What does New York AG Opinion 2007-08 say about Ethics code may prohibit county officer from holding a political party office;Ethics code may prohibit county officer from holding a political party office?

Subject

Ethics code may prohibit county officer from holding a political party office;Ethics code may prohibit county officer from holding a political party office

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/i_2007-8_pw_1.pdf

Original opinion text

Criminal Procedure Law §§ 1.20, 1.20(34), 2.10, 2.10(21)(a),
2.10(70), 2.20, 2.20(1)(a), 2.20(1)(b), 70.10(2), 120.20(2),
120.50, 120.60, 120.55, 140.10, 140.25, 140.25(1), 140.25(1)(a),
140.25(1)(b), 140.25(2), 140.25(3), 140.25(3)(a), 140.25(3)(b),
140.25(4), 140.25(5)(b); Penal Law §§ 10.00(6), 35.30, 35.30(1),
35.30(4), 350
A peace officer who becomes aware of an outstanding arrest
warrant through the performance of his special duties may
physically detain the subject of the warrant pending arrival of a
police officer to make the arrest if the subject of the warrant
tries to leave. A peace officer may make a warrantless arrest
based upon knowledge of an outstanding arrest warrant for a
qualifying offense when the peace officer learns of the
outstanding warrant through the performance of his special
duties.
December 17, 2007
Bernetta A. Bourcy
County Attorney
Yates County
415 Liberty Street
Suite 204
Penn Yan, New York 14527

Informal Opinion
No. 2007-8

Dear Ms. Bourcy:
You have requested an opinion regarding the authority of
certain peace officers to (1) physically restrain a person
against whom the peace officer knows an arrest warrant is
outstanding until a police officer arrives to make the arrest,
and (2) make a warrantless arrest of such a person. As explained
more fully below, although not free from doubt, we are of the
opinion that when a peace officer becomes aware of an outstanding
warrant through the performance of his special duties, he may
physically detain such person pending arrival of a police
officer, and that in some, but not all, instances, a peace
officer may properly make an arrest based on knowledge of the
outstanding warrant.
I.

FACTUAL BACKGROUND

You have explained that Yates County employs, through the
Sheriff’s Office, court security officers and marine patrol
officers. You have advised that these employees are peace
officers under the Criminal Procedure Law. See id. § 2.10(21)(a)
(uniformed court officers of the unified court system) and (70)
(employees appointed by the sheriff of Yates County, pursuant to
their special duties serving as uniformed marine patrol

2
officers). In the past, the County has instructed these peace
officers to contact law enforcement headquarters in the event
they observe a person against whom they know an arrest warrant
has been issued; a police officer will be sent to make the
arrest. The person against whom the warrant is outstanding may,
however, try to leave the courthouse or the waterside. Thus you
ask whether the peace officer may take either of the suggested
actions to prevent the person from leaving. We assume that the
peace officer would have no independent information other than
the existence of the arrest warrant that would allow him to
physically detain or arrest the person; thus, the detention would
be solely based on knowledge of the outstanding warrant.
II.

STATUTORY BACKGROUND

Peace officers and police officers are statutorily distinct
groups of law enforcement officers. Compare Criminal Procedure
Law § 2.10 (officers defined as peace officers) with id. §
1.20(34) (officers defined as police officers). Peace officers
are responsible for law enforcement in a particular area – they
are “official[s] who perform a law enforcement function for an
agency that does not have policing as its central mission.”
Peter Preiser, Practice Commentaries to Criminal Procedure Law §
2.10, 11A McKinney’s Cons. Laws of N.Y. at 69 (2003). Exercise
of nearly all of the powers of peace officers is explicitly
limited to when they are “acting pursuant to their special
duties.” Criminal Procedure Law §§ 2.20, 140.25; see also Joseph
W. Bellacosa, Practice Commentaries to Criminal Procedure Law §
2.20, 11A McKinney’s Cons. Laws of N.Y. at 56 (1981) (“It is
clearly [not] permissible to act, other than in the specified and
inherent duties of the office held and at those appropriate
times.”). In contrast, police officers perform general law
enforcement functions. See generally Joseph W. Bellacosa,
Practice Commentaries to Criminal Procedure Law § 1.20, 11A
McKinney’s Cons. Laws of N.Y. at 29 (1981) (under Criminal
Procedure Law, police officers are accorded primary, and often
exclusive, power and obligation with respect to matters involving
enforcement of criminal law).
III. ANALYSIS
A.

