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Arrest

ARREST

ARREST. An arrest occurs when a public officer acting under legal authority detains an individual to answer for a criminal offense. Historically, arrests were also made in connection with civil cases: a court might order a citizen apprehended to ensure that he or she fulfilled a contractual obligation. In modern times, however, a deprivation of physical liberty is usually justified only as an instrument of criminal law enforcement.

Statutes typically authorize federal and state law enforcement officers to arrest suspects and, concomitantly, set limits on that authority. In some jurisdictions, for example, the police are only empowered to make arrests for serious offenses, not for nonviolent misdemeanors or traffic offenses punishable by a fine. More often, legislatures authorize arrests in any circumstance that the Constitution allows officers to take suspects into custody.

The Fourth Amendment to the Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and bars the issuance of warrants "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." The meaning of that language is not self-evident. Accordingly, the Supreme Court has fashioned a body of more precise doctrines to implement the Fourth Amendment's fundamental principles. Many of these doctrines bear on police authority to make an arrest.

Although the term "arrest" does not appear in the Fourth Amendment explicitly, the Supreme Court has declined to hold, on that basis alone, that the Fourth Amendment has no application to arrests. The amendment addresses both "searches" and "seizures." The Court has interpreted "seizures" to refer both to the confiscation of property and to the apprehension of persons. An arrest, by the Court's account, is a "seizure of the person." This much of the Court's work is not controversial. The police must have some authority to make arrests in order to enforce criminal law effectively. Yet an arrest necessarily entails an extraordinary encroachment on individual liberty. It is expected that the Constitution's demand that any arrests the police make must be reasonable restraints on citizens' freedom of movement.

The Fourth Amendment sometimes imposes the same, or similar, restrictions on the authority of the police to search, on the one hand, and their authority to arrest, on the other. For example, the police can conduct a search only if they have probable cause to believe particular evidence will be found. Similarly, the police can make an arrest only if they have probable cause to believe a person has committed or is committing a criminal offense. Yet the rules governing searches do not always apply to arrests. The general rule for searches is that the police cannot routinely rely on their own judgment regarding the existence of probable cause. Whenever there is time, they must explain to a magistrate why they think they will discover evidence in the place they wish to search. The magistrate, in turn, will issue a warrant authorizing the officers to proceed if, in his or her judgment, the facts and circumstances establish probable cause. In the case of an arrest, by contrast, the police can usually proceed on the basis of their own determination of probable cause.

Ideally, it would be better if both searches and arrests were made only after a magistrate concludes that probable cause exists and issues a warrant. Police officers are engaged in detecting crime and apprehending perpetrators. They may believe they have sufficient cause for invading a suspect's privacy or depriving him or her of liberty. But their judgment may be clouded by zeal. Judges are detached from the law enforcement mission, and comparatively neutral. Thus, their judgment may be more reliable. The reason for the distinct treatment of searches and arrests is pragmatic. In the case of a search, the Court has concluded that the value of a judicial determination of probable cause outweighs the costs of requiring police officers to postpone action until they have procured a warrant. A search can typically be delayed without undermining its purpose. The suspect is often unaware that the police intend to conduct a search, and thus, while police take their case to a magistrate, incriminating evidence would not be removed. In the case of an arrest, by contrast, the Court has concluded that delay can jeopardize public safety. The police may need to capture a suspect caught in the act or attempting to flee. If they delay action obtaining a warrant from a magistrate, the suspect may abscond. Accordingly, officers can rely on their own determination of probable cause and make an arrest without benefit of a warrant issued by a judge. This reasoning is not perfectly symmetrical. The usual rule requiring a warrant for a search is subject to exceptions for exigent circumstances. If there is no time to go to a judge before conducting a search, the police typically may proceed on the basis of their own judgment regarding probable cause. There is no mirror-image rule that the police must obtain a warrant to make an arrest when there is time to do so. In the case of an arrest, the Supreme Court has decided that police need a clear rule on which to rely, one subject to no exceptions and requiring additional judgment in the field. That they usually need an arrest warrant is a rule that serves this purpose.

Any significant interference with a person's freedom of movement is a seizure that must be justified in light of the Fourth Amendment. But not every seizure is an arrest implicating the particular Fourth Amendment standard pertaining to arrests: the requirement of probable cause. If the police only stop a person on the street for a brief period, their actions are subject to a different and less rigorous test. The police do not need probable cause to believe that a person has committed or is committing an offense. They need only reasonable suspicion that a crime is in progress. The difference between probable cause and reasonable suspicion is elusive. It is clear, however, that the latter is less demanding. It follows that police may stop a person for a short time on the basis of facts and circumstances that would not justify an arrest.

