Can a Connecticut state marshal serving a civil capias warrant walk into someone's home without a search warrant or consent?

Plain-English summary

The chair of Connecticut's State Marshal Commission asked the AG for Fourth Amendment guidance on serving civil capias warrants, the civil arrest orders that compel a non-appearing witness or family-support obligor to come to court. The AG addressed three questions:

1. Home entry to serve the warrant. Marshals should not enter a home without consent. The U.S. Supreme Court has drawn a "firm line at the entrance to the house." A capias warrant satisfies the Fourth Amendment for home entry only if it carries an explicit probable-cause finding by a neutral judge on the face of the warrant, which civil capias warrants rarely do. The federal court in Milner v. Duncklee, 460 F. Supp. 2d 360 (D. Conn. 2006), articulated the four-element test (probable cause, sworn-testimony basis, particularity, neutral and detached magistrate). Most Connecticut civil capias warrants do not display that level of detail. The AG advised marshals not to perform the Milner analysis themselves and instead refrain from in-home seizure absent consent.

2. Questioning bystanders. A marshal can voluntarily approach and question anyone in a public place about the whereabouts of the capias subject. The subject's right to refuse to answer is absolute. A marshal cannot detain a person who declines to speak unless reasonable suspicion of a crime arises (which is rarely going to be the case for someone living near or visiting the subject).

3. Detaining bystanders pending police arrival. State marshals are statutorily "peace officers" while exercising their authority (Conn. Gen. Stat. § 53a-3(9)) and can in theory arrest under § 54-1f for an offense observed in their jurisdiction. But constitutional reasonableness for detention turns on the totality of circumstances and is dependent on rapidly evolving criminal procedure. The AG, as chief civil legal officer, declined to give specific guidance and urged the Commission to coordinate with prosecutors and criminal-law authorities, and to provide marshals with rigorous, periodic Fourth Amendment training. He also flagged that inadequate training or supervision could expose the Commission and its members to civil liability.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's a "civil capias" anyway?
A: A civil arrest order issued by a court (or a family support magistrate) to compel the appearance of a person who has ignored a summons, subpoena, or order. Common contexts: child-support enforcement, contempt for failure to appear at a deposition, failure to appear as a witness in a civil case.

Q: Are civil capias warrants the same as criminal arrest warrants?
A: No. A criminal arrest warrant requires a probable-cause finding by a neutral magistrate based on sworn evidence. A civil capias is often issued more or less administratively after a missed court date, frequently without an explicit probable-cause recital. Milner v. Duncklee held that the lower paperwork standard does not satisfy the Fourth Amendment for entering a home.

Q: Can a marshal arrest the subject in a public place with just a civil capias?
A: Yes. Milner and the AG's opinion both confirm that a marshal can lawfully arrest a capias subject in public, even with a capias that would not support a home entry. The home-entry rule is the strictest Fourth Amendment context.

Q: Can a marshal enter the home of a third party (the subject's friend, parent)?
A: No, regardless of consent at the door. Steagald v. United States, 451 U.S. 204 (1981), requires a separate search warrant to enter the home of a third party even with a valid arrest warrant for the subject.

Q: What about consent at the door?
A: A marshal may knock on the door, identify himself, and ask the occupant for consent to enter. If consent is genuine and voluntary, entry is constitutional. The AG cautioned that consent must be unambiguous; ambiguity should default to no entry.

Q: What if the marshal sees something illegal during the visit?
A: The marshal may be a peace officer for purposes of an immediate arrest if a crime is being committed in his presence, but the totality-of-circumstances Fourth Amendment analysis controls. The AG urged the Commission to develop policies with the involvement of prosecutorial authorities, not in isolation.

Background and statutory framework

State marshals in Connecticut are statutorily authorized to serve civil process under Conn. Gen. Stat. § 6-32, succeeding the abolished office of county sheriff. They serve civil capias warrants under § 52-143(e) (general witness contempt), § 46b-231(m)(1) (family support magistrate orders), § 54-148e(e) (deposition subpoena enforcement), and several less-common provisions for legislative proceedings, juvenile cases, probate, bar admission, and foreign-jurisdiction subpoenas.

