AGO 2012-03.

Case Date:March 22, 2012
Connecticut Attorney General Opinions 2012. AGO 2012-03. Office of The Attorney General State of Connecticut2011-08March 22, 2012Peter J. Martin, Esq., Chairperson State Marshal Commission 165 Capitol Avenue, Room 483 Hartford, CT 06106Dear Atty. Martin: You have asked for this Office's opinion regarding the application of the Fourth Amendment to the United States Constitution(fn1) 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 lawfially permitted to 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 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(fn2) is found in Conn. Gen. Stat. § 52-143 (e) which provides, in relevant part, as follows:
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)(l) 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.
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...

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