Unlawful Arrest: Your Rights and How To Challenge an Illegal Arrest

It’s natural to feel nervous during an encounter with the police. Many people are unsure what to say or concerned about doing something wrong. If you or a loved one was arrested and you believe the arrest was unlawful, legal help is available. A criminal defense attorney in your area can review the circumstances of your arrest and determine if it violated your constitutional rights.

What Makes an Arrest Legal?

For an arrest to be lawful, law enforcement must have legal authority to take you into custody. There are three primary bases that give police this authority:

• Personal observation of a crime: If an officer directly witnesses you committing a crime, they can arrest you immediately. This includes traffic violations, theft, assault, or any other criminal offense observed firsthand.
• Probable cause to believe a crime was committed: Officers can arrest without personally witnessing a crime if they have sufficient facts and circumstances to reasonably believe you committed a criminal offense. This must be based on evidence, not hunches.
• A valid arrest warrant: A judge can issue an arrest warrant when law enforcement presents evidence of probable cause that you committed a crime. The warrant authorizes any officer to take you into custody.

Each of these legal bases has specific requirements. Understanding these requirements is essential to determining whether your arrest was lawful.

Understanding Probable Cause

When law enforcement reasonably believes a person has committed a crime, they can take that person into custody. This reasonable belief is “probable cause,” and it’s a vitally important aspect of criminal law. Let’s take a closer look at what it means.

What Is Probable Cause?

Police cannot base an arrest on a hunch or a guess. A law enforcement officer must have an objectively reasonable basis for their belief based on the facts and circumstances in the criminal case.

For example, a police officer hears a report that a man in a yellow shirt just robbed a liquor store with a gun. When they arrive shortly thereafter, they spot a man in a yellow shirt running away from the scene of the crime. The officer can stop and search the man, as there is reasonable suspicion that he could be the suspect. If a search reveals a gun and a wad of cash in his pocket, the police officer has the legal authority to arrest him, given the totality of the circumstances. There is probable cause to believe the man committed the robbery.

What Evidence Can Establish Probable Cause?

Law enforcement may show probable cause using the following:

• Observation alone (sight, smell, sound): This includes not only observed evidence of a crime, but also observations of a familiar pattern of criminal activity
• Witnesses, victims, and informants: For example, if a battery victim points to the person who allegedly attacked them, an officer would have probable cause to take them into custody
• Police expertise, training, and experience: A police officer may recognize gang signs, the tools used for committing certain crimes, or movements and gestures that indicate criminal activity
• The collective knowledge of police: An arresting officer may know of evidence their colleagues or agency collected implicating a suspect
• Circumstantial evidence: This can be indirect evidence that indicates a crime may have occurred, such as a broken window
• Reasonable inferences: The police may be able to gain probable cause drawn from the available evidence

This is not an exhaustive list.

Who Decides Whether an Officer Had Probable Cause?

Probable cause is a crucial element of police procedure. When the police ask a judge for an arrest warrant, the judge must determine whether the police’s evidence is sufficient to establish probable cause that the subject of the warrant committed a crime.

In the case of a warrantless arrest, a judge, justice of the peace, or bail commissioner will subsequently rule on whether probable cause existed for the arrest. An officer may have acted with a reasonable good-faith belief that they had probable cause, but a judge could later determine they were incorrect.

The judge will deny the warrant if they do not find probable cause. Otherwise, the warrant will be issued, and the police may take the suspect into custody and arrest them. An arrestee can challenge an arrest on the grounds of lack of probable cause. If they prevail, the court may release the suspect from custody.

Arrest Warrants

An arrest warrant is a court order authorizing law enforcement to arrest someone. Law enforcement must obtain a warrant from a neutral judge or magistrate. The warrant must be based on a showing of probable cause.

Many arrests do not occur from freshly committed crimes or hot pursuits, but from police investigations. During these investigations, the Fourth Amendment protects people against unreasonable searches or seizures by law enforcement. This requires officers to obtain a warrant that specifies, under oath, where they may search and the persons or things they may seize. Under the Fourth Amendment, a person has a reasonable expectation of privacy in their home.

If the police have probable cause to believe a person committed a crime and that evidence will be in a particular location, they can ask a judge for a search warrant. To bring someone in for questioning about a crime they may have committed, the police can ask for an arrest warrant to take the suspect into legal custody. They must have probable cause to support a valid warrant being issued.

