Citizen warrants open to abuse
Stephanie, who spoke on condition that her last name would not be used, says she has committed no crimes. Instead she believes she is a victim of a Virginia law that allows county magistrates acting on probable cause to issue arrest warrants when no police investigation has taken place and no evidence has been collected.
Although warrants obtained in such a fashion can be abused, the option to get them is “necessary in the process,” according to Commonwealth’s Attorney Paul Ebert. He said magistrates, who decide whether or not to issue the warrants, are “pretty inquisitive.”
The dispute started when Stephanie was four weeks pregnant with her second child and her blind neighbor left her seeing-eye dog outside, barking all night.
She called that night to ask the neighbor to get the dog to stop barking. Stephanie said she and the woman argued on the phone. Confrontations escalated from that point on over the following months, culminating in the neighbor obtaining a no trespass order against her.
According to a letter sent to Prince William General District Court by the neighbor’s husband, Stephanie’s then 1-year-old son was repeatedly “teasing and grabbing the dog and poking the dog in the face.”
In May, five months after Stephanie’s baby was born, she went outside to remove a hanging plant from the porch of her town house before a violent storm, so that the wind would not blow any debris from the plant into her neighbor’s muddy yard, which at the time was being dug up by landscapers. She did this because she did not want to have any further problems with her neighbor, she said.
The neighbor apparently called 911, Stephanie said, because police arrived with lights and sirens on. She said when they got there, her neighbor’s friend was on Stephanie’s property threatening her with violence, swearing and upsetting her son, now 2. After talking to the neighbor, the police came to her home.
The officer refused to arrest Stephanie because he found no evidence that she had violated the no-trespass order, she said. She said the officer noted that the neighbor was blind and could not see her on the property. The neighbor said she saw a silhouette, but the officer did not believe her, Stephanie said.
The letter from the neighbor’s husband said his wife is 80-percent blind and “has the ability to discern shapes and colors with relatively good vision at short distances.”
Stephanie said the officer told her he did not see her footprints in her neighbor’s muddy yard.
“The following night the sheriff’s deputy comes to my house with a citizen’s arrest warrant,” she said. “What she had done was to go to the magistrate’s office. I was charged with trespassing.”
To have an arrest warrant issued, an aggrieved person must go to a local magistrate’s office and file a criminal complaint. With probable cause, the magistrate will issue a warrant. It will then be incumbent on local police to make the arrest.
After her June arraignment related to her trespassing arrest, Stephanie was paid another visit by sheriff’s deputies.
In September, Stephanie’s neighbor returned to the magistrate’s office and got another arrest warrant stating that she violated the judge’s no trespass order.
“Unless the magistrate had some reason to disbelieve this person, the magistrate is going to issue the warrant,” said Tony Kostelecky, Manassas defense attorney and former commonwealth’s attorney who is a sole practitioner.
“A lot of innocent people are subject to the system. Sometimes, who ever serves the warrant will handcuff them. They all have to be processed, fingerprinted and photographed,” he said.
Ronald Robinson, Stephanie’s attorney, said the financial burden citizen arrest warrants place on the accused is significant.
“The biggest sticking point is the money it costs the person who is accused. They’re usually out $500 or $600 per court appearance, minimum,” Robinson said. “If someone is willing to go down and swear an affidavit, they basically get free legal services. Their lawyer is the prosecutor.”
Stephanie appeared in court June 6, and has to go again Oct. 11 for the second charge filed against her. She said she has an expungement hearing Dec. 11 related to the first charge.
Probable cause, according to Prince William County Chief Magistrate Richard S. Sanborn, is anything that leads the magistrate to believe that a crime did occur and that the person being accused is the one who committed it.
There are 10 magistrates in Prince William County, five in a Manassas office and five in Woodbridge. They are selected after a thorough application process by the chief magistrate who recommends two or three of his top applicants to the chief circuit court judge, who makes the final four-year appointment. Afterward they undergo training offered through the state Supreme Court.
Sanborn said that there is no strict formula for what constitutes probable cause. It is more of a judgment call. This means that probable cause can be as simple as the magistrate believing the sworn testimony of the complainant.
“If it comes down to no evidence, no witness and if the complaining witness is believable in our opinion and experience, we may issue a warrant and maybe even serve it as a summons,” Sanborn said.
This is the case in the complaint against Stephanie, where the sworn statement is presented on paper. It states that Stephanie “violated this no trespass notice on May 2 when she entered our property by acting in an intimidating manner.”
It does not state on the form what that intimidating manner was.
Although that may not be fair if the accused is innocent, Sanborn said, the complainant must be protected as well.
“We have to protect the injured person in terms of what the law provides,” Sanborn said. “We also have to protect the person who is being complained against.”
He said magistrates always try to be absolutely sure they are not issuing a warrant for an innocent person and require that complainants tell them whether or not a case was investigated by police. Magistrates also want to know if, in the case of an assault, medical treatment was sought by the victim.
But none of those things are required for the warrant to be issued. A magistrate only has to believe the statement made in the complaint, as in the case against Stephanie.
“We try to get as much of both sides as possible,” Sanborn said. “When all that has been worked through, if you feel you have been violated and if you are willing to raise your right hand, we might very well find probable cause to issue a warrant.”
That opens the door for abuse of the system, some say.
“The assumption when an officer goes before a magistrate is that they are trained professionals who have used their skills to paint an accurate picture to the magistrate,” said Kent Willis, executive director of the American Civil Liberties Union’s Virginia chapter. “When an angry neighbor goes before a magistrate, the same may not be true.”
That can lead to many problems for the people being arrested.
“They’re decent citizens and they’re being treated like common criminals,” Kostelecky said.
A lot of citizen arrest warrants are sought after traffic disputes, domestic disturbances, landlord-tenant disputes, employer-employee disputes and a variety of other incidents. Prince William County magistrates see about five or six a day.
Often times people will go to the magistrate for a warrant only after the police have found no probable cause and subsequently referred them.
Kostelecky said some people get the warrants again and again to resolve issues they have with others.
“I think it’s a system that ought to be looked at,” he said. “Maybe a commission, or maybe the governor or the legislature ought to look at it.”
The ACLU’s Willis said the system would be great if it was always used responsibly. But what happens in practice is the most important thing, he said.
“This is the exact sort of thing that the Virginia General Assembly should be studying on a regular basis,” he said.
Some states, including Pennsylvania and New York, do not issue warrants without a police report first being generated.
“If you’re going to allege an assault, the district attorney wants a police report of the incident,” said Lt. Maureen Zadorozny, spokeswoman for the Yonkers, N.Y., police department. “If it’s a simple assault, generally, there will not be a warrant issued; you will both be called in before a judge or sent in to some kind of mediation.”
Sgt. Rowland Lee, spokesman for the Philadelphia police department, said when a complaint is made to the district attorney’s office, the police are always involved.
In Maryland, a commissioner can evaluate criminal complaints. A commissioner is the equivalent of a magistrate.
“When you make the application, you do it under oath,” said Annapolis, Md., police department spokesman How Dalton. “We find that some people may embellish and enhance [their statements], but usually they don’t out and out lie.”
Staff writer Daniel Drew can be reached at (703) 878-8065.