Arrest

SIGNIFICANCE: The main process through which people enter the criminal justice system, arrests may be made by law-enforcement officers or private citizens who take other persons into custody in the manner authorized by law.

The function of the administration of justice in the United States is to control crime, a process performed by agents and agencies of government with assigned jobs and territorial jurisdiction. The U.S. Constitution requires that every person be afforded due process of law through a program of judicial review that preserves the dignity of individuals and guards against the misuse of governmental power. Police officers have the basic obligation of apprehending criminals, and they share a role with prosecutors in investigating crime. The work of the police and prosecutors is reviewed by officers of the court, who judicially review the circumstances of arrests, the legality of evidence-gathering techniques, and the substance and form of the accusatory pleading.

When a crime is committed, an investigation begins to focus on those suspected of involvement. If persons are caught in the act of committing crimes or if an accumulation of evidence leads the police to believe that probable cause exists that persons have been involved, they seek an arrest warrant and arrest, book, and detain (incarcerate) the suspects. Safeguards built into the Constitution guard the rights of accused persons throughout the judicial process. Administration of justice procedures must ensure these rights at each step of adjudication. Arrest does not mean guilt; a person is presumed innocent until proven guilty through a confession of guilt or a decision by a judge or jury based on the preponderance of evidence.

Types of Laws

A crime is an act committed or omitted in violation of a law forbidding or commanding it and punishable, upon conviction, by death, imprisonment, fine, removal from office, or disqualification from holding any office of honor, trust, or profit. Crimes are divided into three groups: felonies, misdemeanors, and infractions. To guide police officers in the use of proper arrest techniques, the laws of each state specifically designate the more serious crimes as felonies (for example, murder, rape, assault, and fraud). Crimes not classified as felonies are either misdemeanors, which are punishable by imprisonment or fine (or both), or infractions, which are minor offenses not punishable by imprisonment. Law in the United States is wholly statutory—no act is unlawful unless at the time of its commission a valid written law (statute or ordinance) is in force that defines such an act as a crime and sets a penalty for its commission or omission.

Civil (tort) law deals with noncriminal offenses that are handled by civil rather than criminal courts. Civil offenses are not considered to be offenses against the state or the general welfare of society at large, even though they may cause suffering, harm, or injury to a person or persons. Therefore, the civil courts do not defend the interests of society but rather function as arbitrators between particular individuals. Car accident cases and some child-protection cases are examples of civil court matters. Criminal law, by contrast, imposes punishments on persons on behalf of the state for acts deemed harmful to social interests. Some acts end up in both civil and criminal courts. For example, rape violates criminal law and constitutes a wrong done to an individual. A civil court can award damages (usually monetary) for injury, and criminal courts can impose punishments (such as prison or probation) for the same act.

Arrest Statutes and Agencies

An arrest is the process of taking an accused person into physical custody through booking and detention procedures. The prevention, detection, and suppression of crime; the arrest and prosecution of persons charged with offenses; and the imprisonment, supervision, and rehabilitation of convicted offenders are major concerns faced by federal, state, and local government. These public safety responsibilities are assigned to six primary functional areas within the criminal justice system: police protection, prosecution, criminal court systems, probation services, prisons and other institutions, and parole supervision.

Each state has its own statutes delegating the power of arrest within its jurisdiction, with some variance in peripheral areas but with basic harmony in core areas. California’s Penal Code clearly and concisely delineates the rights and limitations in this important area of criminal justice and is generally illustrative of the law of arrest in other states.

Police officers, prosecutors, court personnel, and other agents of criminal justice, along with statute and case law, provide the raw material for law enforcement in the United States. Basic procedures are established by the separation-of-powers doctrine, which compartmentalizes the duties of the executive, legislative, and judicial branches of government. Other aspects of this compartmentalization are the dual system of federal and state courts and federalism.

The police, prosecutors, and court magistrates form the main arresting team. The major role of the police is a dual one: law enforcement and the maintenance of order. Police departments are divided into two main groups: patrol and investigation. Part of the work of the police consists in arresting persons suspected of breaking laws. Prosecutors play the key role in law enforcement in the United States. Prosecutors decide whether to prosecute, to accept a plea of guilty to a lesser charge, or to drop a case for lack of evidence. Crime detection and the arrest of offenders by the police can be upgraded or downgraded by prosecutors and their staff.

