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  1. #1

    Default No Probable Cause

    My question involves civil rights in the State of: AR/VA

    I have read under the Fourth Amendment, persons have the right not to be arrested without probable cause.

    If a felony arrest then occurs and a judge writes on the felony arrest record that the charges are nolle prossed and that that it was done so for "For good cause- No probable cause possible for stopped payment check. Matter can only be civil. There is no crime in VA for stopping payment on a check." Then signed by judge.

    Is this a violation.

    No police were not involved in this matter, the warrant was issued based on the accusation of a private citizen. The check was stamped STOP PAY but the charge was 18.2-181 VA. And says with intent to defraud, make, draw, utter or deliver a check knowing that there were insufficient funds in the account of insufficient credit with such banking institution for payment of the check, draft or order.

    A rent check was written for future rents, landlord told tenants to leave, tenants said no problem and we will stop pay on funds for future rents. Stop pay was issued, notice of stop pay was mailed by certified mail return receipt. Person waited 6 days after notice of stop pay and deposited the check anyway then when it came back as stop pay claimed it was a worthless check to magistrate. Felony warrant issued for insufficient funds.

    Now there is a record of felony arrest for larceny, on a person who has had no other arrests other then a drunk in public 20+ years ago in college.

  2. #2
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    Default Re: No Probable Cause

    I somehow missed your question.

    Is what a violation of what?

  3. #3

    Default Re: No Probable Cause

    Not sure why this was moved to criminal records, this is a question about civil rights. While he was arrested there was no probable cause to arrest, the warrant should never have been issued. This was and still is a civil matter not criminal.

    The question is do you feel his civil rights were violated.

    Imagine you being arrested, for something you not only did not do, but there was no proof or reason for the arrest. Other then say your neighbor said hey he wrote me a bad check. Now that the neighbor said it, the police do not even question it. You are arrested based on the word of your neighbor, no other proof exits and the police never even read the report. Next thing you know you are in court defending yourself, and you now have a FELONY arrest on your record.

  4. #4
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    Default Re: No Probable Cause

    Hi Mickey. It is well settled law, yes, that an arrest can not take place without probable cause.

    A Judge can dismiss a case for lack of probable cause, in his or her mind, just as a Grand Jury can refuse to Indict even after arrest, or a Judge finds that probable cause is lacking after a preliminary hearing.

    These factual findings are not necessarily indicative of false probable cause and false arrest.

    To really determine if there was actual malice involved, that is, an arrest took place on fabricated cause, you would have to consult an attorney.

    If the neighbor swore to the facts, when untrue, then this is another avenue to pursue. There is "generally" no case law which mandates an investigation after a sworn statement has been taken, but without one, in many cases, it can amount to "weak" probable cause, although enough for an arrest.

    A general definition of probable cause is: A reasonably prudent officer believes a crime has been, is being, or will be committed, and the suspect is involved.

    You can research that some online.

    PC for arrest is not held to the same legal standard as a conviction, that is, "beyond a reasonable doubt"!!

    An attorney can evaluate the facts, if he believes there was NO PC to arrest, you possibly could sue under 42 USC 1983.


    As an additional note, police enjoy Qualified Immunity. If you sue an officer in his or her official capacity, this burden must be overcome.

    I hope I helped some, but an attorney specializing in criminal and or constitutional law really needs to be consulted.

    Good luck!!


    BOR *Bill of Rights*

  5. #5

    Default Re: No Probable Cause

    Thank you for your response.

    We will not be seeking anything against the officer who served the arrest warrant, he was only doing his job.

    The issue we have here is that the crime on the face of the warrant was not even remotely backed up by any kind of evidence. He was charged with larceny where there was none. A magistrate took the word of someone without proof then proceeded to issue a felony warrant on a charge that was inconsistent, does that make sense? I can only hope I am conveying this properly.

    We found out about the warrant in another state then drove there immediately to take care of it. When we went to the magistrates office to turn him in, the magistrate was confused how the warrant was even issued. She then contacted the chief magistrate to look at it who then called a commonwealth attorney. All were stumped as to the how or even why this was issued. Clearly by what was contained in the arrest warrant there was no crime commited, as stated by all present including the deputy that served the warrant.

    When we went to the council hearing the judge read the complaint then called the commonwealth attorney to the bench and said " read this and tell me where there is probable cause, or a crime". The CA said there was none, that over 90% of stop pays are not filed on, there has to be proof of intent to defraud. Judge then signed off on it and sent us home.

    Now there is a felony arrest for larceny, which can cause issue later on. When you check the box for arrest, how do you then say well I was charged with larceny but I really put a stop pay and the warrant was issued without probable cause.. yadda yadda yadda.... He is on disability at the moment, he broke his hip and had it replaced. He will be seeking employment again so this can come into play possibly.

  6. #6
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    Default Re: No Probable Cause

    Quote Quoting mickey68
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    Thank you for your response.

    We will not be seeking anything against the officer who served the arrest warrant, he was only doing his job.

    The issue we have here is that the crime on the face of the warrant was not even remotely backed up by any kind of evidence. He was charged with larceny where there was none. A magistrate took the word of someone without proof then proceeded to issue a felony warrant on a charge that was inconsistent, does that make sense? I can only hope I am conveying this properly.
    I understand about the officer, but it is even harder to sue a Judge, as they enjoy Judicial or Absolute immunity. It is very very rare when a lawsuit against a Judge can proceed. It is tantamount to suing the President for acts committed in office, you can't do it constitutionally.

    We found out about the warrant in another state then drove there immediately to take care of it. When we went to the magistrates office to turn him in, the magistrate was confused how the warrant was even issued. She then contacted the chief magistrate to look at it who then called a commonwealth attorney. All were stumped as to the how or even why this was issued. Clearly by what was contained in the arrest warrant there was no crime commited, as stated by all present including the deputy that served the warrant.
    That is an unsual set of facts, yes.

    Now there is a felony arrest for larceny, which can cause issue later on. When you check the box for arrest, how do you then say well I was charged with larceny but I really put a stop pay and the warrant was issued without probable cause.. yadda yadda yadda.... He is on disability at the moment, he broke his hip and had it replaced. He will be seeking employment again so this can come into play possibly.
    I don't know how the states in question permit such on job applications. Some only permit an employer to ask if you have ever been convicted of a crime?

    If it is permitted, by law, to ask if he was ever arrested, then he must answer yes, as if he does not, and it shows up on a background check, it will not look good.

    I don't know how to respond to that except to say, in his resume, he can comment on what happened and also include a dismissal order from the Judge as proof.

    BOR

  7. #7

    Default Re: No Probable Cause

    Quote Quoting BOR
    View Post
    A general definition of probable cause is: A reasonably prudent officer believes a crime has been, is being, or will be committed, and the suspect is involved.
    Thing is, there is no law against a stop pay, so he was charged with insufficient funds. There was more then double the funds in the account and it was an open active account. Check was stamped stop pay, not NSF.

  8. #8
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    Default Re: No Probable Cause

    Quote Quoting mickey68
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    Thing is, there is no law against a stop pay, so he was charged with insufficient funds. There was more then double the funds in the account and it was an open active account. Check was stamped stop pay, not NSF.

    I see. Sounds like the officer needs to go back to his academy training on probable cause.

    This really requires the evaluation of a private attorney OR the ACLU.

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