Authority to Physically Detain

You have asked whether a peace officer may physically detain
a person against whom he knows a warrant is outstanding pending
the arrival of a police officer to make the arrest. Although not
free from doubt, we believe that the peace officer who becomes
aware of an outstanding arrest warrant through the performance of
his special duties may physically detain the subject of the

3
warrant pending arrival of a police officer to make the arrest if
the subject of the warrant tries to leave.
Peace officers are expressly authorized to use physical
force to effect an arrest or prevent an escape pursuant to Penal
Law § 35.30. Criminal Procedure Law § 2.20(1)(b). Section 35.30
of the Penal Law provides that a peace officer,
in the course of effecting or attempting to
effect an arrest, or of preventing or
attempting to prevent the escape from
custody, of a person whom he reasonably
believes to have committed an offense, may
use physical force when and to the extent he
reasonably believes such to be necessary to
effect the arrest, or to prevent the escape
from custody . . . .
Penal Law § 35.30(1). Comparable language applying to citizens
found in Penal Law § 35.30(4) has been interpreted to authorize a
citizen to use force to prevent a person who committed an offense
from leaving the scene pending the arrival of a police officer.
In People v. Borrero, 118 A.D.2d 345 (1st Dep’t 1986), the court
upheld the authority of a drugstore security guard to detain a
person who had drawn a gun and made threats with it, until a
police officer arrived to make the arrest. In that case, the
detention resulted in a confrontation in which the detained
person died. The court reversed the conviction of the security
guard for criminally negligent homicide, on the ground that the
guard was acting within his lawful authority under Penal Law §
35.30(4) to use ordinary physical force to the extent necessary
to facilitate the arrest of the detained person by a police
officer or to prevent his escape. The court found that the guard
had
left the store for the specific purpose of effecting
Johnson’s arrest. According to [the guard], he had
seen a policeman pass by only a few minutes earlier . .
. . Therefore, when [the guard] went outside, it was his
intention to find the police officer or else to detain
Johnson until the arrival of the police summoned by the
druggist. Under Penal Law § 35.30(4), [the guard] had the
authority to use ordinary physical force to the extent
necessary to arrest Johnson or prevent his escape.
Id. at 350. See also People v. Karp, 158 A.D.2d 378, 381 (1st
Dep’t), rev’d on other grounds, 76 N.Y.2d 1006 (1990) (force
designed to halt flight of suspect and secure his apprehension
falls squarely within purview of Penal Law § 35.30). If a

4
security guard who is not a peace officer has the authority to
detain a person for arrest by a police officer, a peace officer
has no less authority to do the same.
The peace officer must “reasonably believe” that the subject
of the physical detention committed an offense. Penal Law
§ 35.30. This standard is, in our opinion, met by the peace
officer’s knowledge of the existence of an outstanding arrest
warrant. An arrest warrant is issued upon a finding by an
impartial magistrate that reasonable cause exists to believe that
the subject of the warrant committed an offense charged.
Criminal Procedure Law § 120.20(2). We believe that a peace
officer who has knowledge of the existence of an outstanding
arrest warrant, relying on the reasonable cause determination by
the magistrate, would reasonably believe that the subject of the
warrant has committed an offense.
Therefore, applying Penal Law § 35.30 as interpreted by the
Borrero court, we believe that a peace officer is justified in
using the degree of physical force he reasonably believes
necessary to prevent the subject of the warrant from leaving
pending the arrival of a police officer to make the arrest.1
We note that, except in circumstances where the peace
officer is authorized to make an arrest, as discussed below, it
is necessary that the peace officer merely detain and not in fact
make an arrest. Because the line between temporary detention and
arrest can be a fine one, a peace officer exercising the power to
detain should avoid a lengthy period of detention and should use
the minimum force necessary.
As we explain below, we believe that knowledge of the
existence of the outstanding warrant would provide probable cause
for a peace officer to make an arrest, but a peace officer does
not have the authority to make an arrest in all instances. Thus,
the safer course may well be for a peace officer who comes across
a person against whom an arrest warrant is outstanding to
physically detain the person if he tries to leave, to alert
police officers, and to leave the arrest for them.
B.