The authority of prosecutors to exercise discretion in the performance of their duties is traditionally recognized, whereas the authority of the police to use discretion exists but has been questioned. The public acceptance of prosecutors as decision makers in criminal justice probably derives from the general belief that they are ordinarily better educated than police officers, are more conscious of public response to their decisions, inasmuch as they are elected officials directly responsible to the voters, and have broader perspectives on the allocation of available resources to achieve public order and safety.

Arrest Procedures

All modern police units offer training programs in the prompt recognition of suspicious places, people, and circumstances. If alleged perpetrators are not arrested at the time of criminal acts, police forces operate through established procedures to reconstruct criminal incidents and investigate the crimes. This involves working with victims to single out the persons legally responsible for contributing to the crimes. Generally, prior to an arrest, a judge issues a warrant. Once an arrest occurs, the incident is open to review by a judicial officer (judge), before whom the police are legally required to arraign prisoners promptly.

Suspects can be questioned by investigators without being arrested. In this case, suspects are free to discontinue the questioning and leave. Once the officers investigating a crime have enough physical or circumstantial evidence on a particular suspect and they or the prosecutor begin to question the suspect, questioning is no longer neutral. In Miranda v. Arizona (1966), the U.S. Supreme Court stated that an investigation is no longer neutral when “custodial interrogation” takes place—that is, when “questioning initiated by law-enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way” occurs. This transpires when suspects are no longer free to leave. At that point, suspects need the protection of legal counsel, friends, or relatives.

In most cases, a warrant for arrest must be obtained from a court officer, usually a magistrate (the judge or justice of a trial court, including inferior courts, but sometimes restricted to “courts of record”) who reviews the circumstances of the arrest prior to any summary action and either approves or disapproves the proposed arrest. A warrant of arrest may be issued when a complaint is filed with a magistrate and the magistrate, after a hearing, independently and on the basis of evidence is satisfied that the offense complained of has been committed, that the information given is from a reliable and credible source, and that there are reasonable grounds to believe that the person to be arrested has committed the specific offense.

An arrest is made by arresting officers or other persons, who are supposed to give adequate notice to the persons to be arrested. Such notice should include the intention to arrest, the cause of the arrest, and the authority to make it, except when the arresting persons have reasonable cause to believe that the suspects are engaged in the criminal acts or they must pursue the suspects immediately after the commission of the crimes. Adequate notice also includes informing persons to be arrested of the charges against them whenever they request such information. If the offense for which an arrest is being made is a felony, the arrest may be made on any day and at any time of the day or night. If the offense is a misdemeanor, the arrest cannot be made at night unless it takes place under the direction of a magistrate and is authorized on the warrant or unless the offense is committed in the presence of the arresting officer.

Private citizens may arrest others for public offenses committed or attempted in their presence, they may arrest a felon although the felony was not committed in their presence, and they may arrest a person when a felony has been committed and they have reasonable cause to believe that the person to be arrested has committed it. However, if a crime has not been committed, such arresting persons are subject to legal action for false arrest.

Any person making an arrest may take from the arrested person all offensive weapons and deliver them to the arraigning magistrate. Breaking and entering a building to make an arrest may be necessary but is under the “reasonable and prudent man” purview (the test of whether a just, fair, sensible man with ordinary wisdom, carefulness, and sound judgment would do the same under similar circumstances). As a reasonable and prudent person, an officer acting in good faith may omit the demand for entrance and explanation of purpose if the delay would permit the destruction of evidence or its hiding, if the officer is threatened with attack by the person to be arrested, or if delay may allow the suspect to escape. Caution is necessary whenever regular procedures are not used during an arrest, because any incriminating evidence discovered may be excluded from evidence at trial if the arrest is ruled unlawful.