An arrest warrant typically:

• Identifies the crimes committed and the corresponding statutes
• Identifies the individual suspected of committing the crimes
• Specifies the locations and dates of the offenses
• Identifies any victims of the criminal activity
• Commands any police officer to take that person into custody

The arrest warrant authorizes any police officer or law enforcement agency to arrest the suspect. It does not have to be the officers who are investigating the crime. This information is usually spread statewide (or nationwide) through police databases. When an officer checks the person’s identification and arrest record, they will learn about the warrant and can take them into custody.

For example, under North Carolina criminal law, an officer can arrest a defendant with an outstanding warrant, even if the warrant isn’t in their possession. The officer must inform the person about the outstanding warrant and serve it upon them as soon as possible.

Detention vs. Arrest

Police detention is not necessarily an arrest. If the police detain you, they may gather enough evidence during the detention to arrest you.

What Is the Difference Between Detention and Arrest?

In general, police detention refers to police stopping a person and informing them that they cannot leave. A stop is not necessarily an arrest, but can lead to one.

The main difference between detention and arrest is based on the amount of evidence and the level of certainty law enforcement has that you’ve committed a violation or broken a law:

• Detention is a temporary stop based on reasonable suspicion, such as being pulled over for speeding
• An arrest means someone is taken into custody based on probable cause, such as spotting illegal drugs in plain view during a traffic stop

Different constitutional protections apply at each stage.

When Can Police Stop or Detain You?

The police may detain a person in a public or private area if they have reasonable suspicion that the person has been involved in a crime. At that point, law enforcement has not arrested them. Nothing prevents a police officer from speaking to a person under ordinary circumstances. The law allows police to ask questions.

In general, you are not required to answer questions from the police. You can decline to answer questions and ask, “Am I free to leave?” If they say you can’t go, you’re being detained

Detention only requires reasonable suspicion, a lower standard than probable cause. In many cases, police question someone and release them without making an arrest.

How Detention Can Lead To Arrest

During the detention, the police may look for evidence that would give them probable cause to make an arrest. For example, if during questioning the officer observes evidence of a crime or receives information that elevates reasonable suspicion to probable cause, the encounter can escalate from detention to arrest.

If police decide to arrest you, they must inform you of the charges. If they continue to question you while under arrest without reading your Miranda rights, any statements you make may be excluded from trial.

Your Constitutional Rights During an Arrest

When you have been detained or arrested by the police, the U.S. Constitution grants you certain fundamental rights. Commonly known as “Miranda rights,” these rights apply whenever you are being questioned by law enforcement. When police arrest someone, they may read a formal Miranda warning to the suspect. This is a legal notification to the police and the suspect that their rights are in effect.

Several of the Constitution’s Amendments offer you protections. Knowing which ones they are and what they entail can make sure you’re aware of your rights.

Fourth Amendment

The Fourth Amendment requires a warrant whenever police arrest individuals or search their property. Case law provides exceptions, which evidence must fall under to be admissible in court. For instance, a search incident to arrest (an inventory search) may yield admissible evidence.

Fifth Amendment

The Fifth Amendment guarantees your right against self-incrimination. In other words, you are not required to provide evidence against yourself. You can refuse to answer any questions beyond your name and basic identification.

The Supreme Court has ruled that subjects must state this right before it applies. You cannot simply refuse to talk.

Sixth Amendment

The Sixth Amendment grants suspects the right to counsel. In Gideon v. Wainwright (1963), the Supreme Court ruled that indigent suspects could be appointed an attorney at no cost. All suspects have the right to retain an attorney and to have them present at critical stages of the court process. This includes the arraignment and bond hearing, custodial interrogation, and all pretrial hearings.

Miranda Rights

Police do not have to read suspects their Miranda warning when they are arrested. Despite what TV and movies lead us to believe, it isn’t a “get out of jail free” card if police fail to read you your rights when you’re arrested. Although your Constitutional rights attach whenever you are in police custody, police only have to let you know about them when they are interrogating you about the crime itself.

Anything you say to the police at any time can be used against you. This includes statements you make during detention prior to arrest. For instance, if a suspect runs out of a building shouting, “I killed my wife!” but later denies it, both statements are admissible. Keep it simple by clearly stating that you choose to say nothing in the absence of your attorney.

Common Reasons Arrests Are Found Unlawful

Although people often use “false arrest” and “wrongful arrest” interchangeably, they can have different legal meanings. False arrest, also referred to as false imprisonment, is a civil tort claim that can be brought against anyone who unlawfully detains or restrains you without legal authority. This includes private citizens, security guards, or law enforcement.

