Authority of Florida Police Officers to Make Arrests on the Basis of FBI Pick-Up Notices ( 1953 )

Authority of Florida Police Officers to Make
Arrests on the Basis of FBI Pick-Up Notices
The authority of a Florida police officer to make a warrantless arrest for an alleged violation of federal
law depends on state law and cannot be based merely on the existence of an FBI pick-up notice.
January 28, 1953
MEMORANDUM OPINION FOR THE DIRECTOR
FEDERAL BUREAU OF INVESTIGATION
With your memorandum of October 9, 1952, addressed to the Deputy Attorney
General and referred to this office for reply, you sent a copy of an opinion given
by Attorney General Richard W. Ervin of Florida to the Florida Peace Officers’
Association (dated September 15, 1952) containing answers to several questions
regarding the authority to make arrests by municipal police officers of Florida.
The portion concerning the federal government and this Department came under
the heading of question 4. The question read:
4. What authority, if any, does a municipal police officer have to
make arrests upon the basis of pick-up notices sent out by other
officers?
The answer took the view that under the Florida statutes a municipal police officer
(regarded as a peace officer, see page 2 of the opinion), who receives a pick-up
notice from another peace officer of Florida showing that a named person is
wanted for a felony under the laws of Florida, may accept the notice as reasonable
ground to believe that a felony has been committed and reasonable ground to
believe that the wanted person committed it, and has authority to arrest the wanted
person. On the other hand, without assigning any reason the answer assumed a
distinction in the case of pick-up notices received from federal officers and further
assumed that a municipal police officer has only the common law right of a private
citizen to arrest for a federal felony. If he should make an arrest, it was stated the
municipal police officer acts at his peril (subject to liabilities indicated in the
answer to question 5) when he arrests for a federal felony on the strength of the
federal pick-up notice, even if it is sufficient to give him reasonable ground to
believe that a federal felony has been committed and that the person to be arrested
has committed it, because, as in the case of arrest by a private citizen, reasonable
ground to believe that a federal felony has been committed will not suffice; a
federal felony must actually have been committed and the municipal police officer
must have reasonable ground to believe that the person to be arrested committed it.
The answer further stated that a municipal police officer acting as a private citizen
had no authority to arrest for a federal misdemeanor upon the basis of a pick-up
notice.
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You have pointed out that substantially all of the requests for pick-ups made by
the FBI are in cases where federal warrants are outstanding and that the opinion
does not distinguish between the situation where a warrant is outstanding and the
situation where one has not been issued.
We think that the Florida opinion on this subject is unfortunate in this and
several other respects. In testing the lawfulness of arrest, if we were to assume that
an arrest by a state or municipal police officer pursuant to an FBI pick-up notice is
an arrest without a warrant, there is no basis in federal or state law at the present
time for distinguishing between the conduct of a state or local police officer when
he arrests without a warrant for a state felony or a federal felony. The United
States Supreme Court dealt squarely with the issue in United States v. Di Re, 332
U.S. 581 (1948). Speaking through Mr. Justice Jackson, the Court said:
We believe, however, that in absence of an applicable federal
statute the law of the state where an arrest without warrant takes
place determines its validity. By one of the earliest acts of Congress,
the principle of which is still retained, the arrest by judicial process
for a federal offense must be “agreeably to the usual mode of process
against offenders in such state.”8 There is no reason to believe that
state law is not an equally appropriate standard by which to test
arrests without warrant, except in those cases where Congress has
enacted a federal rule. Indeed the enactment of a federal rule in some
specific cases seems to imply the absence of any general federal law
of arrest.
. . . No act of Congress lays down a general federal rule for arrest
without warrant for federal offenses. None purports to supersede
state law. And none applies to this arrest which, while for a federal
offense, was made by a state officer accompanied by federal officers
who had no power of arrest. Therefore the New York statute pro-
vides the standard by which this arrest must stand or fall.
Id. at 589–90, 591 (footnote 8 below is from page 589 of the reported opinion).
The test which the Court applied (in this arrest by a state police officer for a
federal war rationing violation) was section 177 of the New York Code of
Criminal Procedure, which is a statute cast in general terms providing the
8
The Act of September 24, 1789 (Ch. 20, § 33, 1 Stat. 91), concerning arrest with warrant, provid-
ed: “That for any crime or offence against the United States, the offender may, by any justice or judge
of the United States, or by any justice of the peace, or other magistrate of any of the United States
where he may be found agreeably to the usual mode of process against offenders in such state, and at
the expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial
before such court of the United States as by this act has cognizance of the offense.” This provision has
remained substantially similar to this day. 18 U.S.C. § 591. See also 1 Op. Att’y. Gen. 85, 86.
