Most people are somewhat nervous during an encounter with the police. They might not know what to say. They might not want to say or do the wrong thing. They might not know, or trust, that the police are talking to them for the reasons they said. Are they just being questioned? Or are they being arrested?
This article explains what it means to be arrested. Was there actually an arrest? Was the arrest legal? Was there probable cause? These and other questions are answered below.
Is a Police Detention an Arrest?
There is no reason why a police officer could not speak with a person under ordinary circumstances. They are allowed to ask you questions, but if a person is not comfortable answering, what are their obligations? Do they have to answer? Can they walk away?
A person is not required to answer police questions. They can decline to answer and ask to leave. If the police officer says they cannot leave, they have been detained, but they have not yet been arrested.
The police may detain a person in a public place or a private area if they have "reasonable suspicion" to believe that person has been involved in a crime. Often a person is simply questioned and then released. Granted, they are not required to answer police questions. But during this period of detention (usually less than an hour) they may look for evidence that would give them probable cause to make an arrest.
If, as a result of questioning, the police believe a suspect may be involved in a crime, they might still release them, but they could also choose to arrest them. If they choose to arrest, they must state the charges.
Who Can Make a Legal Arrest?
Police can make an arrest if they have an arrest warrant and sometimes when they do not have a warrant. In some situations, an arrest is mandatory. In general, the police may make an arrest without a warrant if they have strong suspicions that a felony crime was committed.
Sometimes a private citizen can make a warrantless arrest. When and how that is allowed varies by state statute. For example, Minnesota's statute allows a private person to arrest another:
- "For a public offense committed or attempted in the arresting person's presence;
- When the person arrested has committed a felony, although not in the arresting person's presence; or
- When a felony has in fact been committed, and the arresting person has reasonable cause for believing the person arrested to have committed it."
What is an Arrest Warrant?
An arrest warrant is a court order authorizing law enforcement to arrest someone.
What is Probable Cause for an Arrest?
The Fourth Amendment of the U.S. Constitution requires that the police have "probable cause" before they detain someone or search and seize their property. It restricts the government from unlawful search and seizure. More specifically, the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This phrase within the U.S. Constitution is vague, but over time and as a result of court cases, it has been more clearly defined.
Probable cause is based on factual evidence, not suspicions or hunches. This evidence can be gathered from:
- Observation alone (sight, smell, sound): This includes not only observed evidence of a crime but also observations of a familiar pattern of criminal activity, such as when an officer sees a car circling around an area repeatedly or when someone is flashing their headlights
- Witnesses, victims, and informants
- Police expertise, training, and experience (for example, 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, as an arresting officer may know of evidence collected by colleagues or other agencies
- Circumstantial evidence that indirectly indicates that a crime has occurred, such as a broken window
- Reasonable inferences that can be drawn from the available evidence
Who Decides Whether an Officer Had Probable Cause?
Probable cause is an extremely important element of police procedure. When the police ask a judge for an arrest warrant, the judge first determines whether their evidence is sufficient to give probable cause that a crime has been committed.
If not, the arrest warrant can be denied. If so, an arrest warrant will be issued and the police can take the suspect into custody and arrest them.
In the case of a warrantless arrest, a judge, justice of the peace, or a bail commissioner will rule on whether there was probable cause for the arrest. An officer could have a reasonable good faith belief that they had probable cause, but a judge could later determine that there was, in fact, no probable cause.
The arrest can then be attacked later for lacking probable cause, and as a result, the suspect could be released from custody.
How Much Evidence is Needed to Establish Probable Cause?
Determining whether evidence meets the standard of probable cause can be more of an art than a science. It may best be understood by what it is not. Probable cause is something less than a preponderance of the evidence, a standard used to prove certain facts in court, but it is more than a reasonable suspicion based on objective facts. There must be some evidence to support a determination of probable cause; it cannot be based upon a hunch.
The standard of probable cause allows judges to balance the responsibilities of the police to protect citizens from crime against the rights of citizens to not be harassed by the police.
A judge determines whether probable cause exists by:
- Examining the facts presented and any reasonable inferences that can be drawn from those facts
- Based upon the totality of the circumstances
- Under the auspices of common sense
The sum of this must amount to a "fair probability" that a crime was committed and that the arrested person is the one that committed the crime.
Was the Arrest Legal? Get Help From an Attorney Today
If you or someone you know has been arrested, time is of the essence. You may be able to fight the constitutionality of your arrest on the grounds of probable cause. Talk to an experienced criminal defense attorney in your area.