The Fourth Amendment overlay applies regardless of source. Payton v. New York, 445 U.S. 573 (1980), prohibits warrantless seizures inside a home except with consent or exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740 (1984), reinforces that strict-warrant standard for minor offenses. Milner v. Duncklee read those holdings to require a facially valid probable-cause finding on a civil capias before it can authorize home entry. The Connecticut Constitution's Article First, sections 7 and 9, can provide even more protection: State v. Jenkins, 298 Conn. 209 (2010), confirms greater state-constitutional rights in particular contexts.

For non-subject bystander encounters, Terry v. Ohio, 392 U.S. 1 (1968), and Florida v. Royer, 460 U.S. 491 (1983), set the federal floor: voluntary questioning is allowed; detention requires reasonable suspicion; arrest requires probable cause.

Citations and references

Federal cases:

• Payton v. New York, 445 U.S. 573 (1980), warrantless home arrests presumptively unreasonable
• Welsh v. Wisconsin, 466 U.S. 740 (1984), minor offenses and home arrests
• Kyllo v. United States, 533 U.S. 27 (2001), strict home-entry rule
• Terry v. Ohio, 392 U.S. 1 (1968), stop-and-frisk reasonable suspicion
• Florida v. Royer, 460 U.S. 491 (1983), consensual encounters and detention thresholds
• Steagald v. United States, 451 U.S. 204 (1981), separate warrant for third-party home
• Milner v. Duncklee, 460 F. Supp. 2d 360 (D. Conn. 2006), civil capias warrants and the Fourth Amendment

Connecticut cases:

• State v. Jenkins, 298 Conn. 209 (2010), Conn. Const. Art. I §§ 7, 9 protections
• State v. Burroughs, 288 Conn. 836 (2008), consensual encounters
• State v. Ostroski, 186 Conn. 287 (1982), seizure when reasonable person not free to leave

Statutes:

• Conn. Gen. Stat. § 6-32
• Conn. Gen. Stat. § 52-143
• Conn. Gen. Stat. § 46b-231

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2012/martinmarshallopinion032212-pdf.pdf?rev=a7fac6c20f3a4f55a0b1db4d84a20438

Original opinion text

GEORGE C. JEPSEN
ATTORNEY GENERAL

55 Elm Sireet
BO. Box 120
Hartford, CT 06141-0120

Office of The Attorney General
State of Connecticut

March 22, 2012

Peter J. Martin, Esq.,
Chairperson

State Marshal Commission

165 Capitol Avenue, Room 483
Hartford, CT 06106

Dear Atty. Martin:

You have asked for this Office’s opinion regarding the application of the
Fourth Amendment to the United States Constitution’ to the work of State
Marshals serving civil capias warrants. Specifically, your letter to this office, as
amplified by discussions between your office and mine, essentially poses three
questions:

1. Whether a state marshal serving a civil capias warrant may enter the
   home of the subject of the warrant without consent or exigent
   circumstances to serve the process on that person;

2. Whether and to what extent individuals’ Fourth Amendment rights are
   implicated when a State Marshal wishes to question or seek
   information from those individuals who are not themselves the subject
   of a civil capias warrant and who are, presumably, not encountered
   within the home of the subject of a capias warrant;

3. Whether and under what circumstances a State Marshal is lawfully
   permitted to detain other individuals on the premises for the purposes

' The Fourth Amendment to the United States Constitution provides: “The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized,” (Emphasis added).

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 2

of further investigation, or to await the arrival of the police, while in
the process of serving a civil capias warrant.

Your questions are by their nature extremely broad and constitutional law
does not often lend itself to bright lines. Rather, most constitutional jurisprudence
represents a balance between the government’s interests and an individual’s
rights.

