By Sarah Williams, J.D. | Legally reviewed by Katrina Wilson, Esq. | Last reviewed August 15, 2023
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A journey through the criminal justice system begins when a police officer says, "You're under arrest." At that point, a person is in police custody because they're not free to leave. Officers can use handcuffs or physical restraints for safety, but these are not always needed.
An arrest is the formal exercise of police restraint over a person until they are officially released. This article discusses the circumstances under which an officer can make an arrest.
If a police officer sees someone commit a crime, they can take that person into custody. For example, say an officer on street patrol witnesses a purse-snatching theft. They can immediately arrest the purse-snatcher for the criminal offense.
Personal observation arrests often occur in the context of traffic crimes. A patrol officer equipped with speed detection radar or laser equipment witnesses speeding. They can pursue the vehicle and pull over the driver.
In most states, the officer can choose whether to arrest the suspect or give a citation. If there are criminal charges, they're typically based on the personal observations of the police officer.
Some states restrict the use of arrests for serious crimes. Officers issue citations or court summons for low-level misdemeanor crimes in those states instead of bringing the suspect to the police station or sheriff's office to file charges.
When law enforcement reasonably believes a person has committed a crime, they can take that person into custody. This reasonable belief 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. The officer spots a man in a yellow shirt running near the store. The officer can stop and search the man as there is reasonable suspicion he could be the suspect.
Suppose the man has a gun and a wad of cash in his pocket. In that case, 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.
State laws vary on the circumstances leading to an arrest without a warrant. For example, in Florida, the following misdemeanors, among others, will lead to an arrest even if not committed in front of the arresting officer:
Typically, police officers have less discretion to arrest someone for misdemeanor criminal charges based on probable cause.
Most arrests do not occur from freshly committed crimes or hot pursuits. Usually, they result 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 which specifies under oath where officers can search and the persons or things they can seize.
Under the Fourth Amendment, one has a reasonable expectation of privacy in their home. Suppose the police have probable cause to believe a person committed a crime, and that enough evidence will be in a particular location. In that case, they can ask a judge for a search warrant.
For example, say the police receive confirmation from a credible source that a suspect is hiding stolen goods in the basement of their home. The officer can request a search warrant for the suspect's home that specifies the basement as the search area.
Suppose the police have probable cause to believe a person committed a crime and want to bring them in for questioning or charges. In that case, the police can ask for an arrest warrant to take the suspect into legal custody.
An arrest warrant typically:
The arrest warrant gives any police officer or law enforcement agency the authority 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 existing warrant, even if it's not in their possession. The officer must inform the person about the outstanding warrant and serve it upon them as soon as possible.
The Fifth and Sixth Amendments to the U.S. Constitution provide people with certain rights while in custody. The Fifth Amendment protects the right not to incriminate oneself. Additionally, you're entitled to due process of the law. This means that under the U.S. Constitution, you should receive notice about your case and a fair trial before your life, freedom, or property is taken away.
If the police want to interrogate a person in police custody, they must inform the person of their Miranda Rights. This includes the right to remain silent and the right to an attorney. On television, the police are often depicted reading suspects their Miranda Rights immediately upon arrest. That is not necessary and frequently differs from how things happen in the real world.
The police do not have to read the Miranda warning immediately upon arrest. They do not need to read Miranda rights when taking a suspect to jail for arraignment. They only need to read the Miranda warning when a suspect in custody is being questioned. However, anything you say voluntarily can be used against you even before you're advised. So, it is in your best interest to remain silent and request an attorney.
The Sixth Amendment covers the rights of the accused person, including:
The critical stages include interrogation, post-charge lineups, pretrial court dates, trial, sentencing, or an appeal. Defendants are entitled to legal representation even if they cannot afford to hire one. The court can appoint an attorney, commonly known as a public defender.
The prosecuting attorney files criminal charges in the district or county where the crime is alleged to have been committed. This is the lawyer representing the state (government) in the criminal charges against you. States vary on the terminology. In North Carolina, this prosecuting official is known as a district attorney (D.A.). Whereas in Florida, the prosecutor is known as a state attorney.
A prosecuting attorney can also seek an indictment from a grand jury before you're arrested. The purpose of the hearing is to determine whether there is probable cause for formal charges. After a majority of the members of a grand jury vote to indict, a prosecutor will file charges. A defendant is then arrested and brought before a judge for a first appearance, also known as an arraignment.
Talk to a criminal defense attorney about your arrest. If you have questions about the lawfulness of your arrest, fight it out in court, not on the street. Don't resist arrest; this can likely lead to additional felony charges in some states.
A lawyer can provide tailored legal advice after a case consultation, including:
Talk to an experienced criminal defense lawyer near you. Even if you do not believe you're charged with a serious offense, a criminal conviction becomes part of your criminal record and can have collateral consequences. Convictions for crimes such as domestic violence offenses can affect where you live and where you work.
Contact a qualified criminal lawyer to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.