Arrest Chapter 6

1
Arrest --- Chapter 6

• Power and limitations of arrest
• Arrest with a warrant
• Arrest without a warrant
• Citizens arrest
• Use of Force
• Entry into dwellings
• Effects of illegal arrest

2
Arrest defined

• The taking of a person into custody for the
  commission of an offense as the prelude to
  prosecuting him for it.
• All the below must be understood
• Intention of the officer
• The exercise of real or pretended authority
• Detention or restraint of a person, physical or
  assertion of authority
• Understanding by the arrestee that he/she is
  arrested

3
Seizure of a person tantamount to an Arrest

• If officers forcibly detain a person, even if
  they indicate the person is not under arrest and
  the detention is only for investigatory purposes,
  the detention generally will be construed by the
  court as an arrest if the person did not have the
  option to leave.
• (Dunaway v. NY, 1979 Hayes v. Fl. 1985) Dunaway
  v NY (1997).ppt
• The court is more lenient in this ruling where
  motor vehicle stops are concerned.

4
Arrest with a warrant

• Aguilar v. Texas (1964) the Court indicated a
  preference to arrest warrants
• the informed and deliberate determination of
  magistrates empowered to issue warrants are to
  be preferred over the hurried actions of
  officers who may happen to make arrest.
• Many officers feel having to get a warrant is a
  hassle.
• In reality, having a warrant protects the officer
  from civil liability, false arrest or
  imprisonment.
• Officers do not have to have the warrant in their
  hand.
• Any officer can serve a warrant that is
  outstanding

5
Arrest warrants

• Written order
• Issues by proper jurisdiction
• In the name of a government authority
• Based on probable cause
• Specifically directing the arrest of a person or
  persons
• Issued based on a sworn complaint
• Specifically describes the person to be arrested
• Specifically describes the crime violated
• Generally completed by the victim of the crime or
  a Law Enforcement officer.
• In felony cases this is replaced by an
  information or indictment.

6
Warrant cont.

• Any time a warrant is issued, the officer is
  bound to read the warrant to make sure it meets
  legal standards any officer should know regarding
  an arrest warrant.
• Summons is a demand by the court for the
  appearance at a specific time of a named person,
  however it does not require the taking into
  custody of the person named immediately.

7
Arrest without a warrant

• The rules that apply to arrest without a warrant
  differ between misdemeanors and felony offenses.
• Felony offenses penalties more than one year in
  state prison
• Misdemeanor offenses penalties one year or less
  in a jail.
• Misdemeanor offenses most jurisdictions allow
  arrest without a warrant for misdemeanors when
  the violation occurs in the view of the
  arresting officer.
• This must be based on the (5) senses of the
  individual officer.
• It cannot be based on the testimony of a witness
  or informant.
• If the crime has been completed before the
  arrival of the officer, the officer may
• Apply for a warrant, or
• Issue a summons for the suspect to appear in
  court.
• This is not a U.S. Constitutional issue and the
  states can allow arrest of misdemeanor suspects
  who committed offenses out of their view through
  legislation or state constitutional changes.

8
Misdemeanor arrest cont.

• These arrest must be based on the presence of
  probable cause.
• Promptness of the arrest
• Smith v. State (1956) if an officer witnesses a
  misdemeanor, then goes on other business and
  returns later to effect the arrest, the arrest
  would be illegal because the need for arrest
  without a warrant may have disappeared.
• This would not include the delay that occurs
  during the pursuit of the suspect or
• The time it would take to summons help from
  officers to effect the arrest.

9
Felony arrest without a warrant

• An officer may make a warrantless arrest for a
  felony if at the time of the arrest the officer
  has probable cause to believe that a felony has
  been, or is being committed by the person to be
  arrested.
• (U.S. v. Watson, 1976) allows for such arrest,
  however states can be more restrictive on this
  practice if they wish.
• All warrantless arrest for felonies must be based
  on the presence of probable cause established by
  facts and circumstances that would lead a
  reasonable person to believe a crime has been or
  is being committed by the suspect. U.S. v.
  Watson.ppt
• The officer is not civilly liable for false
  arrest or false imprisonment if he can articulate
  the facts and circumstances that lead him/her to
  believe that probable cause existed and the
  arrest would continue to be considered a legal
  arrest, even if the person is later acquitted.

