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The 3 Legal Ways You Can Be Placed Under Arrest and How to Challenge Unlawful Arrest

A journey through the criminal justice system begins when a police officer says "You are under arrest." At that point, a person is in police custody and is no longer free to leave. Handcuffs or physical restraints may be used for officer safety but 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.

The Police Officer Personally Observes a Crime

If a police officer sees someone commit a crime, they can take that person into custody. For example, an officer on street patrol witnesses a purse-snatching theft. They can immediately arrest the purse-snatcher.

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. Some states restrict the use of arrests for low-level misdemeanor crimes. They require officers to issue citations or court summons instead of bringing the suspect to the police station or sheriff's office.

Whether the traffic stop resulted in arrest or citation, the criminal charge would be based on the personal observation of the arresting officer.

The Police Officer Has Probable Cause To Believe a Crime Has Occurred

When law enforcement has a reasonable belief that a person has committed a crime, they can take that person into custody. This reasonable belief is known as "probable cause." Police cannot base an arrest on a hunch or a guess, they must have an objectively reasonable basis for their belief, based on facts and circumstances.

For example, a police officer hears a report that a man in a yellow shirt just robbed a liquor store with a gun. He then spots a man in a yellow shirt running in the vicinity of the store. The officer can stop and search the man. If the suspect has a gun and a wad of cash in his pocket, the officer has the legal authority to arrest him. There is probable cause to believe he committed the robbery.

State law may place restrictions on probable cause arrests. Typically, police officers have less discretion to arrest someone for misdemeanor criminal charges based on probable cause.

The Police Officer Has a Warrant for The Arrest

Most arrests do not occur from freshly committed crimes or hot pursuits. Usually, they result from police investigations. Probable cause is an important factor in the gathering of evidence.

If the police have probable cause to believe a person committed a crime, and evidence can be found in a certain location, they can ask a judge for a search warrant.

If the police have probable cause to believe a person committed a crime, and they want to bring him or her in for questioning or charges, the police can ask for an arrest warrant to take the suspect into legal custody.

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 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 even 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.

There are other types of warrants that the court uses, so a warrant check is a routine part of police procedure.

Miranda Warning

The Fifth and Sixth Amendments to the U.S. Constitution provides people with certain rights when they are in custody. If the police want to interrogate a person in police custody, they must inform the person of their Miranda Rights. On television, the police are often depicted reading suspects their Miranda Rights immediately upon arrest. That is not necessary and it is frequently not 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. They only need to read the Miranda warning when a suspect in custody is about to be questioned.

Questions About Your Arrest? Talk to a Criminal Defense Attorney

If you have questions about the lawfulness of an arrest, fight it out in court, not on the street. Don't resist arrest. Do talk to an experienced criminal defense lawyer near you.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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