Compounding the difficulty we face in answering such broad questions is
the civil nature of both of our agencies. Your questions involve the service of
civil capias warrants, which as we have previously concluded are a strictly civil
process. Op.Atty.Gen. No. 07-002 (Feb. 2, 2007); Op.Atty.Gen. No. 00-010
(Mar. 7, 2000). Likewise, I am the state’s chief civil legal officer; Conn. Gen.
Stat. § 3-125; with very limited criminal jurisdiction. To a certain extent,
however, your questions could very well cross over the line and involve issues of
criminal law, and in those circumstances criminal prosecutorial officers might not
agree with advice this office might impart. The reasonableness of any particular
search or seizure depends substantially on the facts of a given case as viewed in
the light of the constantly evolving law of criminal procedure. Thus, our advice
to you on issues concerning search and seizure law as they relate to situations in
which a marshal departs from merely serving civil process is that your office
should consult criminal authorities in the same way as other police and peace
officers might.

Bearing these important caveats in mind, we will try to offer you guidance
on the questions you pose, which we address individually below after a general
review of a State Marshal’s authority to serve capias warrants.

MARSHAL’S AUTHORITY TO SERVE CIVIL CAPIAS WARRANTS

The general statutory authority to serve a civil capias warrant” is found in
Conn. Gen. Stat. § 52-143 (e) which provides, in relevant part, as follows:

2 Conn. Gen. Stat. §§ 54-Ih, 54-2a, 54-2e, 54-65a and 54-66 also provide for the issuance of
capias warrants under certain circumstances in criminal cases. This opinion does not address the
circumstances under which a State Marshal may exercise authority to execute such capias
warrants, as your inquiry focuses solely on civil capias warrants.

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 3

If any person summoned by the State, or by the
Attorney General or an assistant Attorney General,
or by any public defender or assistant public
defender acting in his official capacity, by a
subpoena containing the statement as provided in
subsection (d), or if any other person upon whom a
subpoena is served to appear and testify in a cause
pending before any court and to whom one day's
attendance and fees for traveling to court have been
tendered, fails to appear and testify, without
reasonable excuse, he shall be fined not more than
twenty-five dollars and pay all damages to the party
aggrieved; and the court or judge... . may issue a
capias directed to some proper officer to arrest the
witness and bring him before the court to testify.

Additionally, Conn. Gen. Stat § 46b-231(m)(1) authorizes the issuance and
service of a civil capias warrant in family support matters under the circumstances
set forth in the statute, the relevant portion of which follows:

A family support magistrate in IV-D support cases
may compel the attendance of witnesses or the
obligor under a summons issued pursuant to
sections 17b-745 [enforcement of parental support
orders], 46b-172 [enforceability of parental support
agreements] and 46b-215 [enforcement of relatives’
support obligations], a subpoena issued pursuant to
section 52-143, or a citation for failure to obey an
order of a family support magistrate or a judge of
the Superior Court. If a person is served with any
such summons, subpoena or citation issued by a
family support magistrate or the assistant clerk of
the Family Support Magistrate Division and fails to
appear, a family support magistrate may issue a
capias mittimus directed to a proper officer to arrest
the obligor or the witness and bring him before a
family support magistrate.

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 4

See also, Op.Atty.Gen. No. 07-002 (Feb. 2, 2007), 2007 WL 852970 (State
marshals are authorized to serve capias warrants).

Further, Conn. Gen. Stat. § 54-148e(e) authorizes the issuance and service
of a civil capias warrant to enforce deposition subpoenas during the discovery
phase of civil actions under the following circumstances:

If any person to whom a lawful subpoena is issued
under any provision of this section fails without just
excuse to comply with any of its terms, the court
before which the cause is pending, or any judge
thereof, may issue a capias and cause him to be
brought before such court or judge, as the case may
be, and, if the person subpoenaed refuses to comply
with said subpoena, such court or judge may
commit him to jail until he signifies his willingness
to comply with it.