A wrongful arrest typically refers to an unlawful arrest by law enforcement that may involve constitutional violations or police misconduct. Some common reasons an arrest may be unlawful include:

• Lack of probable cause: Probable cause is a reasonable belief supported by articulable facts that an individual may commit or has committed a crime. Law enforcement officers cannot make arrests based on hunches or bias.
• Abuse of authority: Arrests based on racial profiling, social bias, or other improper reasons may lead to unlawful arrests. This increases the likelihood that the charges will be dismissed.
• Civil rights violations: These are often coupled with allegations of police brutality or other violations. Police may use unlawful methods to effect an arrest if the suspect resists or attempts to flee.
• Lack of a valid arrest warrant: If the warrant itself is facially invalid, the arrest is also invalid. A “good faith” exception may apply if the officer could not reasonably have known the warrant was invalid.

In some jurisdictions, security guards may arrest individuals for misdemeanor offenses committed in their presence. This is commonly seen in retail establishments to prevent shoplifting and other petty thefts. Shopkeepers may detain shoplifters for a reasonable amount of time, but can face charges of false imprisonment if they keep the suspect for too long.

How To Challenge an Unlawful Arrest

If you believe your arrest was unlawful, it’s a good idea to speak with a criminal defense attorney. The primary way to challenge a legal arrest is through court action. You should never try to physically resist an arrest. Resisting arrest is a separate charge, and you can still be charged even if the original arrest is invalid.

To successfully challenge an unlawful arrest, you should take these steps:

• Stay calm and follow police instructions: Do not argue with the officer or insist this is a false arrest. The place to fight this is in a courtroom.
• Give your name and basic identifying information: This is required by law. Police can hold you for 24 hours if they cannot identify you, so the sooner they know who you are, the faster you may be released.
• Immediately invoke your 5th Amendment right to remain silent and your 6th Amendment right to an attorney. Once you do this, the police cannot ask you any more questions. When you invoke your right to remain silent, you cannot say anything. If you do, the police can assume you have waived your right to remain silent.
• Write a detailed account of the arrest: Try to note the date and time, the location, and the names and badge numbers of the arresting officers. You should receive a copy of the arrest report, but your attorney may need to request it.
• Get contact information from witnesses: Without witnesses, it’ll be your word against the arresting officer’s. Having others support your claim can be a tremendous help.

Your attorney will use this information to file a Motion to Suppress Evidence, the first step in challenging your arrest. Depending on your jurisdiction, your lawyer may take additional legal actions and steps to challenge the actions that led to your arrest.

Your legal counsel may pursue a claim for police misconduct if there is evidence that the officers violated your civil rights or relied on an invalid warrant. What happens after your arrest depends on the exact nature of the wrongful arrest and the details of the violation.

What Happens if Your Arrest Is Deemed Unlawful?

The best outcome for a wrongful arrest is dismissal of the case and expungement of your record. This is not always the case. An improper arrest may result in evidence being suppressed, but you could still remain in custody if there is sufficient evidence for trial. Some of the possible outcomes over an allegedly unlawful arrest include:

• Dismissal: Your case could be dismissed. Prosecutors have discretion to decline to file a case if they believe the evidence is too weak or if other factors could lead to you being found not guilty. They may do so with a request that it be dismissed “without prejudice,” meaning it could be brought later if more evidence is found.
• Suppression of evidence: Any evidence obtained under an invalid warrant may be inadmissible in court. If the evidence was relevant to your case, this suppression could affect the prosecutor’s ability to prove guilt.
• Civil rights lawsuit: If the arrest involved any police misconduct, such as police brutality or refusal of your rights, you may have grounds for a civil rights claim. Filing a civil claim against a police officer differs from an ordinary personal injury claim and may require the assistance of a civil rights attorney.
• Expungement: Expungement means the offense is removed from your record and will not appear in a background search. A wrongful arrest may qualify for an expungement if you were not found guilty in any subsequent trial.

Other outcomes are possible.

Was Your Arrest Legal? Get Help From an Attorney

You’re entitled to legal representation as soon as you’re arrested, and trying to fight criminal charges alone is not the best approach. An experienced criminal defense attorney can review your case, explain your options, and guide you through the legal process. Their legal advice is invaluable when fighting criminal charges that may have stemmed from an unlawful arrest.