Constitutional Issues Field Guide Page 70 of 103
Original: 01-15-2010 Effective: 01-12-2022 Amends: 11-04-2021
App. 137, 145 (1996). An arrest not supported by probable cause is not made lawful by an officer’s
subjective belief that an offense has been committed. Golden v. Commonwealth, 30 Va. App. 618, 625
(1999). “The officers’ mistaken belief that appellant was the person named in the capias did not make
the capias an instrument upon which the police could lawfully arrest appellant, even if that mistake was
made in good faith. The police officers became aggressors when they attempted to arrest a person not
named in the capias upon which they relied for the arrest, and they were at fault in the confrontation.
Appellant was not required to surrender to the officers based on the capias issued for another person's
arrest. Because the arrest was unlawful, appellant had the right to resist upon self-defense principles.
The Commonwealth cannot expunge that right even by showing the officers acted in ‘good faith.’”
Brown v. Commonwealth, 27 Va. App. 111, 117-118 (1998) (internal citations omitted).
However, the courts do allow some room for error on the part of the police. Even the arrest of the wrong
person, so long as the arrest was based on probable cause, can possibly be saved by the “good faith” of
the officers. See Brinegar v. United States, 338 U.S. 160, 176 (1949), “Because many situations which
confront officers in the course of executing their duties are more or less ambiguous, room must be
allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on
facts leading sensibly to their conclusions of probability.” See also Hill v. California, 401 U.S. 797,
803-804 (1971) where the police arrested the wrong individual and conducted a search incident to
arrest: “The upshot was that the officers in good faith believed Miller was Hill and arrested him. They
were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the
arrest or the subsequent search.” But, “Here there was probable cause to arrest Hill and the police
arrested Miller in Hill's apartment, reasonably believing him to be Hill. In these circumstances the
police were entitled to do what the law would have allowed them to do if Miller had in fact been Hill,
that is, to search incident to arrest and to seize evidence of the crime the police had probable cause to
believe Hill had committed.”
Less intrusive seizures are not significantly different. “An officer's detention of an individual based on a
mistaken view that he or she has witnessed a violation of law is not objectively reasonable, however,
and, therefore, is unlawful.” See United States v. Lopez-Valdez, 178 F.3d 282, 288-89 (5
th
Cir. 1999)
(holding that an officer's detention of the accused for what the officer mistakenly believed was a
violation of the Code was unreasonable). Likewise, “An officer's good intentions cannot convert an
objectively unreasonable view of the law into a lawful detention. “‘[G]ood faith on the part of the
arresting officer is not enough. . . .’ If subjective good faith alone were the test, the protections of the
Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers,
and effects, only in the discretion of the police.’” Terry, 392 U.S. at 22 (quoting Beck v. Ohio, 379 U.S.
89, 97 (1964)) (internal quotations and citations omitted). “[I]f officers are allowed to stop [individuals]
based upon their subjective belief that . . . laws have been violated even where no such violation has, in
fact, occurred, the potential for abuse of . . . infractions as pretext for effecting [detentions] seems
boundless and the costs to privacy rights excessive.” Lopez-Valdez, 178 F.3d at 289. Hamlin v.
Commonwealth, 33 Va. App. 494, 505, 534 S.E.2d 363, (2000).
Prosecution
Officers bear a significant responsibility when it comes to the prosecution of their cases. Specifically,
“good faith” will not be a defense for failing to turn over favorable evidence. “The suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Muhammad v. Commonwealth, 269 Va. 451, 461, 619 S.E.2d 16, (2005) quoting Brady. And later,
“Whether evidence is material and exculpatory and, therefore, subject to disclosure under Brady v.
Maryland, 373 U.S. 83, 87 (1963), is a decision left to the prosecution. Inherent in making this decision