Finally, several other less commonly used statutes empower courts and
administrative tribunals to issue capias warrants for specific purposes apart from
those set forth in detail above. See Conn. Gen. Stat. § 2-46 (authorizing issuance
of a capias to compel testimony of witnesses in certain legislative proceedings);
Conn. Gen. Stat. § 46b-133 (authorizing issuance of capias warrant to ensure
appearance in court of delinquent child or custodial parent); Conn. Gen. Stat. §
51-81 (authorizing State Bar Examining Committee to secure attendance and
testimony of witnesses by capias in proceedings examining fitness of applicants
for admission to the bar); Conn, Gen. Stat. § 52-155 (authorizing issuance of
capias warrants for enforcement of subpoenas requiring witnesses to testify in
foreign proceedings in this state); Conn. Gen. Stat. § 54a-129 (authorizing courts
of probate to secure attendance and testimony of witnesses by capias).

Conn. Gen. Stat. § 6-32 empowers State Marshals to “receive each process
directed to such marshal when tendered, execute it promptly and make true return
thereof.” Accordingly, State Marshals have the authority to accept and serve civil
capias warrants when lawfully directed to do so. Regardless of the source of their
authority to serve a civil capias warrant, however, a State Marshal must do so ina

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 5

manner that comports with constitutional requirements.* Milner v. Duncklee, 460
F.Supp.2d 360, 366 (D.Conn. 2006). We now turn to your specific questions.

1. May a State Marshal charged with executing a civil capias
   warrant enter the home of a subject, absent consent or exigent
   circumstances, to serve such process on the named individual?

Our answer is that absent clear consent to enter a home, marshals should
be directed not to do so.

The “arrest” of an individual by a State Marshal upon the authority of a
civil capias warrant will clearly be considered a “seizure” within the meaning of
the Fourth Amendment to the U.S. Constitution. See Milner v. Dunklee, supra, at
366-67 (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L. Ed. 2d 889
(1968)); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.
Ed. 2d 497 (1980) Michigan v. Summers, 452 U.S. 692, 696-97, 101 S.Ct. 2587,
69 L.Ed.2d 340 (1981). Interpreting the Fourth Amendment prohibition on
unreasonable searches and seizures, the United States Supreme Court has drawn a
firm line at the entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant or consent. Payton v.
New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) ("It is a
'basic principle of Fourth Amendment law' that searches and seizures inside a
home without a warrant are presumptively unreasonable.").

Subsequent holdings have reiterated this principle and “made clear that
any physical invasion of the structure of the home, by even a fraction of an inch,
is too much to be tolerated." Loria y. Gorman, 306 F.3d 1271, 1284 (2d Cir,
2002) (quoting Kyllo v. United States, 533 U.S. 27, 37, 121 S.Ct. 2038, 150 L. Ed.
2d 94 (2001)). A pre-seizure judicial determination of probable cause is required
for an arrest in the home because of the heightened privacy interests in the home.
See Payton, supra, at 584-856. Thus, courts have developed a relatively bright-
line rule requiring a facially valid warrant to justify the seizure of a person in the
home. Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 80 L. Ed. 2d 732
(1984). Accordingly, it is well-settled that “an arrest of an individual in his own

3 Courts have held that the Fourth Amendment applies to seizures made in the civil context as well as in the
criminal context, Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) (citing Soldal v. Cook County, Illinois, 506
U.S. 56, 67 n.11, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)).

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 6

home is reasonable only if it is supported by a valid arrest warrant, exigent
circumstances, or consent.” Milner vy. Dunklee, supra, at 367; see also Payton,
supra, at 586-87, 590; Welsh, supra, at 749-55.

A good deal of authority supports the proposition that an intrusion into a
home to seize an individual to effect civil process has less justification than an
intrusion into a home to effect criminal process. In fact, the court in Milner y.
Dunklee, supra, at 368, discussed whether the Fourth Amendment imposed a
wholesale bar on warrantless home arrests for minor offenses (which would
include civil offenses), but ultimately declined to decide the case on this point.
Rather, the court in Milner focused on whether the capias warrant that supported
the in-home seizure in that case met well-established Fourth Amendment
requirements. After an exhaustive review of the applicable requirements, it
determined that it did not.