10
Promptness of Felony Arrest

• Unlike with misdemeanors where the arrest must be
  made immediately, felony arrest may be delayed
  if U.S. v. Hoffa.ppt
• the delay does not violate the constitutional
  rights of the suspect examples include,
• looking for the defendant
• completing additional undercover investigations
• avoid alerting other potential offenders
• protecting the identity of undercover operatives,
  etc.
• U.S. v. Hudgens (1986) the court indicated that a
  suspect has no right to be arrested. (indefinite
  delay ok)

11
Issues related to a legal arrest

• Notice
• Notice that the person is under arrest
• Notice of the officers authority
• Notice of the cause of the arrest
• Notice may be delayed or dispensed with if
• it would endanger the officer or another officer
• it would adversely effect making the arrest
• the officer personally witnessed the offense
• it would make it reasonably likely that the
  offender could escape, or
• it would result in the destruction of evidence

12
Arrest issues cont.

• Time of day
• Generally, an arrest can be made with or without
  a warrant any time of the day or night
• Some states place limitations on misdemeanor
  arrest
• If the warrant specifies a time or date, the
  officer must comply.

13
Issues cont.

• Executing the warrant
• Officers are not required to have any personal
  belief related to the charges in a warrant. Only
  requirements
• they have the right person, (reasonable
  diligence), and
• the validity of the warrant itself. (not valid
  if)
• court has no jurisdiction
• the charge is not clearly stated
• the person charged is not clearly identified
• the warrant is not signed by a magistrate, or
• the warrant is not directed to a specific officer
  (if required)
• Once a person on a warrant has been identified,
  the officer must take him/her before the
  magistrate. Discretion is no longer with the
  officer.
• If possible, have warrant with you, not required
  however

14
Issues cont.

• Once a warrant is served, the officer must
• enter the date of the arrest,
• sign the warrant as the arresting officer,
• file the warrant with the issuing court.
• If the warrant is from out of the jurisdiction of
  the arresting officer, they may validate this
  element of service by making available the arrest
  report to the issuing court.
• If they fail to perform these functions, the
  warrant could be invalidated and the officer
  could become civilly liable for false arrest or
  imprisonment.

15
Issues cont.

• Service of Summons
• Similar to a warrant, however does not require
  the officer to take the person into custody.
• Summons requires appearance to a court at a
  specified time and date.
• Officer may serve the summons to the person, a
  responsible person within the household or
  through registered mail.

16
Issues cont.

• Assistance
• Any officer may request help to serve warrants or
  make arrest from any citizen.
• Many states, including Texas, makes that
  assistance mandatory.
• When a citizen helps an officer under these
  circumstances, they
• retain the same immunities and responsibilities
  of a peace officer.

17
Issues cont.

• Discretion
• Law enforcement officers primary duty is to
  protect the public at large.
• If the officer creates more danger to the public
  at large by making an arrest than it would
  protect the public from danger, the officer has
  the right, and to some degree, the obligation to
  delay the arrest.
• Any arrest should be justified not only legally,
  but also because of the circumstances that exist.
• The authority to arrest does not always mean the
  duty to arrest!!!

18
Place of the arrest

• In most states, any officer acting under the
  authority of a warrant or summons, may arrest or
  serve the summons, at any place within the state
  where the defendant may be found.
• On the other hand, without a warrant, officers
  outside their jurisdiction do not act in their
  capacity as an officer.
• Officers outside their state have no authority to
  arrest.

19
Place of arrest cont.

• Exceptions to inability to arrest outside ones
  jurisdiction
• arrest by a private citizen
• arrest made in fresh pursuit
• Citizens Authority to Arrest
• Officers have the same authority to arrest
  outside their jurisdiction as any other citizen
  would in felony cases. (Wisconsin v. Slawek 1983)
• This can be within a state or outside a state.
• Private citizens are bound to the same level of
  force used to affect an arrest as are officers.

20
Citizens authority to arrest cont.

• Under common law
• private citizens have a duty to arrest where
  felonies occur in their presence, and
• may arrest for misdemeanor offenses if,
• the offense is a breach of the peace, and
• the offense occurred in the citizens presence.
• (both of these conditions exist for officers
  outside their jurisdiction in states that
  recognize this common law)
• If an officer or citizen makes a false arrest or
  detention in these circumstances, they can be
  held civilly and criminally liable for their
  actions.