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authority of a peace officer to arrest without warrant in three types of cases. The
statute resembles section 901.15, Florida Statutes, 1951 (which is quoted at length
at a later point in this memorandum), except that the Florida statute is somewhat
broader in its coverage. It is important for our purposes to observe that, although
the arrest and subsequent search in Di Re failed because the arresting officer had
no information which would lead him to believe that either a felony or misde-
meanor had been committed by Di Re, the action of the arresting officer was
tested by New York’s statutes on arrest applicable to peace officers and not on any
theory that the state peace officer was acting as a private citizen or that there was
any special or different rule when he acted to arrest for a federal offense.
Di Re was followed shortly by Johnson v. United States, 333 U.S. 10 (1948), in
which an arrest on a federal narcotics violation, effected without a warrant by
federal narcotics agents and a city police officer, was tested by the law of the State
of Washington applicable to state officers, the Court holding again that state law
determines the validity of arrest without warrant.
Still later, the contemporaneous state of the law of arrest, as it was confirmed in
Di Re, was described by Judge Learned Hand in United States v. Coplon as
follows:
In the absence of some controlling federal law the validity of an
arrest for a federal crime depends upon whether an arrest for a state
crime would have been valid under the state law, if made in the same
circumstances. Whatever the doubts which might have existed as to
this before 1948, they were laid in that year. At common law a pri-
vate person, as distinct from a peace officer, had the power to arrest
without warrant for a felony, committed in his presence, and for one,
actually committed in the past, if he had reasonable ground to sup-
pose that it had been committed by the person whom he arrested. A
“constable” or other “conservator of the peace” had all the powers of
arrest without warrant of a private person, and in addition the power
to arrest for felony, although no felony had actually been committed,
if he had reasonable ground to suppose that the person arrested had
committed the felony. That was the only distinction between their
powers and those of a private person. The law of New York is near-
ly, if not quite, in accord with this.
185 F.2d 629, 633–34 (2d Cir. 1951) (footnotes omitted).
It might be observed that the law of Florida as codified in section 901.15, Flor-
ida Statutes, 1951, is even more nearly in accord with the common law, as noted in
Dorsey v. United States, 174 F.2d 899 (5th Cir. 1949). In this case, cited by the
Florida Attorney General’s opinion, the Court acknowledged the rule of Di Re; but
the point of Dorsey is that investigators of the federal Office of Price Administra-
tion who the court said were not arresting officers, but who nevertheless made an
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arrest without a warrant for a federal offense, had no greater rights than private
persons in effecting the arrest. In Florida, though the statutes make no provision
for arrest by a private person, the Court held he may nevertheless act under the
common law rule to arrest for a felony committed in his presence. This was the
situation in the case and the arrest was sustained. The opinion is entirely in accord
with the views laid down by the Supreme Court and applied in the other circuits,
as hereinafter noted. But the holding of the Dorsey case does not deal with the
powers of arresting officers, and in our view is misapplied if it is used, as it
appears to be used in the Florida Attorney General’s opinion, to correlate the
powers of arresting officers, state or federal, to that of private citizens in making
arrests without warrants for federal felonies.
Illustrating that the Supreme Court opinions in Di Re and Johnson did not
establish “new” law, but confirmed a long-accepted practice, is Cline v. United
States, in which the court held that “[t]he procedure for making arrests which
obtains under the state practice is applicable to arrests made for crimes against the
United States,” 9 F.2d 621, 621 (9th Cir. 1925) (citing Prize Ship and Crew—How
To Be Disposed Of, 1 Op. Att’y. Gen. 85, 86 (1798)), and a group of early federal
cases. Other cases in other circuits or districts which have followed and applied
the Di Re case are Pon v. United States, 168 F.2d 373 (1st Cir. 1948), a narcotics
case, holding the validity of arrest to be determined by the law of Massachusetts
under which an arrest by an officer without a warrant is authorized if the officer
has reasonable grounds to believe that a felony was committed by the defendant;
Brubaker v. United States, 183 F.2d 894 (6th Cir. 1950), a Dyer Act violation,
holding the legality of the arrest to be governed by the law of Tennessee, which
provides that an officer may without a warrant arrest a person when a felony has in
fact been committed and the officer has reasonable cause for believing the person
arrested committed the felony; United States v. Horton, 86 F. Supp. 92 (W.D.
Mich. 1949), upholding an arrest without a warrant by city police for a federal
narcotics violation as tested by the law of Michigan, the pertinent of which are
practically identical with subsection (2) and (3) of section 901.15, Florida Statutes,
1951; and United States v. Guller, 101 F. Supp. 176 (E.D. Pa. 1951), testing an
arrest in a narcotics case by the Pennsylvania law which accords with the common
law rules.