This distinction has important practical consequences. The Supreme Court has held that police may conduct searches incident to both arrests and "stops." A search incident to an arrest can be extremely thorough. The suspect is about to be transported to a police station for the initiation of a criminal prosecution. The Court has held that the additional intrusion associated with an incidental search for evidence is minimal by comparison. A search incident to an investigative stop, however, must be more limited. By hypothesis, the suspect will be in the officer's presence only temporarily. The point of a search incident to a stop is not to look for evidence that might be incriminating, but rather to safeguard the officer during the encounter. Accordingly, the officer may only "frisk" (pat down) a person's outer clothing to determine whether he or she has a weapon and may reach inside the person's clothing only if the officer feels something that could be a dangerous instrument.

The Supreme Court has held that evidence obtained by means of an invalid stop or arrest usually must be excluded if and when the person is charged and brought to trial. The rationale of the "exclusionary rule" is that police must be discouraged from disregarding Fourth Amendment limits on their authority. If they know that evidence discovered during an invalid stop or arrest will be inadmissible, they will have an incentive to behave properly (and thus to secure evidence that can be used to prove a suspect's guilt). Accordingly, if the police obtain incriminating evidence when they search a person they have detained, it is crucial to determine whether the original seizure of that person was a stop or an arrest. If it was a stop, the evidence will be admissible at trial as long as the police took action on the basis of reasonable suspicion. If it was an arrest, the evidence will be admissible only if the police took action on the basis of probable cause.

BIBLIOGRAPHY

LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment. Rev. ed. St. Paul, Minn.: West, 1996.

LarryYackle

See alsoCivil Rights and Liberties ; Police Power ; Search and Seizure, Unreasonable .

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"Arrest." Dictionary of American History. . Encyclopedia.com. 18 Aug. 2017 <http://www.encyclopedia.com>.

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Arrest

ARREST

A seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the law. An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts. The federal Constitution imposes limits on both civil and criminal arrests.

An arrest may occur (1) by the touching or putting hands on the arrestee; (2) by any act that indicates an intention to take the arrestee into custody and that subjects the arrestee to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. There is no arrest where there is no restraint, and the restraint must be under real or pretended legal authority. However, the detention of a person need not be accompanied by formal words of arrest or a station house booking to constitute an arrest.

The test used to determine whether an arrest took place in a particular case is objective, and it turns on whether a reasonable person under these circumstances would believe he or she was restrained or free to go. A reasonable person is one who is not guilty of criminal conduct, overly apprehensive, or insensitive to the seriousness of the circumstances. Reasonableness is not determined in light of a defendant's subjective knowledge or fears. The subjective intent of the police is also normally irrelevant to a court's determination whether an arrest occurred, unless the officer makes that intent known. Thus, a defendant's presence at a police station by consent does not become an arrest solely by virtue of an officer's subjective view that the defendant is not free to leave, absent an act indicating an intention to take the defendant into custody.

An arrest constitutes a seizure under the fourth amendment to the U.S. Constitution, and thus the procedures by which a person is arrested must comply with the protections guaranteed by the Fourth Amendment or the arrest will be invalidated and any evidence seized during the arrest or confessions made after the arrest will typically be suppressed. The U.S. Supreme Court has ruled that arrests made without a valid arrest warrant based on probable cause are presumptively invalid under the Fourth Amendment. Similarly, arrests made pursuant to a warrant that is later ruled defective may also be declared invalid, unless the officer in procuring the warrant and making the arrest acted in good faith.

However, warrantless arrests do pass constitutional muster under some circumstances. The Supreme Court has ruled that warrantless arrests can be made when the circumstances make it reasonable to do so. For example, no warrant is required for a felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime. Felony arrests in places not open to

the public generally do require a warrant, unless the officer is in hot pursuit of a fleeing felon. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The Fourth Amendment also allows warrantless arrests for misdemeanors committed in an officer's presence.

The exceptions to the Fourth Amendment's warrant requirement are based on the court's reluctance to unduly impede the job of law enforcement officials. Courts attempt to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public. Always requiring police officers to take the time to obtain an arrest warrant could result in the destruction of evidence, the disappearance of suspects, or both.

When an officer does seek an arrest warrant, the officer must present evidence to a neutral judge or magistrate sufficient to establish probable cause that a crime has been committed. The Supreme Court has said that probable cause exists when the facts within an officer's knowledge provide a reasonably trustworthy basis for a person of reasonable caution to believe that an offense has been committed or is about to be committed. Courts will deny requests when the warrant fails to describe in particularized detail the person to be arrested. The evidence upon which a warrant is based need not be ultimately admissible at trial, but it cannot be based on knowingly or intentionally false statements, or statements made in reckless disregard of the truth. However, inaccuracies found in a warrant due to ordinary negligence will not typically jeopardize a warrant's validity.

Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, the Fourth Amendment prohibits police officers from detaining pedestrians and conducting any kind of search of their clothing without first possessing a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. terry v. ohio, 392U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 (1968). Police may not even compel a pedestrian to produce identification without first meeting this standard. Similarly, police may not stop motorists without first having a reasonable and articulable suspicion that the driver has violated a traffic law. If a police officer has satisfied this standard in stopping a motorist, the officer may conduct a search of the vehicle's interior, including the glove compartment, but not the trunk, unless the officer has probable cause to believe that it contains contraband or the instruments for criminal activity.

Investigatory stops or detentions must be limited and temporary, lasting no longer than necessary to carry out the purpose of the stop or detention. An investigatory stop that lasts too long turns into a de facto arrest that must comply with the warrant requirements of the Fourth Amendment. But no bright line exists for determining when an investigatory stop becomes a de facto arrest, as courts are reluctant to hamstring the flexibility and discretion of police officers by placing artificial time limitations on the fluid and dynamic nature of their investigations. Rather, the test is whether the detention is temporary and whether the police acted with reasonable dispatch to quickly confirm or dispel the suspicions that initially induced the investigative detention.

Not all arrests are made by members of law enforcement. Many jurisdictions permit private citizens to make arrests. Popularly known as citizen's arrests, the circumstances under which private citizens may place each other under arrest are normally very limited. All jurisdictions that authorize citizen's arrests prohibit citizens from making arrests for unlawful acts committed outside their presence. Most jurisdictions that authorize citizen's arrests also allow citizens to make arrests only for serious crimes, such as felonies and gross misdemeanors, and then only when the arresting citizen has probable cause to believe the arrestee committed the serious crime. Witnessing the crime in person will normally establish probable cause for making an arrest.

Both private citizens and law enforcement officers may be held liable for the tort of false arrest in civil court. An action for false arrest requires proof that the process used for the arrest was void on its face. In other words, one who confines another, while purporting to act by authority of law which does not in fact exist, makes a false arrest and may be required to pay money damages to the victim. To make out a claim for false arrest, the plaintiff must show that the charges on which he or she was arrested ultimately lacked justification. That is, the plaintiff in a false arrest action must show that the arrest was made without probable cause and for an improper purpose.

cross-references

Accusation; Charge; Civil Procedure; Contraband; Criminal Action; Criminal Law; Criminal Procedure; De Facto; Evidence; Felony; Fourth Amendment; Hot Pursuit; Liability; Probable Cause; Seizure; Tort Law.

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arrest

arrest, in law, seizure and detention of a person, either to bring him before a court body or official, or to otherwise secure the administration of the law. A person may be arrested for an alleged violation of civil or criminal law. Civil arrest is most often used when one has been guilty of civil contempt of court; but in some states of the United States it is also allowed in cases where it is feared the defendant may attempt to flee the court's jurisdiction or otherwise frustrate justice. Arrest is ordinarily accomplished by a warrant issued by a court or officer of justice. In civil arrest a warrant must always be issued and generally anyone named may not be apprehended on Sundays or legal holidays. There are no time restrictions on making a criminal arrest. Any person may make such an arrest without a warrant if a felony is committed in his presence; this is the so-called citizen's arrest. An officer of the law does not always need a warrant to arrest someone if he reasonably suspects that person on the basis of facts or circumstances of having recently committed a felony. In all other criminal cases there must be a warrant before the arrest. Force may be used in making an arrest, even to the extent of killing a person who resists arrest for a felony that endangers human life. If an arrest is contrary to law, the apprehended person may procure his release by habeas corpus and may bring a civil suit for false imprisonment. In most cases the person detained may be released if he can post bail. Diplomatic personnel and members of Congress and of state legislatures during legislative sessions are exempt from arrest.

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arrest

ar·rest / əˈrest/ • v. [tr.] 1. seize (someone) by legal authority and take into custody: the police arrested him for possession of marijuana. 2. stop or check (progress or a process): the spread of the disease can be arrested | [as adj.] (arrested) arrested development may occur. 3. attract the attention of (someone): his attention was arrested by a strange sound. • n. 1. the action of seizing someone to take into custody: I have a warrant for your arrest they placed her under arrest. 2. a stoppage or sudden cessation of motion: a cardiac arrest.

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arrest

arrest vb. XIV. — OF. arester :- Rom. *arrestāre, f. AR- + L. restāre stop behind, REST2.
So arrest sb. XIV.

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arrest

arrestabreast, arrest, attest, beau geste, behest, bequest, best, blessed, blest, breast, Brest, Bucharest, Budapest, celeste, chest, contest, crest, digest, divest, guest, hest, infest, ingest, jest, lest, Midwest, molest, nest, northwest, pest, prestressed, protest, quest, rest, self-addressed, self-confessed, self-possessed, southwest, suggest, test, Trieste, unaddressed, unexpressed, unimpressed, unpressed, unstressed, vest, west, wrest, zest •manifest • talkfest • Hammerfest •Almagest • backrest • armrest •redbreast • headrest • imprest •chimney breast • footrest • firecrest •incest • palimpsest • unprocessed •road test • undervest • conquest

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