Cjs on Arrest

CJS ARREST SUM 6A C.J.S. Arrest Summary

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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. Correlation Table Summary Scope: This title includes the treatment of the law concerning the taking and keeping of persons in legal custody to answer civil demands or criminal charges or to prevent the commission of a crime, the nature and scope of the remedy, privilege from arrest, grounds of arrest and jurisdiction over and proceedings to obtain arrest. In addition, this title includes a discussion of warrantless searches and seizures of property incident to criminal arrests. Also discussed herein is the topic of orders of arrest in civil actions. Treated Elsewhere: Arrest for nonpayment of taxes, see C.J.S., Taxation 1036 Determination of probable cause for issuance of arrest warrant and continuing detention, see C.J.S., Criminal Law 334 to 339 Liability for illegal arrest, see C.J.S., False Imprisonment 1 et seq. Rearrest during pendency of habeas corpus, see C.J.S., Habeas Corpus 308 Search warrants, see C.J.S., Search and Seizure 128 to 216 Warrant for arrest of one for failure to pay fine, see C.J.S., Fines 15 Warrant of arrest issued to secure appearance before justice of peace, see C.J.S., Justices of the Peace 148 Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST SUM END OF DOCUMENT

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

CJS ARREST I REF 6A C.J.S. Arrest I Refs.

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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. I. Introduction Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Arrest 1, 58, 63.5(1), 68(3)

A.L.R. Index: Arrest; Search and Seizure Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST I REF END OF DOCUMENT


CJS ARREST 1 6A C.J.S. Arrest 1

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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. I. Introduction Topic Summary References Correlation Table 1. Definitions and nature, generally West's Key Number Digest West's Key Number Digest, Arrest 1, 58 An arrest is the taking, seizing, or detaining of the person of another by any act which indicates an intention to take him or her into custody and subject the person arrested to the actual control and will of the person making the arrest. An arrest is the taking, seizing, or detaining the person of another by any act which indicates an intention to take him or her into custody and subject the person arrested to the actual control and will of the person making the arrest.[1] The term "arrest" may be applied to any case where a person is taken into custody or restrained of his or her full liberty, or where detention of a person in custody is continued for even a short period of time.[2] The terms "arrest" and "apprehension" have been used interchangeably as being synonymous when employed in connection with the taking of a person into custody.[3] The term arrest has a technical meaning that is applicable in legal proceedings.[4] It implies that a person is thereby restrained of his or her liberty by some officer or agent of the law, armed with lawful process, authorizing and requiring the arrest to be made.[5] A seizure of a person, within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution, occurs when the police conduct would communicate to a reasonable person, taking into account all of the circumstances surrounding the encounter, that he or she is not at liberty to ignore the police presence and go about his or her business.[6] An arrest serves the end of bringing the person arrested personally within the custody and control of the law, for the purpose specified in, or contemplated by, the warrant or process.[7] Authority of courts. Courts of law have no inherent power to arrest citizens or place them in jail; rather, the legislature makes the law on that subject within constitutional limits.[8] The jurisdiction of courts in matters of arrest is controlled by the constitution in the first instance, and in the next by statutory authorization.[9]

[FN1] Tenn.West v. State, 221 Tenn. 178, 425 S.W.2d 602 (1968).