21
Fresh pursuit conditions

• Immediate pursuit of a criminal suspect into
  another jurisdiction after the officer has
  attempted to arrest the suspect in the officers
  jurisdiction.
• Early common law restricted this to felony cases.
• Today, this generally applies to all pursuits.
• All the following conditions however must be met
• the officer has the authority to arrest in the
  first place,
• the suspect is fleeing to escape or avoid
  capture, and
• the pursuit must begin promptly and be maintained
  continuously.
• There can be no side trips or diversions
• These pursuits can go outside the state
  boundaries of the officer
• some states then require extradition
• other states allow pursuing officer to take the
  suspect back

22
Use of Force to affect an arrest

• Prior to 1985, Common Law allowed an officer to
  use deadly force to affect any felony arrest.
• Generally speaking, officers may use whatever
  force is necessary to make the arrest relative to
  the offense that has been committed. The primary
  purpose for using force it to protect the public
  and the police officer.

23
Use of force cont.

• Tennessee v. Garner (1985) a police officer may
  not seize an unarmed, non-dangerous suspect by
  shooting him dead Where the officer has probable
  cause to believe that the suspect poses a threat
  of serious physical harm, either to the officer
  or to others, it is not constitutionally
  unreasonable to prevent escape by using deadly
  force. Thus, if the suspect threatens the officer
  with a weapon or there is probable cause to
  believe that he has committed a crime involving
  the infliction or threatened infliction of
  serious physical harm, deadly force may be used
  if necessary to prevent escape, and if, where
  feasible, some warning has been given. Tennessee
  v. Garner (1984).ppt

24
Use of force cont.

• PC 9.51 Arrest and search - (See handout)
• Model Penal Code provisions
• The use of deadly force is not justifiable
  unless
• The arrest if for a felony and
• The person affecting the arrest is authorized to
  act as a peace officer or is assisting a person
  whom he believes to be authorized to act as a
  peace officer and
• The actor believes that the force employed
  creates no substantial risk of injury to innocent
  persons and
• The actor believes that
• The crime for which the arrest is made involved
  conduct including the use or threatened use of
  deadly force or
• There is substantial risk that the person to be
  arrested will cause death or serious bodily
  injury if his apprehension is delayed.
• Generally speaking, serious consequences are
  attached to the illegal or improper
  implementation of deadly force.

25
Misdemeanor arrest and the use of force

• State v. Wall (1982) suggest it is never
  justifiable to use deadly force to affect a
  misdemeanor arrest.
• The rule is that it is better that a
  misdemeanant escape rather than a human life be
  taken.
• In fact a peace officer who used deadly force to
  affect a misdemeanor arrest may be guilty of
  murder or manslaughter.
• State v. Williams (1959) indicates that the
  officer has no duty to back down in the face of
  resistance when making an arrest. In fact, they
  have a duty to be the aggressor and complete the
  arrest using whatever reasonable force necessary,
  even deadly force if it is necessary for
  self-defense.

26
Resisting Arrest

• Resisting requires active opposition by the
  participant. Mere flight, evasion or avoidance
  does not constitute resistance.
• Verbal objection to an arrest does not constitute
  resistance
• The arrest must be lawful for a person to be
  guilty of resisting arrest.
• The person making the arrest must therefore
• Identify him/herself as a peace officer, and
• Explain the reason for the arrest.
• It is also legal to resist if the person is
  placed in a situation where they fear unjustified
  serious bodily injury or death. N.C. v. McGowan
  (1956)
• N.J. v. Mulvihill (1970) places two restrictions
  on this legal resistance
• He cannot use greater force than is being used
  against him and
• If he thinks the illegal force against him would
  cease if he stops resisting, he must stop
  resisting.

27
Entry into dwellings

• Generally speaking, officers are not allowed to
  enter a persons home to affect an arrest without
  a warrant unless there are exigent circumstances.
• Even with a warrant, there are distinctions made
  related to whether the house belongs to the
  suspect or someone else.

28
Entry into the Suspects Home

• Payton v. N.Y (1980) stated that baring exigent
  circumstances or the consent of a person with
  authority to give consent, an officer must have
  an arrest warrant to enter a suspects home to
  arrest him/her.
• In addition, U.S. v. Magluta (11th Cir. 1995)
  found that the officer serving the warrant must
  be able to establish a reasonable belief that
  the suspect is in the dwelling before he can
  forcibly enter the residence.

29
Entry into a 3rd Persons home

• Steagald v U.S. (1981) held that the police
  generally do not have the authority to enter a
  3rd parties home to make an arrest, solely based
  on the presence of an arrest warrant.
• This would allow officers to go on fishing
  expeditions through friends and acquaintances
  homes looking for the suspect. (you would have to
  get a search warrant as well)
• Some exceptions to this rule include
• Knowingly harboring a fugitive, or
• Having common access to a residence, even out of
  marriage.

