Arrests and Probable Cause

Learn what constitutes an arrest, and what the police have to know before they can make an arrest.

What Is an Arrest?

An arrest occurs when police officers take a suspect into custody. An arrest is complete as soon as the suspect is no longer free to walk away from the arresting police officer, a moment that often comes well before the suspect actually arrives at a jail.

The U.S. Constitution’s Fourth Amend­ment authorizes an arrest only if the police have probable cause to believe that a crime was committed and that the suspect did it. This probable cause requirement restrains the power of the police to deprive people of liberty. It prevents the type of random roundup of “undesirables” that sometimes occurs in other countries.

Legislatures and courts have picked up where the Fourth Amendment leaves off, developing rules about how, when, and why people can be arrested. What Constitutes an Arrest?

An arrest requires taking someone into custody, against that person's will, in order to prosecute or interrogate. It involves a physical application of force, or submission to an officer's show of force. In sum, the arrestee must not be free to leave. Whether the act by the police is termed an arrest under state law is not relevant.

hen deciding whether someone has been arrested, courts apply the "reasonable man" standard. This means asking whether a reasonable person, in the shoes of the defendant, would have concluded that he or she was not free to leave.

No arrest happens when an officer approaches someone in a public place and asks if the person is willing to answer questions, as long as the officer does not restrain the person. Examples of Arrests and Nonarrests

An arrest occurs when a police officer takes a person into custody. However, arrest is not synonymous with being taken to jail. The following common situations illustrate the scope of an arrest:

Example A driver is stopped for a routine traffic violation. The driver technically is under arrest because the driver is not free to leave until the officer has written a ticket (or if it’s the driver’s lucky day, only issued a warning). But the arrest is temporary. Assuming the officer has no basis to suspect that the driver is engaged in criminal activity other than the traffic violation, the officer usually releases the driver once the driver produces identification and signs a promise to appear in court (assuming a ticket was written). Traffic stop arrests do not become part of a person’s arrest record, and do not count as arrests for the purpose of answering the question, “Have you ever been arrested?” (on a job or license application, for example).

Example A shopper in a mall is stopped by a police officer who says, “I’d like to know whether you saw the robbery that took place a few minutes ago in the jewelry store.” No arrest has taken place. People questioned by police officers are not under arrest unless the officers indicate that they are not free to leave. (For reasons of personal safety, however, the shopper should not simply walk away from the officer without the officer’s permission.) Even if the officer refuses permission, thereby placing the shopper under arrest, this arrest, like the traffic stop arrest, doesn’t count as an arrest if the shopper is allowed to leave after the questioning and is not charged with a crime.

Example A police officer yells, “Hold it right there, you’re under arrest!” to a suspect who assaulted someone on the street. The suspect flees. The suspect has not been arrested because the suspect has neither been taken into custody nor voluntarily submitted to the police officer’s authority.

Example A police officer yells, “Hold it right there, you’re under arrest!” to two suspects who assaulted someone on the street. As the officer handcuffs Suspect 1, the officer tells Suspect 2, “Stay right there and don’t move.” Suspect 2 does not move. By submitting to the police officer’s authority, Suspect 2 has been arrested, even though Suspect 2 has not physically been taken into custody.

Example A store security guard has arrested someone for shoplifting and turns the suspect over to a police officer. The police officer issues a citation instructing the suspect to appear in court on a charge of petty theft. The suspect has been arrested, but does not have to go to jail. This would count as an arrest even if the shoplifter were a minor, although many states allow minors to eventually expunge (delete) arrests from their record.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

When the Police Can Make an Arrest: Probable Cause

The Fourth Amendment makes probable cause the key term in the arrest process. The police need probable cause to make an arrest, whether they are asking a judge to issue an arrest warrant or justifying an arrest after it has been made. Some principles of probable cause are well settled:

To establish probable cause, police officers must be able to point to objective factual circumstances leading them to believe that a suspect committed a crime. A police officer can’t establish probable cause by saying something like, “I just had a hunch that the defendant was a burglar.”

Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that the facts on the ground establish probable cause. But if a judge examines that same information and disagrees, then probable cause does not exist (or did not exist, if the question is being decided after an arrest is made).

Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid as long as it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.

How Much Information = Probable Cause?

These principles leave open the most important issue concerning probable cause: How much information do police officers need to convince a judge to issue an arrest warrant or to justify a warrantless arrest? In general, probable cause requires more than a mere suspicion that a suspect committed a crime, but not as much information as would be required to prove a suspect guilty beyond a reasonable doubt.

Because it is an abstract concept, a firm definition of probable cause is impossible. The Fourth Amendment doesn’t provide a definition, so it’s up to judges to interpret the meaning of probable cause on a case-by-case basis, taking into account:

• what the judge thinks the amendment’s drafters meant by the term probable cause
• previous judges’ interpretations in similar fact situations, and
• the judge’s views about police rights vs. criminals’ rights.

Examples of Probable Cause

Judges help to define the meaning of probable cause each time they issue a warrant or decide a case in which the issue arises.

Example: Officer Furman arrives at Simpson’s Jewelry store moments after it’s been robbed. Officer Furman sees broken glass inside the jewelry store. A man claiming to be Simpson, the owner, tells the officer that a man approximately 6'5" tall and weighing over 300 pounds held up the store at gunpoint and escaped with rings and watches in a small brown paper bag. A few minutes later, less than a mile away from the jewelry store, Officer Furman pulls a car over for speeding. The driver matches the description of the robber, and on the seat next to the driver is a small brown paper bag and a couple of watches with the price tags attached. Though Officer Furman did not see the robbery itself, the driver matches the unusual physical description of the robber and has the property that Simpson said was missing. Furman has probable cause to arrest the driver.

Example: Same case. Assume that the person claiming to be Simpson, the jewelry store owner, was actually the robber’s accomplice. The accomplice gave Officer Furman a phony description and then fled after the officer drove off. The driver pulled over by the officer for speeding later is able to prove that he is the lawful owner of the watches that the officer saw on the seat. In this scenario, Officer Furman had no reason to doubt the word of the person claiming to be Simpson, and the broken glass corroborated “Simpson’s” statement that a robbery had occurred. Thus, the officer had probable cause to make the arrest, even though the information turned out to be incorrect.

Example: Officer Seesit pulls over a car and its three occupants for speeding. The officer searches the car with the driver’s consent and finds baggies of cocaine stashed behind an armrest in the back seat. All three occupants of the car say that they didn’t know that the cocaine was in the car. Seesit has probable cause to arrest the car’s occupants. In the absence of evidence demonstrating that the cocaine belonged to a specific occupant, the officer could reasonably conclude that all of them knew about and possessed the cocaine (Maryland v. Pringle, U.S. Sup. Ct. 2003).

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.