An arrest takes place when someone is taken into police custody and is no longer free to leave. Police must have a legal reason to make the arrest and are required to follow certain procedures during and after the arrest process.
Confirming the Legal Right to Arrest
An officer may only make an arrest in the following cases:
– The officer personally observed a crime being committed.
– The officer has probable cause to believe the suspect has committed a crime.
Probable cause means there is factual evidence of a crime, not just a suspicion. Probable cause can be established through first-hand observation as well as reports from witnesses, victims, and informants. Probable cause can be established from circumstantial evidence, which in contrast to direct evidence such as observation of someone committing a crime, and only implies a person committed the crime. Probable cause can also be based on police experience, having witnessed other criminals exhibit similar patterns or actions.
Probable cause needs to be established before an arrest occurs, but this probable cause is determined after the arrest by a judge. If the judge determines there was no probable cause for the arrest, evidence acquired without probable cause becomes inadmissible in court.
– The officer has an arrest warrant.
An arrest warrant is an official document, signed by a judge, which authorizes a police officer to arrest the person or people named in the warrant. To obtain a warrant, a police officer usually submits an affidavit. This affidavit, given under oath, must provide sufficient factual information to establish probable cause that the named person in the warrant committed a particular crime.
The arrest warrant identifies the name of the person suspected of committing the crime, the charged crime(s), and gives a police officer permission to arrest the person(s) identified in the warrant.
According to Hawaii Revised Statutes 803-6, “At or before the time of making an arrest, the person shall declare that the person is an officer of justice, if such is the case. If the person has a warrant the person should show it; or if the person makes the arrest without warrant in any of the cases in which it is authorized by law, the person should give the party arrested clearly to understand for what cause the person undertakes to make the arrest, and shall require the party arrested to submit and be taken to the police station or judge. This done, the arrest is complete.”
The officer does not have to restrain the arrestee with handcuffs or place them in a police car, although they may do this for their own safety.
Police also do not need to read Miranda Rights before an arrest, but this has to done before questioning takes place. Many police departments read Miranda Rights at the time of arrest so that questioning can begin right away and any information given by the suspect can be used in court.
Police are responsible for using the appropriate level of force in order to successfully control the situation. They must judge the appropriate level of force based on factors such as the level of resistance, the nature of the offense, the imminent probability of danger, the presence of a weapon or potential weapon, the size of the subject relative to the officer, the skill level of the subject relative to the officer, the sex of the officer and the subject, the age of the officer and the subject, physical limitations and the relative strength of the parties, multiple aggressors, etc.
An officer must never use unreasonable or excessive force. However, arrests usually occur in environments that are tense, uncertain, and rapidly evolving. This is why you should never argue with police or resist arrest.
Was Your Arrest Legal?
If you believe you have been falsely arrested or your rights were violated, it is always better to challenge this later with the help of an experienced attorney rather than make an officer feel threatened and escalate the situation further.
If you’re facing an arrest or have already been arrested, you may be able to challenge the basis for your arrest and any evidence derived from it. Time can be crucial in a criminal case, so reach out to criminal defense attorney David Sereno for a free consultation as soon as possible.