In the Di Re and subsequent cases involving arrests for federal offenses by state
officers, apparently it was accepted without argument, so far as the opinions show,
that a state officer may arrest for federal offenses. The issue was the standard to be
applied. But the matter assumed had not gone without argument, earlier, and the
leading case is probably Marsh v. United States, 29 F.2d 172 (2d Cir. 1928). In an
opinion by Judge Learned Hand, the court held that a state police officer had
authority to arrest for violation of federal law. The court pointed out that the state
statute (section 177 of the New York Code of Criminal Procedure, the same statute
later applied in Di Re, which provides that a peace officer may without a warrant
arrest a person for a crime committed or attempted in his presence) had been
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universally used by New York police officers in arresting for federal crimes
regardless of whether they were felonies or misdemeanors. But the court went on
to say:
Moreover, we should be disposed a priori so to understand it. Sec-
tion 2 of article 6 of the Constitution makes all laws of the United
States the supreme law of the land, and the National Prohibition Law
is as valid a command within the borders of New York as one of its
own statutes. True, the state may not have, and has not, passed any
legislation in aid of the Eighteenth Amendment, but from that we do
not infer that general words used in her statutes must be interpreted
as excepting crimes which are equally crimes, though not forbidden
by her express will. We are to assume that she is concerned with the
apprehension of offenders against laws of the United States, valid
within her border, though they cannot be prosecuted in her own
courts.
Marsh, 29 F.2d at 174.
The court went on further to reject the argument that Congress in enacting
section 33 of the Judiciary Act of 1789, providing for arrest and commitment or
bail of offenders against federal law by state officials “agreeably to the usual mode
of process against offenders in such state,” had by implication forbidden any state
arrests for federal offenses without warrant. Act of Sept. 24, 1789, ch. 20, § 33, 1
Stat. 73, 91, later codified as amended at Rev. Stat. § 1014 (2d ed. 1878), 18 Stat.
pt. 1, at 189 (repl. vol.), and at 18 U.S.C. § 591 (1925–26), now 18 U.S.C. § 3041
(1952). On the contrary, said the court anticipating what was later held in Di Re, it
would be unreasonable to suppose that it had been the purpose of the Congress to
deny to the United States any help that the states may allow. Marsh was followed
in United States v. One Packard Truck, 55 F.2d 882 (2d Cir. 1932).
In the light of the well-established body of law and practice reviewed here, it
would seem to us that there is no justification, and it is contrary to the precedents,
to read section 901.15, Florida Statutes, 1951, particularly subsections (3) and (4),
as purporting to exclude arrests for federal offenses. The Florida statute is cast in
general terms like the New York, Michigan, Tennessee, Massachusetts, and other
statutes construed by the courts, and its language and derivation afford no basis for
the artificial distinction. Unfortunately in this regard the opinion of the Florida
Attorney General in dealing with question 4 paraphrases rather than quotes the
Florida statute, and in so doing inserts the word “Florida” in several places where
it does not appear in the statute, thereby creating an erroneous impression. For
your benefit there is set out verbatim the provisions of section 901.15:
When arrest by officer without warrant is lawful.—A peace officer
may without warrant arrest a person:
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(1) When the person to be arrested has committed a felony or
misdemeanor or violation of a municipal ordinance in his pres-
ence. In the case of such arrest for a misdemeanor or violation of
a municipal ordinance, the arrest shall be made immediately or on
fresh pursuit.
(2) When a felony has in fact been committed, and he has reason-
able ground to believe that the person to be arrested has commit-
ted it.
(3) When he has reasonable ground to believe that a felony has
been or is being committed and reasonable ground to believe that
the person to be arrested has committed or is committing it.
(4) When a warrant has been issued charging any criminal offense
and has been placed in the hands of any peace officer for execu-
tion.
These are, as said of the comparable New York statute by Judge Learned Hand,
“general words used in her statutes,” Marsh, 29 F.2d at 174, from which it is not to
be inferred that there are excepted crimes which are equally crimes by the supreme
law of the land though not forbidden expressly by Florida law. The notion that
federal criminal law may be “foreign” to the states was laid to rest by the Supreme
Court in Testa v. Katt, 330 U.S. 386 (1947), where the Court said:
It cannot be assumed, the supremacy clause considered, that the
responsibilities of a state to enforce the laws of a sister state are iden-
tical with its responsibilities to enforce federal laws. Such an
assumption represents an erroneous evaluation of the statutes of
Congress and the prior decisions of this Court in their historic set-
ting. Those decisions establish that state courts do not bear the same
relation to the United States that they do to foreign countries. The
first Congress that convened after the Constitution was adopted con-
ferred jurisdiction upon the state courts to enforce important federal
civil laws, and succeeding Congresses conferred on the states juris-
diction over federal crimes and actions for penalties and forfeitures.
