Arrest

The fact of an arrest and the definition of an arrest are of fundamental importance. An arrest is a significant intrusion upon the liberty of the person arrested. Another reason the term is important is because, when a valid arrest is made, the right of the police to search the person arrested is automatic. It is also significant because, if an arrest is made without probable cause, the subsequent seizure of evidence may be considered a fruit of that unlawful arrest and cannot be used against the suspect in a criminal trial. The timing of an arrest is also important in civil actions for claims of false arrest.

Throughout most of the history of the United States, the law of arrest was largely unregulated by the strictures of Fourth Amendment theory. There are two primary reasons for this. First, the exclusionary rule was not adopted to regulate the activities of federal authorities until the early part of the twentieth century. Only at that point, as Telford Taylor has observed, was there a ‘‘good reason’’ to contest the validity of a search incident to arrest. Second, law enforcement has been, and still remains, primarily a state and local issue. Given that the rule excluding illegally obtained evidence from criminal trials was not made applicable to state actors until 1961, the Fourth Amendment’s requirements did not regulate the great bulk of interactions between law enforcement officials and citizens. Accordingly, the concept of an arrest developed primarily outside the body of Fourth Amendment jurisprudence.

Most of the development of the law on arrest occurred at common law. Several centuries of precedent and many commentators have produced what appear to be irreconcilable definitions of what constitutes an arrest. This is because the common law definition of arrest, like many common law principles, has proved to be very malleable and has been engrafted with factual considerations and burdened by broad generalizations. One must look beyond each factual situation and eliminate the extraneous gloss on the definition created by some authorities. Once that is done, two essential components of the common law definition of an arrest by a law enforcement officer acting pursuant to real or pretended authority emerge: (1) the officer must obtain ‘‘custody’’ of the suspect; and (2) the officer must intend to obtain that custody.

The concept of ‘‘custody’’ at common law did not require a trip to the police station, booking, or the institution of formal charges to constitute an arrest. Rather, an arrest was equated with any form of intentional detention and began at the moment of the detention. Indeed, as has been stated by Alexander in his treatise, the word arrest ‘‘is derived from the French word arreter, which means to stop, detain, to hinder, to obstruct.’’ Custody occurs when the police officer physically touches the suspect with the intent to arrest him or when the suspect submits to the officer’s show of authority.

Intent to arrest is the second element of the common law definition of arrest. An officer’s act of obtaining custody must be intentional—that is, he or she must do the acts that would otherwise constitute an arrest with the intent to arrest the suspect. There is no required manifestation of an intent to arrest beyond the acts sufficient to obtain custody. Also, an officer must not intend to do anything with the suspect beyond the intent to detain him.

The U.S. Supreme Court has generally followed the common law rule to define an arrest. However, to permit a search incident to arrest, the Court has sometimes required more, such as an intent by the police to take the person to the police station before they are allowed to search. An arrest is justified when the police have probable cause that the person arrested has committed a crime. Probable cause is a fair probability that the person has committed the crime. In measuring probable cause, a court examines the factual and practical considerations of everyday life upon which reasonable persons act.

Modern authority to arrest is governed by statute in most jurisdictions, with each jurisdiction specifying the types of offenses that permit an arrest. Arrests are generally made for the purpose of prosecuting the person for a criminal offense. However, arrests for other purposes are also sometimes permitted, including detaining material witnesses to an offense to obtain information fromthem. Police officers will also exercise their authority to arrest persons for a variety of reasons, such as separating persons involved in domestic disputes or fights, but will then exercise their discretion and let the arrestees go without charging them. These are just a few of the many reasons why a large percentage of arrests do not result in prosecution.

THOMAS K. CLANCY

References and Further Reading

• Alexander, C. The Law of Arrest. 1949 § 45
• Clancy, Thomas K., What Constitutes an ‘‘Arrest’’ within the Meaning of the Fourth Amendment? Vill. L. Rev. 48 (2003): 129
• Sherman, Lawrence W., Defining Arrest: Practical Consequences ofAgency Differences,Crim. L. Bull. 16 (1980): 376
• Taylor, Telford. Two Studies in Constitutional Interpretation. 1969

Cases and Statutes Cited

• Barnhard v. State, 587 A.2d 561 (Md. App. 1991), aff’d, 602 A.2d 701 (Md. 1992) 
• Brinegar v. United States, 338 U.S. 160, 175 (1949) 
• California v. Hodari D., 499 U.S. 621 (1991) 
• Knowles v. Iowa, 525 U.S. 113 (1998) 
• Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) 
• State v. Oquendo, 613 A.2d 1300 (Conn. 1992) 
• Terry v. Ohio, 392 U.S. 1 (1968) 
• Weeks v. United States, 232 U.S. 383 (1914) 

See also Arrest Warrants; Search (General Definition); Seizures