Current through Register Vol. XLI, No. 44, November 1, 2024
Section 149-7-7 - The Arrest Decision7.1. In most circumstances, the responding law enforcement officer shall arrest the accused whenever arrest is authorized. In addition to any other report required, law enforcement officer who does not make an arrest after investigating a complaint of stalking shall submit a written report setting forth the grounds for not arresting.7.2. Arrest is authorized in the following circumstances: 7.2.a. When the law enforcement officer has probable cause to believe that the accused has committed a felony;7.2.b. When the law enforcement officer observes the commission of a felony or a misdemeanor;7.2.c. When the law enforcement officer observes the violation of a valid personal safety order, including the presence of the accused at a location prohibited by the personal safety order; the officer shall arrest the accused provided the accused was served with the order or had actual notice of the order and its contents;7.2.d. When the law enforcement officer observes any violation of a condition of bail, probation or parole, including the presence of the accused at the residence of the victim;7.2.e. When the accused is alleged to have committed stalking or the violation of a valid personal safety order; law enforcement officer has authority to arrest the accused when: 7.2.e.1. The law enforcement officer has observed credible corroborative evidence that the offense has occurred; or,7.2.e.2. The law enforcement officer has received, from the victim or a witness, a verbal or written allegation of facts constituting a violation of a valid personal safety order; or,7.2.e.3. A misdemeanor or felony not included among those specified in this rule has been committed and the law enforcement officer or another person obtains or has previously obtained an arrest warrant; or,7.2.e.4. A capias has been issued, or when a circuit judge has signed an attachment order.7.2.e.5. Notwithstanding the issue of violation of the state law, the crossing or causing the crossing of a state line or territory or tribal boundary to commit stalking is a violation of federal law and should also be referred to federal authorities.7.3. The law enforcement officers shall not consider the following factors in making the arrest decision:7.3.a. The marital status of the parties;7.3.b. The ownership or tenancy rights of either party;7.3.c. Verbal assurances that the stalking will stop;7.3.d. A claim by the accused that the victim provoked or perpetuated the violence;7.3.e. Speculation that the victim or witnesses will not follow through or cooperate with criminal prosecution (whether based on prior incidents involving the same victim, the victim's hesitancy about pursuing prosecution, or any other factor);7.3.f. The disposition of any previous police calls involving the same victim or accused;7.3.g. Speculation that the arrest may not lead to a conviction;7.3.h. The existence or nonexistence of a current personal safety order (except insofar as the violation of the order requires arrest);7.3.i. Concern about reprisals against the victim;7.3.j. Adverse financial consequences that might result from the arrest;7.3.k. That the incident occurred in a private place;7.3.l. The racial, cultural, social, political, or professional position or sexual orientation of either the victim or the accused; or,7.3.m. The criminal history of the victim7.4. It is the law enforcement officer's or prosecuting attorney's responsibility to decide whether an arrest should be made unless the law enforcement officer is required to make an arrest for violation of a valid personal safety order or a violation of the terms and conditions of bail, probation or parole.7.5. Firearms 7.5.a. The law enforcement officer shall seize all firearms, ammunition, and any other weapons that are alleged to have been involved or threatened to be used in the commission of stalking.7.5.b. The law enforcement officer may secure a weapon that is in plain view of the officer, or is discovered pursuant to a consensual search, or is necessary for the protection of the officer or other persons.7.5.c. The law enforcement officer shall seize all firearms and ammunition possessed in violation of a personal safety order prohibiting possession of a firearm.