The Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
February 10, 1997 97-R-0018
FROM: Lawrence K. Furbish, Assistant Director
RE: Legal Authority Surrounding a Capias
You asked for background on the legal writ called a “capias.” You wished to know what authority and power goes with serving the writ; for example, can the server break down a door or search a premises. You are particularly interested in a “capias mittimus,” which involves individuals owing child support.
A capias is a civil writ, derived from old English common law, directing a sheriff or officer to arrest someone and bring him before the court. There are several different types of capias, but a “capias mittimus,” the term used in our statutes to refer to the specific writ to bring people owing child support before the court, appears to be unique to Connecticut. Generally a “mittimus” refers to a writ, again derived from old common law, directing a sheriff or officer to take a person from court or jail and deliver him to prison authorities for incarceration.
We found very little Connecticut case law dealing with a capias and no statutes, regulations, practice book provisions, or cases dealing with issues of the ancillary authority or powers of the official serving the capias. Secondary sources indicate that officers may not break into a person's premises to initiate an initial civil arrest, but they may break in to rearrest the person if he escapes after the initial arrest. Arrests under civil process must be made at a reasonable time, taking into account the circumstances and whether it would produce an undue hardship on the arrestee.
CAPIAS WRIT IN GENERAL
The writ of capias was developed in English common law (some authorities date it to the middle ages, see Brooklyn Law Review, Vol. 43, p. 383, 1976) as attachment of the body of a defendant, as opposed to attachment of his goods or property (Stephenson, Ct. Civil Proc. § 38). A capias ad respondendum ordered the sheriff to seize the defendant and hold him to respond to the civil action, while following a judgment, a capias ad satisfaciendum could send the debtor to jail until his debt was satisfied. With the authorization of default judgments against nonappearing defendants in 1713 part of the reason for such writs ended. By the 1800s, imprisonment for debt became rare and use of these writs declined.
Use of a capias is authorized in several Connecticut statutes. When someone arrested for a misdemeanor and released fails to appear, the court must issue a rearrest warrant “or a capias” (CGS § 54-1h). Superior Court judges are specifically authorized, but not required, to issue a capias “for witnesses and for defendants who violate any order of the court regarding any court appearance” (CGS § 54-2a(a)). A judge may issue a capias in lieu of a rearrest warrant for any defendant who fails to appear for trial (CGS § 54-2a(c)). When a bail commissioner believes that someone out of jail under a statutory condition of release intends not to appear, he can ask the court to bring the person back into court to reexamine the conditions of release, and if the court finds reasonable grounds for the commissioner's belief, the judge must issue a capias “directed to a proper officer or indifferent person, commanding him forthwith to arrest and bring the person to the court” (CGS § 54-69a). Whenever a person released on bond fails to appear, the court must order the bond forfeited and issue a rearrest warrant or a capias directing a proper officer to take the defendant into custody (CGS § 54-65a). When an officer takes a person into custody on a capias, he must immediately bring the person before the court that issued the capias, the court clerk if court is not in session, or a correctional center if the clerk's office is closed. If the court sets conditions of release, the clerk or correctional administrator must release the person if he agrees to the conditions but if he will not, the person must be held until the next court session (CGS § 54-64d).
The statutes governing civil actions allow the court to issue a capias directing a proper officer to arrest and bring before the court anyone who has been properly summoned to be a witness and fails to appear (CGS § 52-143(e)). The Practice Book contains a similar authorization for the court to issue a capias when someone properly subpoenaed fails to appear (Practice Book § 792). The Supreme Court has interpreted this authority to be at the discretion of the trial court and not mandatory (DiPalma v. Wiesen, 163 Conn 293 (1972)). The post-judgment procedures statutes prohibit the court from issuing a capias against someone who fails to comply with a discovery, turnover, or protection order unless the court finds that the person has been subpoenaed to appear in court and has failed to do so (CGS § 52-400b).
The probate court may also use a capias to secure the attendance of anyone subpoenaed to give testimony concerning any matter before the court (CGS § 45a-129).
The only statutory reference to a “capias mittimus” we could find involves enforcement of child support orders. The statutes authorize family support magistrates to use the “contempt of court” power to enforce child support orders and to require obligors (persons owing child support) to post a bond to assure attendance before the Family Magistrate Division. The statute allows a family support magistrate to use a capias to order the arrest of any obligor who fails to appear at the time and place specified in the order (CGS § 46b-231(m)(7)).
MITTIMUS WRIT IN GENERAL
A “mittimus” under common law was a written order from a court or magistrate directing a sheriff or other officer to convey a person named in the order be conveyed to jail and the jailer to receive and safely keep the person (Words and Phrases, Mittimus). An ordinary mittimus directs the officer to convey the convict to jail or prison according to the sentence; it does not authorize an arrest of someone at large who is not an escaped prisoner.
The statutes prohibit anyone, other than defendants being held for a town that has no lockup, from being committed to the Somers (renamed Osborn) correctional institution or a community correctional center without a mittimus signed by the judge or court clerk (CGS § 54-97). The statutes require sheriffs to execute each mittimus by delivering prisoners to the warden or his agent (CGS § 54-98). The Supreme Court has observed that “a mittimus after conviction in a criminal case is similar to an execution after judgment in a civil case; it is final process and carries into effect the judgment of the court” (Commissioner of Correction v. Gordon, 228 Conn.384 (1994)).
ANCILLARY POWER AND AUTHORITY
We were unable to find any Connecticut court cases construing the ancillary power and authority that goes with serving a capias. Secondary sources contain a few general principles. Generally no privilege exists to break into someone's dwelling to make a civil arrest (5 Am. Jur. 2d Arrest, § 120). But an officer may break into a dwelling in order to recapture someone he had previously arrested under civil process (2nd Restatement of Torts § 129). When arresting under civil process, the person making the arrest may arrest at any time that is not unreasonable (2nd restatement of Torts § 129). An arrest is made at an unreasonable time if, “in light of the circumstances, it would produce an undue hardship upon the person arrested.” The circumstances include the gravity of the offense, the chance of escape or further harm, and the person's opportunity to secure prompt bail or a hearing. Thus arresting someone on Saturday evening for a parking violation when he cannot get a hearing or bail until Monday would not be acceptable unless there was evidence that he would flee the jurisdiction.
The Connecticut arrest statute (CGS § 54-2a) distinguishes between a bench warrant for arrest, which is criminal, and a capias, so it would seem that provisions applying to criminal arrest might not apply to a civil capias even though a capias is called an arrest. The U.S. Supreme Court has often ruled on the applicability of the Fourth Amendment to the Constitution to arrest. The principles in these cases, such as a reasonable expectation of privacy and restrictions on the amount of force that can be used to make the arrest, would clearly seem to apply to a capias situation. The courts require probable cause for a search, and the items being sought must be connected with criminal activity. Because a capias situation does not deal with criminal activity, it would seem logical that a search would not be allowed under one. However, under the “plain view” doctrine, if an officer was making a capias arrest and while doing so saw evidence of criminal activity, such as illegal drugs, it is possible that he could seize the illegal substance. One the other hand, the officer making the capias arrest is operating under a court order to seize the defendant and present him in court, and it is not clear if he has ancillary law enforcement activities. As you know, sheriffs have some limited law enforcement authority, but it is probably not the equivalent of the authority of the police.