Booking and Detention

In most jurisdictions the rules of police procedure require that peace officers bring arrested persons to a central point (usually a city or county jail) in order to search them, record the details of arrest (booking), and incarcerate them. The search must be conducted under the supervision of the law-enforcement officer assigned to the booking office, who is usually a superior officer, and involves a thorough bodily examination, including the removal of clothing and the possible examination of body crevices such as mouth, underarms, and anus. Male officers search men and female officers search women. A record is made of all evidence taken from prisoners and the evidence itself is appropriately marked and safeguarded. Receipts are prepared of all articles of value taken from prisoners, and copies of these receipts are delivered to the prisoners by the booking officer at the time of booking.

Booking procedures may vary slightly across the country, but certain rules are in general use by all police forces. The specific laws violated must be established and entered in the official arrest records. These records must include the names of victims, the times and places of the crimes charged and of the arrests, enough of the circumstances of the case to establish probable cause for the arrests, and the essential elements of the crimes charged. Prisoners’ fingerprints and photographs must be taken. When prisoners’ identities are established, checks are made with the records division to determine if they have outstanding warrants for other crimes and to establish if they have past criminal records.

The arresting officers inform prisoners of their right to remain silent, warning them that anything they say is likely to be used in court against them, and inform them of their right to speak to an attorney prior to making any statements. This information is entered in the arrest records. Prisoners are informed of the approximate time and date of arraignment (a court appearance at which they are informed of the charges against them and they enter a plea), the name of the court and its location, the law about bail, and the rules of the detention jail. Prisoners are then placed in cells, permitted release on bail (if applicable), sent to a hospital (if required), or released as otherwise provided by law.

Suspect Rights

Prosecutors in California recommend that the police use a simple and uniform statement during the arrest process to warn prisoners of their rights when they face custodial interrogation, so that officers can testify on the witness stand about the advice they gave to arrested persons. In California arrested persons have the right (except where physically impossible) to make at least two telephone calls from the booking office during the period extending from immediately after booking to not more than three hours after arrest. However, the number of calls and the time frame vary from state to state. These calls are made at prisoners’ expense and in the presence of a public officer or employee. Any public officer or employee who deprives an arrested person of the right to such communications is guilty of a misdemeanor.

After they are arrested, prisoners or their relatives may request to see an attorney entitled to practice in the courts of record. Any responsible officer who willfully refuses or neglects to allow such an attorney to visit a prisoner is guilty of a misdemeanor, and any responsible officer who refuses to allow an attorney to visit the prisoner when proper application is made is liable for a monetary fine.

Peace officers in California may release from custody prisoners who are arrested without a warrant if they are satisfied that no grounds for making a criminal complaint exist. A record of such arrests must note that the prisoners have been released and that their arrests have been deemed to be detentions. Prisoners arrested without a warrant may also be released from custody if the offenses with which they are charged are not considered a threat to society or its members. If arrested persons are charged with misdemeanors only and have signed an agreement to appear in court or before a magistrate at a designated place and time, they may also be released.

When prisoners are not subject to release in accordance with an established schedule of bail or they cannot post bail, they must be taken without unnecessary delay to the nearest or most accessible magistrate in the county in which the offense is triable if they are in a condition to make a court appearance—that is, if they are not drunk, unconscious, ill, or mentally incompetent. The stricture against unnecessary delay stipulates a period of no longer than two days after the arrest, excluding Sundays and holidays. However, when the two days prescribed expire at a time when the court in which the magistrate is sitting is not in session, the time for the original arraignment of the prisoner is extended to include the duration of the next regular court session on the judicial day immediately following. The period of permissible delay usually is described as two court (working) days. Upon prisoners’ arraignment before examining magistrates and the filing of complaints, cases are placed before the court for review of police action since the time of the criminal act.

Bibliography

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Neyfakh, Leon. "The Future of Getting Arrested." Atlantic. Atlantic Monthly Group, Jan./Feb. 2015. Web. 7 Dec. 2015.

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"When Is an Arrest a Legal Arrest? FindLaw, 2 Dec. 2023, www.findlaw.com/criminal/criminal-rights/when-is-an-arrest-a-legal-arrest.html. Accessed 20 June 2024.

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