Thus, we cannot counsel you that any sort of “exigency” might exist that
would penmit a marshal to enter a home arrest an individual pursuant to a civil
capias.’ See Welsh, supra, at 750 n.1, 751 (suggesting, without deciding, an
absolute ban on warrantless home arrests for certain minor offenses). Rather,
absent consent, the question of a marshal’s authority to enter a subject’s home to
affect an arrest comes down to whether the civil capias warrant is the functional
equivalent of a Fourth Amendment “warrant.” Thus, we turn to whether a civil
capias warrant is in fact the functional equivalent of a criminal arrest warrant.

The court in Milner reasoned that a document purporting to be a warrant —
whatever its title — must comply with the strictures of the Fourth Amendment to

“1 can say it no more eloquently than Justice Jackson who, in writing about whether exigency
could justify a warrantless search of a tenement house where an officer suspected illegal gambling,
observed: “Whether there is reasonable necessity for a search without waiting to obtain a warrant
certainly depends somewhat upon the gravity of the offense thought to be in progress as well as
the hazards of the method of attempting to reach it... . It is to me a shocking proposition that
private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of
any suspicious police officer engaged in following up offenses that involve no violence or threats
of it... . While the enterprise of parting fools from their money by the ‘numbers’ lottery is one
that ought to be suppressed, I do not think its suppression is more important to society than the
security of the people against unreasonable searches and seizures. When an officer undertakes to
act as his own magistrate, he ought to be in a position to justify it by pointing to some real
immediate and serious consequences if he postponed action to get a warrant.” McDonald v.
United States, 335 U.S. 451, 459-60 (1948) (Jackson, J., concurring).

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 7

support an in-home seizure. A warrant that complies with the Fourth
Amendment has four essential attributes. It must: (1) be supported by probable
cause; (2) be issued upon a probable cause determination based on oath,
affirmation, or sworn testimony setting forth the underlying facts and
circumstances giving rise to probable cause; (3) describe the persons or things to
be seized with particularity; and (4) be issued by a neutral and detached
magistrate. Milner, supra, at 369. Only a warrant that meets each of the Fourth
Amendment requirements will suffice to authorize the seizure of an individual in
his home.

The very purpose of the warrant requirement -- especially as it relates to
entering a home -- is to take the probable cause decision away from law
enforcement officials and put that decision in the hands of a neutral and detached
magistrate. Welsh, supra, at 749 n.10. Although it is sufficient for a law
enforcement official to make a probable cause determination when a person is
arrested in public, the Supreme Court has determined that the sanctity of the home

5 See also United States v. Kone, 591 F. Supp. 2d 593, 609 (S.D.N.Y. 2008)(explaining that, as in
Milner, nomenclature is not dispositive and an Order obtained from a federal district judge
authorizing the search of the home of an individual on supervised release was insufficient to
satisfy the requirements of the Fourth Amendment because it lacked a probable cause
determination); Larrew v. Barnes, 2006 WL 2354954, 3 (N.D. Tex. 2006) (a civil capias warrant
must meet the requirements of Fourth Amendment, which the particular capias did because it
stated “name of the state... , order[ed] any Texas peace officer to arrest Larrew for failure to
appear at a hearing, display[ed] a clerk’s certificate, identifie[d] two signatories (including the
clerk of court), state[d] that it is certified upon a showing of personal knowledge that the
defendant had failed to appear at a hearing, and properly describe[d] the court of issuance and
place of return”); State v. Ruden, 245 Kan. 95, 774 P.2d 972 (Kan. 1989)(bench warrant issued for
failure to appear in a civil case does not allow law enforcement officers, absent consent or exigent
circumstances, to enter and search the named individual’s home when they believe that the
individual is present because the civil warrant did not meet the requirements of the Fourth
Amendment); State v. Vaught, 256 P.3d 897 (Kan. App. 2011)(same); Jordan v. State, 1998 WL
70455 5 (Tex. App. 1998) (“[A] capias did not have to be signed by a magistrate but may be
signed by a clerk at the direction of the court after a determination of probable cause by a
detached, neutral magistrate); State v. Thompson, 151 Wash. 2d 793, 801-02, 92 P.3d 228 (Wash.
2004) (“In the present case, there was a bench warrant for Thompson’s arrest for failure to appear
at a show cause hearing regarding his failure to pay child support. This warrant was issued under
RCW 26.18.050, which provides that a civil bench warrant may be issued in such circumstances, .
. . In light of our holding today, the deputies erred in forcibly opening the trailer door
when executing the civil warrant. The ‘knock and wait’ statute does not encompass the execution
of civil arrest warrants.”).