30
Exigent Circumstances

• Assessment of the risk of danger, officers or 3rd
  parties,
• The gravity of the crime
• The likelihood that the suspect is armed
• Likelihood that evidence is destroyed
• Likelihood that the suspect will otherwise escape
• At least one and preferably several of these
  factors would be present to justify entry.

31
Exigent circumstances cont.

• Hot pursuit Warden v. Hayden (1967).ppt or, U.S.
  v. Santana (1976)
• Suspect was standing in doorway then retreated
  into home.
• allows entry into private homes from public
  places when there is probable cause to arrest the
  person if they are in a public place.
• U.S. v. Scheffer (1972).ppt officers are not
  allowed to create situations that would
  constitute exigent circumstances.

32
Forced entry to make and arrest
What constitutes illegal entry? Sabbath v. U.S.
(1968) Does not matter how police make entry,
still illegal.

• Generally speaking, before entry can be forced
  the following procedures should be followed
• Knock on the door
• Announcement of your authority and purpose to
  enter
• The demand for admittance
• Forcible entry
• Miller v. U.S. (1958) No announcement, illegal
  arrest
• U.S. v. James (1976) silence or refusal of entry
  allows officer to use force to enter.
• Demand met with silence can only assume refusal
  after a reasonable amount of time has passed.
• When drug cases are involved, the amount of time
  that constitutes reasonableness is reduced
  considerably.

33
When is announcement of entry not required?

• If the suspect already knows the purpose of the
  officers presence
• Officers safety is in peril. Wilson v. Arkansas
  (1995)
• When the delay would allow the suspect to escape.
• If a prisoner escapes and goes to his residence.
  Announcement was considered a senseless
  ceremony
• When the announcement would allow the suspect to
  destroy evidence. Ker v. California (1963)

34
Disposition of Arrested Persons

• Booking The administrative process of officially
  recording the arrest of a person.
• Name of arrestee
• Name of officers involved
• Time, place, and circumstances of the arrest
• Also can include
• Body cavity searches
• Fingerprinting and photographing
• Lineup and identification

35
Initial Appearance

• Verification of suspects identity
• Advise suspect of charges
• Advise suspect of rights
• Right to preliminary hearing
• Right to counsel
• Right to remain silent
• Prevent secret interrogations
• Give the suspect the opportunity to post bail
• Give the suspect the opportunity to plea guilty
• Provide neutral determination of the presence of
  probable cause

Occurs within 48 hours of arrest
36
Safety of Officer and Welfare of the Person
Arrested

• Washington v. Chrisman (1982) constant
  observation of an arrested person is not an undue
  invasion of privacy.
• The officer has a duty to protect the welfare of
  the prisoner until they can be delivered to a
  magistrate
• Confined in jail or other place
• Use of handcuffs OK considering
• Reputation or record of violence by suspect
• Time of day or night
• Presence of other officers
• Number of persons in custody
• Duration of the detention.
• Officers are required to make sure medical
  attention is provided when needed by the suspect

37
Stationhouse searches

• Once a person is taken to the stationhouse for
  booking, they may be thoroughly searched.
• No requirement of probable cause
• There can be delays based on administrative
  necessities
• Purpose is protection of suspect and officers,
  both personally and of their property
• If the department has a written policy, inventory
  of vehicles that the suspects have been arrested
  out of are permissible.

38
Identification and Examination of Arrested Persons

• Officers allowed to take
• Fingerprints
• Footprints
• Photographs
• Voice samples
• Dental examinations
• Physical measurements, inspections of scars,
  tattoos, etc. even against their will
• Blood samples
• Probable cause the person was driving, and
• That the person is intoxicated
• Officer cannot demand the extraction of a bullet
  if it is detrimental to health of suspect

39
Effects of Illegal Arrest

• Generally Frisbie v. Collins (1952) An illegal
  arrest does not exclude the possibility of a
  person being tried in court and convicted of a
  crime. There is nothing in the Constitution that
  requires a court to permit a guilty person,
  rightfully convicted, to escape justice because
  he was brought to trial against his will.

40
Effects cont.

• Exclusionary Rule Brown v. Illinois (1975)
• Confessions obtained through the exploitation of
  an illegal arrest will be excluded.
• If there is no probable cause to make the arrest,
  any confessions, regardless of whether procedures
  are correct subsequently, will be excluded. ie
  Miranda
• Fruits of the crime obtained as a result of a
  search incident to an illegal arrest will be
  excluded.
• If however probable cause to arrest existed but
  it was determined that the officers made an
  illegal arrest because they should have gotten a
  warrant, and all other individual rights were
  protected, the confession may be allowed if it is
  obtained later in the investigation. NY v. Harris
  (1990)