Rule 4.1 Arrest without a warrant.

Committee Comments as Amended Effective August 1, 1997

Except as otherwise provided by law, this rule shall govern arrests in Alabama for criminal offenses, whether classified as violations, misdemeanors, or felonies. Among the exceptions to the rule are minor traffic offenses, which shall continue to be governed by §32-1-4, Ala.Code 1975, and the violation of certain municipal ordinances pursuant to §11-45-9.1 for which release on personal recognizance is provided. Custodial arrest is authorized only for traffic offenses (1) involving DUI; (2) causing or contributing to an accident that results in injury or death; (3) in which the arresting officer has “good cause to believe” the offender committed a felony; or (4) where the person charged refuses to sign the Uniform Traffic Ticket and Complaint promising to appear in court or refuses to comply with the ticket provisions and instructions. § 32-1-4, Ala.Code 1975; Morton v. State, 452 So.2d 1361 (Ala.Crim.App.1984); see also Hays v. City of Jacksonville, 518 So.2d 892 (Ala.Crim.App.1987), and Vickers v. State, 547 So.2d 1191 (Ala.1989).

In recognition of the enactment of Act No. 89-857 (effective May 17, 1989), amending § 15-10-3, Ala.Code 1975, the rule was written to specifically provide that the provisions of § 15-10-3 would not be superseded by the rule, but rather, should be read in pari materia with the provisions of that statute. See Rule 4.1(a)(1)(iii).

In defining what is “probable cause to believe,” the Court of Criminal Appeals in Knight v. State, 346 So.2d 478, 481 (Ala.Crim.App.1977), stated:

“Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he had reasonable trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Yeager v. State, 281 Ala. 651, 207 So.2d 125 (1967); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”

The Alabama Supreme Court has further stated: “ ‘[A]n officer cannot justify an arrest on the ground that he [had] reasonable cause to believe the person arrested had committed a felony, unless he has information of facts derived from credible sources or from persons reasonably presumed to know them, which, if submitted to the judge or magistrate having jurisdiction, would require the issue of a warrant of arrest.’ ”

Duncan v. State, 278 Ala. 145, 160, 176 So.2d 840, 854 (1965), quoting Berry v. State, 27 Ala.App. 507, 511, 175 So. 407, 409 (1937). This decision is in accord with Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 3 L.Ed.2d 1503 (1958), and Whitley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). See also Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Payton held that “the Fourth Amendment … prohibits police from making warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” See Avant v. State, 405 So.2d 159 (Ala.Crim.App.1981), which upheld a warrantless nonconsensual entry to make a routine felony arrest two hours after the incident, distinguishing Payton.

Rule 4.1(b) is based on Ala.Code 1975, § 15-10-7. Changes have been made in the language of this Code section; however, there is no provision within Rule 4.1(b) comparable to § 15-10-7(d), which provides that a private person may “[i]f he is refused admittance, after notice of his intention, and the person to be arrested has committed a felony, … break open an outer or inner door or window of a dwelling house.”

Rule 4.1(c) is based on § 15-10-6, and, with the exception of a minor wording change (reference to “oral” order rather than “verbal” order), the provisions of Rule 4.1(c) are identical to the statute.