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 8

necessitates heightened protections, and specifically requires that a neutral and
detached magistrate make the probable cause determination to justify such an
intrusion. Thus, when a person is arrested in his home, it is not enough that there
is probable cause to arrest -- even undisputed probable cause to arrest. Rather, a
neutral and detached magistrate must actually make a finding that probable cause
exists. Milner, supra, at 371.

The Court in Milner explained that for a civil capias warrant to meet
Fourth Amendment requirements, the face of the warrant itself must manifest an
explicit finding of probable cause establishing that the issuing judicial authority
either (a) personally witnessed the events recited in the warrant or (b) personally
reviewed the official records of the court, thus ensuring that the validity of the
data in the court records was adequately scrutinized. Milner, supra, at 373-74.
The rationale and holding of Milner make clear that this is a high threshold.
Although we do not have a particular capias warrant to review, the court in Milner
looked for evidence on the face of the warrant that the issuing judge or magistrate
had personal knowledge of the individual’s “failure to appear and the events
leading up to it,” either by personally witnessing the events or by personally
reviewing the court records, and thereby personally made an “independent finding
of probable cause.” Id, at 373-74.

In our experience — as in Milner — capias warrants are not often that
explicit on their face. Nor do we believe it is prudent to expect a marshal to
perform the sort of analysis the federal judge undertook in Milner to determine
the Fourth Amendment sufficiency of the capias warrant. Therefore, bearing in
mind the caution necessitated by a review of the authorities discussed above, we
believe the better practice is for State Marshals not to undertake to determine the
Fourth Amendment sufficiency of the warrant and not to consider entry into a
home without consent.°

This is not to say that a civil capias that does not, on its face, meet Fourth
Amendment requirements is invalid. The court in Milner made clear that, armed

® Nor should the marshal under any circumstances — even with a valid warrant that meets Fourth
Amendment standards — seek to enter a third party’s home to serve the warrant. Steagald v.
United States, 451 U.S. 204, 101 S.Ct., 68 L. Ed. 2d 38 (1981). See also United States v. Hill,
2005 WL 354002, *8 (N.D.W. Va. 2005) (“permitting ‘the police, acting alone and in the absence
of exigent circumstances’ to decide when there is sufficient justification for search the home of a
third party for the subject of an arrest warrant — would create a significant potential for abuse.’”).

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 9

with a civil capias issued by a court of competent jurisdiction, but that fell short of
the aforementioned Fourth Amendment requirements, a State Marshal could
lawfully seize the subject of the capias in a public place. The Milner court further
clarified that, armed with such a capias warrant, a State Marshal could knock on a
subject’s door and obtain the subject’s valid consent to execute the capias.
However, the Milner court cautioned that, what a State Marshal could not do,
even with a capias in hand, is enter a subject’s home without consent to seize him
unless the capias satisfies Fourth Amendment requirements as articulated above.
Id, at 375.

It warrants emphasis that State Marshals serving capias warrants under
any circumstances may encounter difficult circumstances, including hostile and
recalcitrant subjects. Entering a subject’s home, even with consent, is obviously
one such circumstance, and one in which the conditions a marshal will face are
often unknown. I am certain that the Commission appreciates these safety
concerns better than I. I therefore urge the Commission to continue providing
State Marshals with training for these contingencies and to give close
consideration to enlisting the assistance of local law enforcement in situations in
which entry into a home could present safety risks.