Authority to Arrest

As explained below, we believe that a peace officer may, in
some instances, arrest a person against whom a warrant is
outstanding, based on knowledge of the existence of the warrant.
Section 35.30 limits the use of deadly physical force.
Penal Law § 35.30(1).
1

5
The legal question arises because peace officer officers
generally lack authority to execute an arrest warrant.2 See
Criminal Procedure Law § 120.50 (specifying the officers to whom
an arrest warrant may be addressed); id. § 120.60 (specifying the
police officers who may execute an arrest warrant); Peter
Preiser, Practice Commentaries to Criminal Procedure Law
§ 120.60, 11A McKinney’s Cons. Laws of N.Y. at 507 (2004) (“Peace
officers . . . cannot receive delegated authority to execute New
York warrants.”).
Peace officers are, however, authorized to make warrantless
arrests for certain offenses when they have “reasonable cause to
believe” that a particular person has committed such an offense.
Criminal Procedure Law § 2.20(1)(a); id. § 140.25. The offense
need not be committed in the peace officer’s presence, see id. §
140.25(1)(b), (3)(b), and thus the peace officer necessarily is
authorized to make a warrantless arrest based on information
obtained by other than his observation of the commission of the
offense. This information could be provided to the peace officer
by another person, such as a reliable citizen informant. See
People v. Rivera, 210 A.D.2d 895 (4th Dep’t 1994) (identified
citizen informant is presumed to be reliable source of
information upon which to base probable cause for arrest).
Logically, if a peace officer may rely on information provided by
a citizen to make the determination himself that reasonable cause
to arrest exists, he should be able to make an arrest based on
knowledge that an impartial magistrate determined reasonable
cause before issuing the arrest warrant.
Considering these two sources of authority, we conclude that
the better answer is that a peace officer may make an arrest
based on knowledge of an outstanding arrest warrant under certain
circumstances described below, in which there is an appropriate
connection to the special duties of the peace officer.
Police officers who rely on knowledge of a valid outstanding
arrest warrant have reasonable cause to make an arrest.3 See
An example of an exception to this general rule is provided
by Criminal Procedure Law § 120.55, which authorizes a parole
officer or probation officer to execute an arrest warrant against
a defendant who is under the supervision of the state Division of
Parole or a local or state probation department under certain
circumstances.
2

The arresting officer of course runs the risk that the
information indicating the existence of an outstanding valid
warrant is not accurate or up-to-date; the good faith belief in
3