Enforcement of federal laws by state courts did not go unchal-
lenged. Violent public controversies existed throughout the first part
of the Nineteenth Century until the 1860’s concerning the extent of
the constitutional supremacy of the Federal Government. During that
period there were instances in which this Court and state courts
broadly questioned the power and duty of state courts to exercise
their jurisdiction to enforce United States civil and penal statutes or
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Authority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices
the power of the Federal Government to require them to do so. But
after the fundamental issues over the extent of federal supremacy
had been resolved by war, this Court took occasion in 1876 to review
the phase of the controversy concerning the relationship of state
courts to the Federal Government. Claflin v. Houseman, 93 U.S. 130.
The opinion of a unanimous court in that case was strongly but-
tressed by historic references and persuasive reasoning. It repudiated
the assumption that federal laws can be considered by the states as
though they were laws emanating from a foreign sovereign. Its
teaching is that the Constitution and the laws passed pursuant to it
are the supreme laws of the land, binding alike upon states, courts,
and the people, “any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” It asserted that the obligation of
states to enforce these federal laws is not lessened by reason of the
form in which they are cast or the remedy which they provide.
Id. at 389–91 (footnotes omitted).
It would therefore seem to us that the Attorney General of Florida should have
no difficulty in regarding subsection (3) of section 901.15 as ample authority for a
municipal police officer to arrest without a warrant for a federal felony on a pick-
up notice emanating from a federal officer. As the Attorney General of Florida has
already indicated to be the case for state pick-up notices in state felonies, so the
federal pick-up notice can equally afford the arresting officer reasonable ground to
believe that a federal felony has been committed and that the wanted person has
committed it. Reliance on hearsay, and on reasonableness of belief or reasonable
or probable cause, in making arrests is supported in the cases, such as United
States v. Bianco, 189 F.2d 716 (3d Cir. 1951); United States v. Heitner, 149 F.2d
105 (2d Cir. 1945), cert. denied sub nom. Cryne v. United States, 326 U.S. 727,
reh’g denied, 326 U.S. 809; Brinegar v. United States, 338 U.S. 160 (1949).
To the extent that the FBI pick-up notice advises with particularity that a war-
rant of arrest has been placed in the hands of a federal marshal or deputy (who, it
will be remembered, enjoys the corresponding powers of a state sheriff, 28 U.S.C.
§ 549, and is regarded as a peace officer, In re Neagle, 135 U.S. 1, 68–69 (1890)),
or any other peace officer, it would also seem that the Attorney General of Florida
could with propriety advise that subsection (4) of section 901.15, Florida Statutes,
1951, might also provide the basis for a Florida peace officer arresting the wanted
person in reliance on the pick-up notice, whether the offense charged is a felony or
misdemeanor (since the express wording of subsection (4) covers “any criminal
offense”), without the Florida peace officer having the warrant in his possession.
Rule 4(c)(1) of the Federal Rules of Criminal Procedure (1952) permits the federal
criminal warrant to be executed “by a marshal or by some other officer authorized
by law”; under Rule 4(c)(3), the officer need not have a warrant in his possession
at the time of the arrest; and, under Rule 4(c)(2) and Rule 9(c)(1), the warrant may
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be executed anywhere in the United States regardless of the district in which it
issued. See, e.g., United States v. Donnelly, 179 F.2d 227 (7th Cir. 1950) (sustain-
ing an arrest in Missouri made by FBI agents and Missouri police as the result of a
teletype message from Chicago after issuance of a commissioner’s warrant for the
defendant’s arrest in Chicago), overruled on other grounds, United States v.
Burke, 781 F.3d 1234 (7th Cir. 1985).
In view of the doubt that may have been created by the portion of the Florida
Attorney General’s opinion we have discussed, it would be helpful if reconsidera-
tion of that portion of the opinion could be had.
While the problem, as it affects arrests for federal offenses, is one of interpreta-
tion and application of state law, it has nevertheless been made so by the action of
Congress and the judicial extension of section 33 of the Judiciary Act of 1789 (18
U.S.C. § 3041). The correct application of the appropriate state law in the federal
cases is therefore not only a matter of federal interest but may involve, in the legal
sense, a federal question, cf. Dice v. Akron, Canton and Youngstown R.R. Co., 342
U.S. 359 (1952); Davis v. Wechsler, 263 U.S. 22 (1923).
Since the oversight in interpretation ought to be susceptible of clarification by a
further interpretation, it would be most unfortunate if, as is intimated in your
memorandum, the matter would have to be rectified by state legislation. A request
for, or enactment of, legislation on this point in one state might unnecessarily give
rise to confusion and doubts in the other judicial districts of the United States
where, so far as we know, no similar difficulty has been encountered under
comparable state law.
No doubt you have available suitable means of raising the question with Attor-
ney General Ervin, in order to bring about the desired correction. We might add
that this office has in the past enjoyed good relationships with his office on a
number of matters, and we would be quite willing to do whatever we can to assist.
J. LEE RANKIN
Assistant Attorney General
Executive Adjudications Division
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