prior to being assigned to law enforcement duties. All personnel below the rank of chief shall be appointed and commissioned by the mayor in accordance with any applicable law, ordinance, rule or regulation relating to civil service . . . .”). These provisions square with the plain-language, dictionary understandings of “peace officer” discussed earlier: persons who are commissioned or appointed by a public entity or person that has the power to designate law enforcement officers (in contrast to non-commissioned personnel who augment the law enforcement agency’s duties).

Applying this definitional and statutory analysis to your question, we conclude that a police employee who lacks a commission is not authorized to take into custody someone who voluntarily surrenders under an arrest warrant. Under CrR 2.2(d)(1), that duty must instead be performed by a commissioned peace officer—a full-time, fully compensated law enforcement officer whose commission includes the power to enforce the criminal laws of the state of Washington generally. This is so because CrR 2.2(d)(1) limits arrest powers to “peace officers,” a term we construe to be limited to commissioned law enforcement officers as described above.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

STEPHEN T. FAIRCHILD

Assistant Attorney General

wros

[1] We believe there is little doubt as to the meaning of “execute” in CrR 2.2. Black’s Law Dictionary defines “execute” as “[t]o perform or complete (a contract or duty).” Black’s Law Dictionary 689 (10th ed. 2014). Another dictionary defines “execute” as “to carry out” or “do what is provided or required by.” Webster’s Third New International Dictionary 794 (2002). Based on these definitions, we have no difficulty concluding that “executing” an arrest warrant means taking into custody—that is, arresting—the person whom the warrant commands peace officers to arrest.

[2] The Washington legislature enacted the Washington Mutual Aid Peace Officers Powers Act of 1985 to expand the ability of Washington peace officers to act throughout the state, rather than only within their territorial jurisdictions. Sheimo v. Bengston, 64 Wn. App. 545, 549, 825 P.2d 343 (1992); RCW 10.93.001(3) (legislature intended to “modify current restrictions upon the limited territorial and enforcement authority of general authority peace officers and to effectuate mutual aid among agencies”).

[3] We also considered whether RCW 43.101.010(11)’s definition of peace officer—“any law enforcement personnel subject to the basic law enforcement training requirement of RCW 43.101.200”—would aid our interpretation. As we did in AGO 2009 No. 7, at page 9, we reject its use here. The legislature expressly limited this definition of peace officer to the purposes of RCW 43.101, and did not intend it to be used to construe other RCW titles. AGO 2009 No. 7, at 9. No other section of the RCW relies on it. By contrast, the definitions of “peace officer” in RCW 9A.04.110(15) and RCW 10.93.020 are used to define terms in several other titles of the RCW. See, e.g., RCW 19.02.115(3)(f) (“peace officer as defined in RCW 9A.04.110”); RCW 43.43.970 (“general authority Washington peace officer as defined in RCW 10.93.020”).