6
People v. Reddick, 265 A.D.2d 855 (4th Dep’t 1999) (“When the
[police] officer learned of the existence of the outstanding
warrant, he had probable cause4 to arrest defendant.”). We
believe that a peace officer may similarly rely on knowledge of
an outstanding warrant to provide reasonable cause to make the
arrest. The “reasonable cause” standard applies to arrests made
by both police officers and peace officers. Compare Criminal
Procedure Law § 140.25(1), (3) (peace officers) with id.
§ 140.10(1) (police officers); see id. § 70.10(2) (definition of
“reasonable cause to believe that a person has committed an
offense” applicable to Criminal Procedure Law). Moreover, to
conclude otherwise would lead to the absurd result of a peace
officer being able to rely on information provided by a reliable
citizen but not being able to rely on knowledge that an
independent magistrate determined that reasonable cause to arrest
existed. We therefore conclude that knowledge of the existence
of an outstanding arrest warrant may provide a peace officer with
reasonable cause to make an arrest.
This is not, however, the end of the inquiry. While a peace
officer might have reasonable cause to make an arrest, he is not
authorized to execute an arrest warrant, and he is authorized to
make a warrantless arrest only in the situations specified in
Criminal Procedure Law § 140.25. We put to one side a peace
officer’s authority to make an arrest for an offense committed in
his presence, see Criminal Procedure Law § 140.25(1)(a), (3)(a),
and (4), and consider only those provisions that authorize an
arrest on reasonable cause to believe the person has committed a
crime, namely Criminal Procedure Law § 140.25(1)(b) and (3)(b).
Section 140.25(1)(b) provides that a peace officer may
arrest a person without a warrant for a crime5 when he has
reasonable cause to believe that such person has committed such
crime, so long as the peace officer is acting “pursuant to his
special duties.” According to section 140.25, a peace officer
acts pursuant to his special duties in making an arrest either
when the arrest is for (1) an offense defined by a statute that
the continued efficacy of the warrant does not validate an arrest
based on a warrant that has already been executed or was vacated
or is otherwise invalid. People v. Jennings, 54 N.Y.2d 518
(1981); People v. Lent, 92 A.D.2d 941 (2d Dep’t 1983).
“Reasonable cause” is synonymous with “probable cause.”
See People v. Maldonado, 86 N.Y.2d 631, 635 (1995).
4

A crime is a misdemeanor or a felony, but not a violation.
Penal Law § 10.00(6).
5

7
the peace officer, by reason of the specialized nature of his
particular employment or by express provision of law, is required
or authorized to enforce, or (2) an offense committed or
reasonably believed by him to have been committed in such manner
or place as to render arrest of the offender by such peace
officer under the particular circumstances an integral part of
his specialized duties. Criminal Procedure Law § 140.25(2).
Thus, to determine whether a particular peace officer may make a
particular warrantless arrest under this provision, it is
generally necessary to consult the legal authority that
authorizes employment of the peace officer to determine whether
“the offense falls within the specialized nature of the officer’s
employment or is one which by express provision of law the
officer is authorized or required to enforce.” Peter Preiser,
Practice Commentaries to Criminal Procedure Law § 140.25, 11A
McKinney’s Cons. Laws of N.Y. at 328 (2004).
Section 140.25(3)(b) provides that a peace officer, whether
or not he is acting pursuant to his special duties, may arrest a
person for a felony when he has reasonable cause to believe the
person has committed the felony within the geographical area of
the peace officer’s employment.
In sum, the offenses for which a peace officer may make an
arrest, when the offense was not committed in his presence, are
limited to (1) misdemeanors or felonies proscribed by laws the
enforcement of which come within the peace officer’s special
duties,6 and (2) felonies committed within the peace officer’s
geographical area of employment, which in this case appears to be
the County, see Criminal Procedure Law § 140.25(5)(b). We will
refer to these hereinafter as “qualifying offenses.” Therefore,
even when the peace officer has reasonable cause to believe that
an offense was committed, the peace officer must determine that
the offense underlying the warrant was an offense for which he
may properly make an arrest.
Finally, because peace officers are generally not authorized
to execute arrest warrants, as discussed above, it is necessary
For an example of an arrest improperly made because it was
outside the scope of a peace officer’s special duties, see People
v. Hartman, 114 Misc. 2d 138 (Crim. Ct. Bronx Co. 1982)
(conviction for resisting arrest was set aside because arrest for
blowing car horn on city street was invalid when made by railroad
policeman, a peace officer; the peace officer was not acting
pursuant to his special duties when enforcing a traffic
infraction on a city street, nor was the arrest an integral part
of the specialized duties of the peace officer).
6