2. May State Marshals question or seek information from
   individuals who are not themselves the subject of a civil capias
   warrant and who are encountered outside the home of the
   subject of a capias warrant?

To the extent your question concerns whether State Marshals may detain,
for investigative purposes short of an arrest, individuals who are not subject to the
capias warrant but who are encountered on the premises of the subject named in a
capias warrant, you present a somewhat difficult question. We assume for
purposes of addressing this question that the “investigative purposes” the marshal
would be engaged in would involve determining the whereabouts of the subject of
the capias warrant.’

“There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets.” Terry v. Ohio, 392 U.S. 1, 34, 88

’ To the extent that the “investigative purposes” you refer to concern other “law enforcement”
duties, see the answer to question number 3 below.

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 10

S.Ct. 1868, 20 L. Ed. 2d 889 (1968) (White J., concurring). For example, in
Florida y. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L. Ed, 2d 229 (1983), the
Supreme Court, referring to a long line of previous opinions, clarified that police
officers do not violate the Fourth Amendment “by merely approaching an
individual on the street or in another public place, by asking him if he is willing to
answer some questions, by putting questions to him if the person is willing to
listen, or by offering in evidence in a criminal prosecution his voluntary answers
to such questions.” Jd. at 497 (plurality) (citations omitted), “Nor would the fact
that the officer identifies himself as a police officer, without more, convert an
otherwise consensual encounter into a seizure requiring some level of objective
justification.” Id; see also State v. Burroughs, 288 Conn. 836, 853-54 (2008).

“The person approached, however, need not answer any question put to
him; indeed, he may decline to listen to the questions at all and may go on his
way. He may not be detained even momentarily without reasonable, objective
grounds for doing so; and his refusal to listen or answer does not, without more,
furnish those grounds.” Royer, supra, at 497 (citations omitted). Thus, what may
begin as a consensual encounter becomes a Fourth Amendment “seizure” if, on a
basis of a show of authority by the officer, a reasonable person in the individual’s
position would have believed that he was not free to leave. See, e.g., State v.
Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103
S.Ct. 173, 74 L. Ed. 2d 142 (1982). Moreover, even a limited detention must be
based on a reasonable suspicion that a crime has occurred, is occurring or is about
to occur. Terry, supra, at 21-22. Obviously in the situation of attempting to serve
a civil capias and seeking the whereabouts of the subject of that capias, such a
suspicion would be lacking.

Accordingly, it is our opinion that a State Marshal may freely encounter
citizens in public places outside the home of the subject of a capias warrant, and
seek information from such individuals on a voluntary basis about the
whereabouts of the subject of the capias. In very limited circumstances, a State
Marshal engaged in the service of a capias warrant may also, while properly in the
home of the subject of the capias, question other persons present in the home on a
consensual basis. “If there is no detention -- no seizure within the meaning of the
Fourth Amendment -- then no constitutional rights have been infringed.” Royer,
supra, at 498. However, the marshal may not detain individuals if they refuse to
answer questions; nor may the marshal indicate in any way that the individuals
are not free to leave.

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 11

3. May a State Marshal lawfully detain other individuals on the
   premises for the purposes of further investigation, or to await the
   arrival of the police, while in the process of serving a civil capias
   warrant?

Your final question appears to contemplate situations in which State
Marshals, in the course of their duties, encounter what they believe to be criminal
activity. State Marshals are defined as “peace officers” “while exercising
authority granted under any provision of the general statutes.” Conn. Gen. Stat. §
53a-3(9). Thus, they are imbued with apparent authority to “arrest, without
previous complaint and warrant, any person for any offense in their jurisdiction,
when the person is taken or apprehended in the act or on the speedy information
of others,” Conn. Gen. Stat. § 54-1f.

It is beyond the scope of the purposes of this opinion for us to advise you
whether it ought to be the policy of the State Marshal Commission to authorize
State Marshals, in light of their training and experience, to make arrests when
they believe they have witnessed criminal activity. In this regard, I encourage
you to seek and to heed closely the counsel of criminal, prosecutorial authorities
as well as other law enforcement officials.

