The Criminal Arrest Process & Your Rights

An arrest occurs when an officer takes someone into custody. But what exactly does that mean?

By , Attorney · UC Law San Francisco

The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures by the government. A police officer's arrest of an individual is a type of "seizure" that falls under this constitutional provision.

But what exactly does the term arrest mean? When does it occur? And what rules do police officers have to follow when they make arrests? The following is a brief explanation of the rights of the accused during an arrest.

What Is an Arrest?

The term arrest doesn't have a precise definition, but in general, an arrest occurs when an officer restricts a person's freedom. If a reasonable person in the suspect's shoes wouldn't feel free to leave an encounter with the police, a detention or arrest has occurred.

Detention. A detention is brief and informal. For instance, a traffic stop is often a temporary detention and not an arrest. Another common example of a detention is when an officer sees someone behaving suspiciously on the street and briefly stops the person to ask a few questions. If the officer detains someone beyond the amount of time needed to make a brief investigation, the detention might turn into an arrest.

Arrest. An arrest occurs when an officer takes someone into custody. Custody involves a restraint on a person's movement but does not necessarily require handcuffs or a trip to jail (although both are generally good indicators of an arrest). An arrest can occur much sooner—as soon as a reasonable person no longer feels free to leave.

When Can Police Make an Arrest?

To make a lawful arrest, the police need probable cause that the suspect committed a crime. Like the term arrest, no exact definition of probable cause exists. Generally, probable cause requires more than suspicion (or hunch) that a suspect committed a crime but less than proof beyond a reasonable doubt. Courts review all the facts and information surrounding the arrest when deciding if the officer's belief in the suspect's guilt was reasonable.

Let's say Eric owns a store that sells smartphones. He calls the police to report that his store was burglarized by a woman with blonde hair driving a black car. He says she stole four phones, two purple phone cases, and a pair of headphones. The police see a black car speeding away from the store. The officers pull the car over for speeding and notice that the driver has blonde hair. The officers see three phones, two purple phone cases, and a pair of headphones on the passenger seat. The officers have probable cause to arrest the driver for the burglary of Eric's store.

Do Police Need a Warrant to Arrest Someone?

The purpose of arrest warrants is to protect people from unreasonable arrests under the Fourth Amendment. Courts favor warrants because they prefer to have a neutral judicial officer assess whether the police have probable cause before an arrest. But courts recognize that obtaining a warrant is not always practical. Police officers can make an arrest without a warrant under certain circumstances.

Arrest Warrants

An arrest warrant is a court order directing officers to arrest a certain person. To obtain an arrest warrant, officers must convince a judge that probable cause (a reasonable suspicion based on facts) exists for the arrest. Typically, police provide judges with a written statement under oath—called an affidavit—that summarizes the facts supporting their belief that the suspect committed a crime. Most arrest warrants are issued after prosecutors charge a suspect with a crime.

Arrest warrants typically identify the crime for which a judge has authorized an arrest and might restrict the manner in which an officer can make an arrest. For example, an arrest warrant might state that officers can arrest a suspect "only between the hours of 8 a.m. and 6 p.m."

To enter a suspect's home, officers usually must have an arrest warrant and reason to believe that the suspect lives at the home and will be present at the time of their entry. In emergency situations, police officers can enter a residence to arrest an occupant without a warrant. Examples of emergencies include chasing a fleeing suspect into a residence (in "hot pursuit") or entering a home based on a reasonable belief that a person is in danger.

Warrantless Arrests

In some situations, an officer might need to make an arrest before obtaining a warrant. The circumstances that guide this decision often rest on the severity of the offense involved.

Felonies. When officers have probable cause to believe a felony has been committed, they can legally arrest a suspect in public without a warrant.

Misdemeanors. Because misdemeanors are less serious than felonies, the general rule is that an officer can only make a warrantless misdemeanor arrest when a suspect commits the crime in the officer's presence. Exceptions to this rule exist in some states for particularly dangerous misdemeanors, like driving under the influence and domestic violence.

Judicial review. When a person is arrested without a warrant and taken to jail, a judge must promptly (usually within 24 to 48 hours) review whether probable cause existed for the arrest. Officers submit a sworn statement with a summary of the facts supporting their probable cause determination to the judge. If the judge decides that there wasn't probable cause for the arrest, the suspect is released from jail.

Can Police Use Force to Make an Arrest?

Police officers are generally allowed to use "reasonable force" to arrest a suspect. The question of whether the amount of force used in a particular case was reasonable or excessive is intensely fact-specific.

Courts generally balance the need for force and the amount of force used during an arrest. Factors include:

  • the severity of the crime
  • whether the suspect posed a threat, and
  • whether the suspect was resisting or attempting to flee. (Graham v. Connor, 490 U.S. 386 (1989).)

    Police officers are allowed to use deadly force on a fleeing or actively resisting suspect, if the officer has probable cause to believe the suspect poses a dangerous threat to the officer or others. Officers must warn the suspect that they are about to use deadly force, if possible. (Tennessee v. Garner, 471 U.S. 1 (1985).)

    What If I Didn't Commit the Crime? Can I Resist Arrest?

    What happens if an officer's belief that a person committed a crime is wrong? Can the person physically resist arrest?

    Even if the officer is wrong or an arrest is unlawful, it's rarely ever a good idea to resist arrest. Resisting arrest is dangerous and can lead to injury and additional criminal charges. It's usually best to fight an unlawful arrest in court and not on the street. (To learn more about when a person might be entitled to resist, see Resisting Arrest When Police Use Excessive Force.)

    Ask for a Lawyer

    If you've been arrested, speak to a criminal defense attorney as soon as possible. It's especially important to ask for a lawyer before answering any questions.

    Learn more about your rights during police questioning and the criminal justice process.

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