8
to distinguish between relying on the warrant for probable cause,
which is permissible, and executing the warrant, which is not.
We believe the distinction may turn on the manner in which the
peace officer becomes aware of the outstanding warrant. We
distinguish between, for example, the peace officer who, while
performing his special duties, validly stops a person and then
discovers, through a computer check, that a warrant is
outstanding, and the peace officer who is given a list of people
against whom warrants are outstanding and is told to look for
those people (unless, of course, the special duties of the peace
officer authorize such seeking-out).
We believe that in the first instance, because the peace
officer has an independent basis for approaching a person in the
performance of his special duties, becomes aware of the
outstanding warrant through the performance of his special
duties, and the arrest flows from the performance of those
duties, this peace officer would not be considered to be
executing the arrest warrant. While we are not aware of this
precise point having been judicially determined, language used by
courts suggests the distinction. For example, in People v.
Gulley, 809 N.Y.S.2d 483 (Sup. Ct. Queens County 2005), a police
officer validly stopped the defendant to issue a summons for an
administrative code violation. During the stop, the police
officer discovered an outstanding warrant for the defendant’s
arrest. The court determined that at that point the police
possessed probable cause to arrest him. The validity of the
arrest based on the warrant was described in terms of the
arresting officer’s probable cause, rather than in terms of
executing the outstanding warrant. See also People v. Cherry,
2006 N.Y Misc. LEXIS 3615 (Sup. Ct. Kings County 2006) (police
lawfully requested information from defendant; his responses
permitted the police to detain defendant and authenticate his
identification; once they discovered an outstanding warrant, they
had probable cause to arrest).
In the second instance, however, the peace officer has no
basis for approaching the person other than knowledge of the
outstanding warrant. Under these circumstances, we believe that
the peace officer could reasonably be viewed to be executing the
arrest warrant. Language in People v. Ebron, 275 A.D.2d 490 (3d
Dep’t 2000), lends support to this conclusion. In Ebron, a
police officer was informed by a colleague that an arrest warrant
had been issued for the defendant’s arrest. The police officer,
who already knew the defendant, saw the defendant during his
patrol. He approached the defendant, confirmed the defendant’s
identity, and informed him of the outstanding warrant. After
verifying with his colleagues the validity of the warrant, the
police officer arrested the defendant. In upholding the validity

9
of the arrest, the court stated, “This case does not involve a
warrantless police-initiated street encounter with a citizen
which would necessitate consideration of the De Bour factors
[citation omitted]. Rather, in this case, the arresting officer
approached defendant to execute a concededly valid arrest
warrant.” 275 A.D.2d at 491 (emphasis added); see also United
States v. Miller, 382 F. Supp. 2d 350, 369, n.9 (N.D.N.Y. 2005)
(distinguishing between valid arrest made with probable cause
based on outstanding warrant and delegation of power to execute
outstanding warrant). Under these circumstances, we believe that
the peace officer would be performing general law enforcement
duties, a responsibility of police, rather than peace, officers.
In sum, we conclude that a peace officer may make a
warrantless arrest based upon knowledge of an outstanding arrest
warrant for a qualifying offense when the peace officer learns of
the outstanding warrant through the performance of his special
duties. We recognize that the limitations on the authority to
arrest described above may result in an impracticable standard
for particular types of peace officers to use. As we explained
above, we believe that knowledge of the existence of the
outstanding warrant would provide sufficient basis for a peace
officer to physically detain the subject of a warrant, regardless
of whether the underlying offense is a qualifying offense or not,
pending the arrival of a police officer to make an arrest. Thus,
the simpler course may well be for a peace officer who, through
the performance of his special duties, comes across a person
against whom an arrest warrant is outstanding to physically
detain the person if he tries to leave and to alert police
officers and allow the arrest to be made by them.
Therefore, in response to your inquiry, we conclude that in
those instances where a peace officer becomes aware of an
outstanding warrant through the performance of his special
duties, he may physically detain such person pending arrival of a
police officer. We further conclude that in some, but not all,
instances, a peace officer may properly make an arrest based on
knowledge of the outstanding warrant.
The Attorney General issues formal opinions only to officers
and departments of state government. Thus, this is an informal
opinion rendered to assist you in advising the municipality you
represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions