ARREST POWERS OF THE POLICE

 

The word arrest is derived from the French arreter, ”to stop, to obtain, to hinder, to obstruct.” Arrest is ”an ordinary English word” (Lord Eilhorne in Spicer v. Holt, 1976, 71), but it has acquired multiple meanings and measures for various criminal justice agencies, particularly the police.

Arrest is legally defined as ”the apprehending or restraining of one’s person in order to be forthcoming to answer all alleged or suspected crimes” (Blackstone 1979; Warner 1983). Arrest occurs whenever the following elements are present: (1) a police officer has reason to believe that a crime has been committed (probable cause); (2) the officer intends to take the suspect into custody; and (3) the person arrested experiences loss of freedom and restriction of movement.

Legal determination of whether a given contact is an arrest can be difficult (White-bread and Slobogin 2000), which poses a practical problem for police. On the one hand, seizures accompanied by handcuffing, drawn guns, and the use of words to the effect that one is under arrest constitute arrest; on the other, brief questioning of a citizen on the street is generally not considered an arrest. Between the two extremes lie many types of police detentions, whose legal nature must be determined by the courts (Whitebread and Slobogin 2000).

The meaning attached to the term arrest is dependent on the purpose and context of its use. The definition or determination of arrest is complex because of the ramification for the person arrested and the emotional context in which it often takes place. The U.S. Supreme Court, however, has focused on freedom of movement. The Court, in the case of U.S. v. Mendenhall (1980), put forth the ”free to leave” test. Justice Potter Stuart wrote, ”A person has been seized within the meaning of the Fourth Amendment, only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he is not free to leave.” The Court, again, used the ”free to leave” test in the 1994 case of Stansbury v. California saying the key factor in determining whether an arrest had been made was the suspect’s freedom of movement.

Probable Cause

The quantum of knowledge required to justify an arrest for probable cause has been defined by the Supreme Court as ”whether at that moment [of arrest] the facts and circumstances within [the officers'] knowledge and of which they [have] reasonable trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense” (Beck v. Ohio, 379 U.S. 89, 91 [1964]). When the arresting officer’s own observations are the basis for the arrest, only indicators of criminality noted prior to the arrest or evidence obtained as a result of a legitimate patdown based on reasonable suspicion (Terry v. Ohio, 1968) may be used to develop probable cause. Failure to identify oneself, protest one’s innocence, or distance oneself from criminal suspects is, by itself, insufficient in constituting probable cause (Whitebread and Slobogin 2000).

In addition to the officer’s personal knowledge, other sources for probable cause are information from credible informants whose input is reasonably corroborated, ”respected citizens” or typical witnesses to or victims of crime, or reports from other police jurisdictions. Mere suspicion of criminal activity is not sufficient to justify arrest. Once the probable-cause requirement is met, subsequent discovery of information that casts doubt on whether probable cause existed at the time of the arrest will not invalidate the arrest (Henry v. United States 1959).

Taking a Person into Custody

An arrest can be carried out with or without an arrest warrant. An arrest warrant is an order to arrest a specific individual, signed by an impartial magistrate, if he or she feels that the proof presented by the police or the district attorney constitutes probable cause. Most magistrates require a written affidavit outlining the reasons for the arrest. Since the Fourth Amendment prohibits arbitrary arrests, the probable-cause requirement applies to both warrant and warrantless arrests.

Whenever feasible, police should obtain a warrant before making an arrest. Warrantless arrests occur mostly in ”emergency” situations and are often made by patrolmen at the scene of a crime or when citizens apprehend the suspect before the police arrive. The courts, however, have allowed the police greater latitude in making warrantless arrests in recent years. For example, the Supreme Court in 2001 upheld the warrantless arrest of a woman for a seat-belt violation (Atwater v. Largo Vista).

The police can make an arrest in a number of ways. In a ”mild arrest” an officer will announce that a person is under arrest and tap the arrestee’s shoulder to reinforce the verbal statement. The officer may use an appropriate amount of force, depending on the degree of resistance offered by the suspect, to accomplish the arrest, ranging from physical subjugation to deadly force.

The police must provide the arrestee with specific statutory and constitutional protections. The Federal Rules of Criminal Procedure require that the arrested person be taken before the nearest available magistrate without any unnecessary delay, in order to prevent possible abuses by police during interrogation. The police must read the arrestee the Miranda warning, in which the suspect is informed of his or her Fifth Amendment right against self-incrimination, his or her right to be silent, and his or her Sixth Amendment right to be represented by counsel. The police are responsible for the physical well-being of the arrestee while the person is in their custody.

Arrest and Detention

A review of arrest and other types of contact between police and citizens indicates that restraint or restriction of a citizen’s liberty does not necessarily constitute arrest. Police encounters with citizens range from those in which citizens are not compelled to respond to a stop (prompted by reasonable suspicion), detention short of arrest, and finally arrest, at which point all powers of the police may be exercised (Creamer 1980).

Some events, including placing someone in custody for mental health-related reasons, taking a minor younger than eighteen under certain conditions to a police station, or placing intoxicated persons under protective custody, that involve restrictions on one’s liberty and being taken into custody are not considered arrest (Gless 1980, 281).

A definitional difficulty is the distinction between detention and arrest. The two concepts have certain elements in common: (1) the actual or constructive apprehension of an individual at a particular point in time, and (2) the continued retention of that person for a period of time to be determined (Telling 1978, 324). The concepts differ in the degree that the police may intrude on an individual’s rights and interests as protected by the Fourth, Fifth, and Sixth Amendments. In analyzing and determining whether a detention is an arrest, the courts have considered that key factors are the purpose of the detention (e.g., fingerprinting versus questioning), its manner (police detention versus grand jury subpoenas), location (stationhouse confrontations versus seizures in the ”field” or at the border), and duration. None of these factors, by itself, is determinative; rather, the ”totality of circumstances” is the test of whether the detention amounted to an arrest (Whitebread and Slobogin 2000).

Arrest and Police Practices

Because arrest has certain legal requirements (probable cause) and creates significant legal risks for the police (e.g., being liable for false imprisonment and being subject to a civil suit for damages), and because evidence gathered in the course of wrongful arrest may not be admissible in court, officers may sometimes avoid arrest and use field interrogation techniques (or detention) to accomplish their purposes (for examples and cases, see Telling 1978, and Zander 1977). Detention for investigation describes a broad category of police activities, which range from stopping individuals on the street to holding persons for interrogation for a few minutes to a few hours (Abrams 1967, 1103-1113). Detention, for purposes such as interrogation, is often an established police practice (La Fave 1965, ch. 16; Markowitz and Summerfield 1952, 1202, 1204). One study indicated that ”though it constitutes an arrest, persons detained are not booked . . . and no record is kept of such cases” (Markowitz and Summerfield 1952, 1204; see also Telling 1978, 321; La Fave 1965, ch. 16). The legal classifications of such encounters do not arise unless the citizen is subsequently charged with an offense and the fruits of the detention—confessions—are introduced at the trial.

Behaviorally, arrest has been defined as the transporting of a suspect to a police station (Black 1971; La Fave 1965, 3-4), which is distinct from other preliminary investigative devices such as stopping and questioning, frisking, or other on-the-spot checks. The degree of interference is substantially greater when a suspect is taken to the station—whatever the purpose of the custody (for investigation or prosecution, or to realize other deterrent, rehabilitative, or punitive functions). The person being transported also views such extended custody as different from on-the-street investigation, because the consequences of being taken to the police station (an arrest record, often including photographing and fingerprinting) may be more serious.

Suspects, however, are sometimes taken to the station for investigation under circumstances that do not constitute an arrest, such as taking the suspect in without telling him that he is arrested and without recording the detention as an arrest. Or, a suspect could be ”invited” to headquarters (La Fave 1965, 302). Some police officers believe that they have not ”arrested” a suspect until he or she has formally been booked on the police blotter.

The definition of arrest and numerous court decisions (Cook 1971, 180) suggest that a critical factor in determining whether an arrest has occurred is the officer’s intent to take custody of the individual in order to charge him or her with a crime. In practice, police often arrest citizens for other purposes such as harassment or taking offenders off the street (La Fave 1965, 150), as a peacekeeping device in certain neighborhoods, as a means to enforce and legitimize their authority (Reiss 1971), and to demonstrate to superiors or to the public that they are doing their jobs (Markowitz and Summerfield 1952, 1202). In short, arrest has come to have meaning and importance as a form of immediate intervention in dealing with various exigencies that is independent of the rest of the criminal justice system.

The understanding of the person suspect is also an important legal element of arrest. Generally, an individual is not under arrest if he or she has no knowledge or reason to suspect that he or she has been arrested (Cook 1971, 177). The law recognizes that arrest is primarily a personal and subjective experience that must be felt by the individual being arrested.

The understanding of citizens concerning the nature of a confrontation with the police and their freedom to leave the place of the encounter has, therefore, often been the subject of criminal trials and legal discussions. For instance, it has been argued that a person detained for field interrogation ”will undoubtedly not consider himself under arrest, and consequently can in all honesty answer in the negative if later asked whether he has been arrested” (La Fave 1965, 347).

Research has indicated, however, that citizens are unable to distinguish between arrest and other types of police contact and often admit to having been arrested when they actually have no arrest record (Erez 1984).

Arrest Records and Recording

Empirically, it has been demonstrated that ambiguity concerning the nature of various types of contacts between citizens and police also results in multiple definitions of arrest for purposes of data recording, reporting, and statistical tabulation. ”Whether a youngster obtained an arrest record or not could be a function of different officers’ conceptions of what constituted the meaning of arrest” (according to Klein, Rosenweig, and Bates 1975, 83). These conceptions resulted in definitions that ranged from ”booking” through ”brought into the station,” ”any detention (or citation, too) at the station,” and even ”field contacts” (Klein et al. 1975, 85-86; Sherman 1980b, 471):

… in the San Jose, California department arrest was defined as charging, but in Denver … all persons brought to a station house were counted as arrested. Cincinnati was reported to make frequent use of investigative detention, in which suspects were kept in custody at a police station for up to twenty-four hours without being counted as having been arrested. In Detroit, arresting patrol officers turn everything over to detectives at the station house, where the detectives . . . released an estimated 50% of the persons arrested for major felony offenses because of weak evidence or other reasons. . . .

The Police Foundation (Sherman 1980a, 1980b) suggests that the counts of arrests in different cities may be based on as many as five different points of reference: contacting suspects on the street, transporting suspects to a police station, detaining a suspect at a police station, booking a suspect at a police station, or filing charges against a suspect with a prosecutor.

The booking process, the external or formal proof of arrest, is usually a clerical activity performed soon after the suspect has been delivered to the station. Booking results in an arrest record with a detrimental effect on the person booked. Booking constitutes a check on police abuse, because friends, counsel, and others may learn of the suspect’s arrest (La Fave 1965, 380). Important legal rights and privileges arise at booking such as the right to counsel and the right against self-incrimi-nation. Although the suspect has Fifth and Sixth Amendment protections at the time of arrest, police may delay the booking process hoping that such rights will not be demanded until booking occurs. In some cases the police may refrain from booking the suspect/arrestee in order to give him the opportunity to exculpate himself before his involvement is recorded and publicized.

Factors Influencing Police Discretion to Make an Arrest

Police are vested with wide discretionary power in their decision to arrest. Conflicting organizational goals, the dependence of police on the communities they serve, and various situational factors make full enforcement of the law neither possible nor desirable. The primary legal factor influencing police use of discretion is the seriousness of the offense (Terry 1967, 179) because the police are more likely to arrest adults and juveniles when the offense is a felony rather than a misdemeanor (see, e.g., Black 1971).

Situational factors influencing the decision to arrest include the demeanor of the suspect, because antagonistic suspects have a greater risk of being arrested (Black 1971; Reiss 1971). The presence and action of a complainant will also influence police to make an arrest. A preexisting victim-suspect relationship will reduce the likelihood of arrest (Black 1971; La Fave 1965). The way the police enter the scene is a factor, because arrest is more likely in reactive encounters than in proactive ones (Black 1971; Reiss 1971). Location of the encounter is another factor, because arrest is more likely in public places than in private ones (Black 1976).

Extralegal factors that influence the arrest decision include age (juveniles are arrested more often than adults), gender (Visher 1983) (males are arrested more often than females), race (blacks are arrested more often than whites), and socioeconomic status (Smith et al. 1984) (the poor are arrested more often than the wealthy). Many of these characteristics have been associated with the ”symbolic assailant,” who is viewed by police as being potentially violent and a great threat to the police and the public.

Another extralegal factor that influences the arrest decision is a department’s ”style” of policing. Departments that follow a ”legalistic” style will produce more arrests than those that adopt a ”service” style, while the departments that follow a ”watchman” style will produce the fewest arrests.

Judicial Review of Arrest Practices and the Police

Police arrests are inevitably subject to judicial review. When the courts rule that the officers have violated procedural law, the police feel that their professional competence is being questioned and that they are hamstrung because the guilty go free (Reiss 1971). Because the rules governing police work are in constant flux, the police continuously test the limits of their arrest authority in their daily efforts to control crime, while the courts limit this authority in order to protect individual rights and civil liberties.

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