Neither are we well-situated to advise you with any particularity whether
the actions of State Marshals in this context will result in valid arrests or
investigatory stops. As I mentioned at the beginning of this opinion, my role as
the chief civil legal officer of the State does not afford me or my office with this
expertise, nor would my advice be controlling. I can offer only the following
observations.

First, Florida v. Royer clarified that, in certain limited circumstances, a
temporary detention based upon reasonable and articulable suspicion that an
individual has committed or is about to commit a crime may be constitutionally
justified. Jd. at 498. While the Supreme Court in Florida v. Royer readily
acknowledged the constitutional validity of certain investigative detentions based
upon mere reasonable articulable suspicion, it nonetheless recognized that
“fdjetentions may be ‘investigative’ yet violative of the Fourth Amendment
absent probable cause.” Jd. at 499. Of course, the standard of probable cause is
stricter than mere reasonable suspicion and, as a result, more difficult to achieve.

However, such constitutional questions are heavily dependent upon the
individual facts and circumstances of each incident, including the underlying law

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 12

enforcement justification for the questioning or the detention, the location of the
incident, the length of the encounter, the degree of coercion involved (whether
actual or perceived), and numerous other factors that cannot be adequately
addressed within the scope of this opinion. Thus, regardless of whether an
investigative detention is justified on the basis of a reasonable and articulable
suspicion, or upon the basis of probable cause, the decision regarding whether a
detention has in fact occurred, and if so whether such detention is constitutionally
justified, will be based upon the totality of the circumstances known to the State
Marshal at the inception of the detention, or developed during the course of the
detention. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.
2d 347 (1996) (“[T]he touchstone of the Fourth Amendment is reasonableness.
Reasonableness, in turn, is measured in objective terms by examining the totality
of the circumstances.”).

Finally, it is also important to note that Article First, sections 7 and 9 of
the Connecticut Constitution® comprise the state constitutional analogs to the
Fourth Amendment. The Connecticut Supreme Court has on several occasions
determined that, in certain instances, these state constitutional provisions provide
the citizens of Connecticut with more protection than does the Fourth
Amendment. See, e.g., State v. Jenkins, 298 Conn. 209, 261 (2010).
Accordingly, the constitutional reasonableness of a particular set of facts and
circumstances must be considered from this standpoint as well and further
warrants consultation with prosecutors and other law enforcement agencies.

Clearly, the law surrounding the temporary detention or arrest of citizens
in a criminal context is complex, rapidly evolving, and of the utmost
constitutional importance. As a result, we urge the State Marshal Commission to
carefully consider whether and, if so, under what circumstances, it should
authorize State Marshals to become engaged in such actions. Where such
activities are to be authorized, it is likewise of critical constitutional importance
that the State Marshals so authorized receive adequate initial training and regular,

® Article First, § 7,of the Connecticut Constitution provides that “[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches or seizures; and no
warrant to search any place, or to seize any person or things, shall issue without describing them
as nearly as may be, nor without probable cause supported by oath or affirmation.”

Article First, § 9, of the Connecticut Constitution provides that “[n]Jo person shall be arrested,
detained or punished, except in cases clearly warranted by law.

Peter J. Martin, Esq. Chairperson
State Marshals Commission
Page 13

periodic updated training regarding the laws of arrest, search and seizure so as to
ensure that they are equipped to act within the bounds of the law. It should also
be noted that a failure to adequately train State Marshals in the laws of arrest,
search and seizure related to their duties in serving capias warrants, or to develop
and enforce appropriate policies and procedures regarding the execution of such
duties, or to otherwise conscientiously execute their supervisory responsibilities
with regard to such matters, may expose the State Marshal Commission, and/or its
individual members, to substantial civil liability.

I encourage you to seek out the advice and the training resources of
prosecutorial and other law enforcement authorities if you are at all considering
policies regarding the enforcement of criminal laws by State Marshals.

I trust that this answers your inquiries. f

‘GEORGE JEPSEN
ATTORNEY GENERAL

GJ/srs