Arrest

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How to Handle an Arrest

No Probable Cause = False Arrest

Carl Miller - The Arrest - Nov 11th, 1997

An arrest is the use of legal authority to deprive a person of their freedom of movement.

An arrest is generally made with an arrest warrant. An arrest may be made without a warrant if probable cause and exigent circumstances are presented at the time of the arrest.

Probable cause is a reasonable belief of the police officer in the guilt of the suspect, based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where the police officer has a reasonable belief that the suspect has either committed a crime or is about to commit a crime. The police officer might also arrest the suspect to prevent the suspect’s escape or to preserve evidence. However, a warrantless arrest may be invalidated if the police officer failed to demonstrate exigent circumstances and probable cause.

The right to make warrantless arrests are commonly defined and limited by statutes subject to the Due Process of Law guaranty of the U.S. Constitution. The suspect arrested without a warrant is entitled to prompt judicial determination generally made in 48 hours.

An arrest may trigger certain procedural requirements; for instance, the person under arrest must be given a Miranda Rule / Miranda Warning.

See, e.g. Maryland v. Shatzer, 130 S.Ct. 1213 (2010).

At common law, as a general rule, an arrest could not be made without warrant for an offense less than a felony, except for a breach of the peace. 3 Cyc. 800; State v. Sims 16 S.C. 486

At common law an arrest could not be made of a person charged with a misdemeanor except on warrant of a magistrate, unless it involved a breach of the peace, in which case the offender might be arrested by any person present at its commission. (1 Chitty, Criminal Law, 1; Carpenter v. Mills. 29 How. Pro R. 473)

It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches of the peace committed in the presence of the officer. Ex parte Rhodes. 202 Ala. 68, 79 So. 462,46 ; citing Sarah Way’s Case, 41 Mich. 304, 1 N.W. 1023 (1879), et al. Also cited and affirmed in Pinkerton v. Verberg. 78 Mich. 73, 44 N.W. 579, 583 (1889); State v. Williams. 4 Ore. 314, 77 Pac. 96, 969 (1904); Adair v. Williams. 24 Ariz. 422, 210 Pac. 84, 856 (1922)

State v. Clarke: The Clarke decision made it unlawful for police to make an arrest in misdemeanor crimes that happen outside their presence without a signed warrant from a judge.