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.
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.
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.
The constitutional law of arrest governs every occasion on which a government officer interferes with an individual's freedom, from full-scale custodial arrests at one end of the spectrum to momentary detentions at the other. Its essential principle is that a court, not a police officer or other executive official, shall ultimately decide whether a particular interference with the liberty of an individual is justified. The court may make this judgment either before an arrest, when the police seek a judicial warrant authorizing it, or shortly after an arrest without a warrant, in a hearing held expressly for that purpose. The law of arrest gives practical meaning to the ideal of the liberty of the individual, by defining the circumstances in which, and the degree to which, that liberty may be curtailed by the police or other officers of the government; it is thus a basic part of what we mean by the rule of law in the United States.
The principal constitutional standard governing arrest is the fourth amendment. This amendment is one article of the original bill of rights, which was held in barron v. baltimore (1833) to apply only to the federal government. But in mapp v. ohio (1961) the Fourth Amendment was held to be among those provisions of the Bill of Rights that are "incorporated" in the fourteenth amendment and is thus applicable to arrests by state as well as federal officers. (See incorporation doctrine.) Even without such a holding, of course, the Fourteenth Amendment, which regulates state interference with individual liberty, would have required the development of a body of law governing state arrests. The law so made might have been no less protective of the individual than the law actually made under the Fourth Amendment. As things are, however, the "unreasonableness" standard of the Fourth Amendment has been the basis of the constitutional law governing arrests by both federal and state officers.
What seizures are "unreasonable"? One obvious possibility is that seizures of the person should be held subject to the warrant clause, as searches are, and should accordingly be found "unreasonable" unless a proper warrant has been obtained or, by reason of emergency, excused. For many years the court flirted with such a rule, as in Trupiano v. United States (1948) and terry v. ohio (1968), but it never flatly required a warrant for arrests, and in United States v. Watson (1976) it rejected that rule at least for felonies. This decision rested partly upon a historical English common law rule excusing the warrant for felonies, but despite the similarities of language the analogy is not precise. In English law the term "felony" was reserved for offenses punishable by death and forfeiture, which give rise to a high probability of an attempt to flee; with us "felony" is usually defined by statute as an offense for which the possible punishment exceeds one year's imprisonment. The other basis for Watson was a combination of convenience and probability: because a warrant will in fact be excused on emergency grounds in a large class of cases, it is wise to dispense with the requirement entirely, and thus avoid the costs—improper arrests without warrants, delays to obtain unnecessary warrants—necessarily associated with close cases. The Court left open the possibility that arrest warrants may be required for misdemeanors, at least (as at common law) for those not involving a breach of the peace nor committed in the presence of the arresting officer. This question is at present unresolved.
Somewhat more stable as a standard of reasonableness has been the substantive requirement that an arrest must be based upon probable cause. This is not a term of scientific precision. It means essentially that an officer must demonstrate to a magistrate, before or after the arrest, that he has sufficient reason to believe in the guilt of the suspect to justify his arrest. Although probable cause is not susceptible of precise definition, the cases decided by the Court have gradually given it some content, especially where, as in spinelli v. united states (1969), an officer's judgment rests on information received from another. In such cases the basic rule is that the officer must give the magistrate reason to trust the honesty of his informant, and reveal the grounds upon which the informant's charge rests—for example, that the informant saw a crime committed, or the suspect told him he had done it.
Probable cause is of course required only when there has been a "seizure" to which the Fourth Amendment speaks. The courts have found that term difficult to define as well, and difficult in ways that make the meaning of "probable cause" itself more uncertain. The world presents a wide range of police interferences with individual liberty, from minor detentions to full-scale incarceration, and it is widely agreed that some of these intrusions, at every level on the scale, are reasonable and appropriate and that others—again at every level—are inappropriate. Were every interference with liberty regarded as a "seizure" requiring demonstration of "probable cause," the Court would thus face a serious delemma: to hold minor intrusions invalid without a showing of traditional probable cause would outlaw an obviously important and generally accepted method of police work; but to permit them on probable cause grounds would water down the probable cause standard, greatly reducing the justification required to support a full-scale arrest. On the other hand, to hold that such intrusions were not "seizures" would seem to say that they are not regulated by the Fourth Amendment at all—nor under present doctrine, by the Fourteenth—and could therefore be inflicted upon a citizen at an officer's whim. In Terry v. Ohio the Court tried to deal with this problem by regarding some "seizures" (less than full-scale arrests) as not requiring "probable cause" but as nonetheless subject to the "reasonableness" requirement of the Fourth Amendment. Terry involved the detention of persons an officer reasonably suspected to be planning an armed robbery, during which he asked them their identity and frisked them for weapons. The Court took great pains to make clear that it was not establishing a general right to detain on less than probable cause, and that the "reasonableness" of the seizure validated there was closely tied to the protective nature of the officer's measures and to his realistic apprehension of danger. The Court intimated that no detention beyond that necessarily involved in the frisk would be valid. But cases since Terry have undercut that position deeply. In Adams v. Williams (1972), for example, the Court explicitly talked about a right to detain on suspicion, and in United States v. Mendenhall (1980) a plurality of the Court held that there is no seizure when officers merely approach a person and ask him questions, even if they intend to arrest him, unless he can establish "objective grounds" upon which a reasonable person in his position would have believed he was not free to go. On the other hand, Dunaway v. New York (1979) expressly refused to adopt the view that increasingly lengthy detentions were permissible on increasingly good justification (which would effectively eliminate the idea that probable cause is required before "arrest," except in the technical sense of full-custody arrest); and Delaware v. Prouse (1979) held that a person driving a car may be stopped upon less than probable cause, but only if there is reasonable suspicion of a violation of law.
The precedents come to this: some confrontations between officers and citizens are not seizures at all; others are seizures that must be justified by a "reasonableness" requirement; still others are "arrests" for which probable cause is required. But there are no clear lines between the categories, and the Supreme Court has not given adequate attention to the ways in which a "seizure" can grow into an "arrest," thus defeating the basic aim of the probable cause requirement.
James Boyd White
Hale, Matthew (1685) 1972 The Pleas of the Crown. London: Professional Books.
Lafave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment. Mineola, N.Y.: Foundation Press.
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.