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[FN2] U.S.U. S. v. Willis, 248 F. Supp. 265 (D. D.C. 1965). [FN3] Ill.People v. Mirbelle, 276 Ill. App. 533, 1934 WL 2946 (1st Dist. 1934). As to the distinction between arrest and detention, see 2. [FN4] N.C.State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224 (1971). As to arrest on criminal charges, generally, see 3. [FN5] N.C.State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224 (1971). Reasonable belief as to restriction of liberty A defendant was placed under arrest when an auxiliary officer, who was in full uniform, handcuffed him, despite the fact that the auxiliary officer had no authority to make the arrest, where the defendant could have reasonably believed from the circumstances that he was being taken into custody and that his liberty was significantly restricted. N.Y.People v. Rotger, 162 Misc. 2d 459, 617 N.Y.S.2d 425 (City Crim. Ct. 1994). [FN6] 46. [FN7] N.C.State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224 (1971). [FN8] Cal.Pousson v. Superior Court In and For San Diego County, 165 Cal. App. 2d 750, 332 P.2d 766 (4th Dist. 1958). As to what constitutes an arrest on criminal charges, generally, see 46. [FN9] Cal.Pousson v. Superior Court In and For San Diego County, 165 Cal. App. 2d 750, 332 P.2d 766 (4th Dist. 1958). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 1 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. I. Introduction Topic Summary References Correlation Table 2. Arrest distinguished from detention West's Key Number Digest West's Key Number Digest, Arrest 63.5(1), 68(3) An arrest is distinguished from the stopping or detention of an individual for purposes of questioning or reasonable investigation. There is a difference between an arrest and a detention.[1] The difference between an "arrest" and a "stop" lies not in the initial restraint on movement, but rather in the length of time a person may be detained and the scope of the investigation which may follow the initial encounter.[2] A brief stop of a suspicious individual, in order to determine his or her identity or to maintain the status quo momentarily while obtaining more information, does not constitute an "arrest."[3] Thus the mere stopping or detention of an individual or a motorist for purposes of questioning or reasonable investigation is not an arrest.[4] On the other hand, whenever the detention and questioning by a police officer are more than brief and cursory there is "arrest," which must be supported by probable cause.[5] Whether an encounter should be characterized as an investigatory stop or an arrest is an objective inquiry based on the totality of the circumstances.[6] In order for a court to conclude that a suspect was "in custody," it must be evident that, under the totality of the circumstances, a reasonable person in the suspect's position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police.[7] Thus a seizure is an arrest if a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement to the degree associated with formal arrest.[8] Consideration of totality of circumstances. In order to determine whether a particular encounter constitutes a "seizure," a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.[9] For example, plainclothes police officers do not "seize" passengers on a bus when, as part of a routine drug and weapons interdiction effort, they board the bus at a rest stop and begin asking the passengers questions, notwithstanding the officers' failure to explicitly inform the passengers that they are free to refuse to cooperate, notwithstanding the fact that one officer maintains a presence at the front of the bus near the exit, where the officers do not draw or brandish their weapons, make no intimidating movements, leave the aisle free



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so that passengers can exit, and speak to the passengers one by one and in a polite, quiet voice.[10] Likewise, police conduct which consists of a brief acceleration to catch up with a pedestrian, followed by a short drive alongside him or her, does not communicate to a reasonable person an attempt to restrain the pedestrian's liberty, and thus is not a seizure implicating the Fourth Amendment of the United States Constitution.[11] CUMULATIVE SUPPLEMENT Cases: In distinguishing between temporary detentions and de facto arrests, courts inquire whether, in light of the totality of the circumstances, a reasonable person in the suspect's position would have understood her position to be tantamount to being under arrest. U.S.C.A. Const.Amend. 4. U.S. v. Chaney, 647 F.3d 401 (1st Cir. 2011). An investigatory stop becomes a de facto arrest when a reasonable person in the suspect's position would have understood, given the circumstances, that he was essentially under arrest. U.S.C.A. Const.Amend. 4. U.S. v. Mohamed, 630 F.3d 1 (1st Cir. 2010). In determining whether an investigatory stop is sufficiently intrusive to ripen into a de facto arrest, the Court of Appeals considers the amount of force used by the police, the need for such force, and the extent to which an individual's freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used. U.S. v. Vargas, 369 F.3d 98 (2d Cir. 2004). Police officers' investigatory stop of motor vehicle occupied by defendant was not transformed into a de facto arrest, as would require probable cause, by officers' conduct of encircling the vehicle, drawing their weapons, and ordering defendant and other vehicle occupant out of the vehicle and handcuffing them without first questioning them or checking their identification, where police had credible tip that at least one of the vehicle's occupants was armed and dangerous and had been involved in a shooting several minutes before the stop. U.S.C.A. Const.Amend. 4. U.S. v. Johnson, 592 F.3d 442 (3d Cir. 2010). A Terry stop based on reasonable suspicion can ripen into a de facto arrest that must be based on probable cause if it continues too long or becomes unreasonably intrusive. U.S.C.A. Const.Amend. 4. U.S. v. Bullock, 632 F.3d 1004 (7th Cir. 2011). There is no bright line that distinguishes an investigative detention from an arrest and the analysis used in determining which a detention constitutes is fact sensitive. U.S.C.A. Const.Amend. 4. State v. Donatelli, 2010 ME 43, 995 A.2d 238 (Me. 2010). [END OF SUPPLEMENT]

[FN1] Cal.People v. McCullough, 222 Cal. App. 2d 712, 35 Cal. Rptr. 591 (1st Dist. 1963). Del.State v. Bowden, 273 A.2d 481 (Del. 1971). Va.Howard v. Com., 210 Va. 674, 173 S.E.2d 829 (1970). As to temporary or investigatory detention, generally, see 37. [FN2] Ill.People v. Roberts, 96 Ill. App. 3d 930, 52 Ill. Dec. 473, 422 N.E.2d 154 (1st Dist. 1981).



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Transformation of initially consensual encounter An initially consensual encounter with law enforcement officers can be transformed into a seizure or detention within the meaning of the Fourth Amendment of the United States Constitution. U.S.Kaupp v. Texas, 538 U.S. 626, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003). [FN3] U.S.U.S. v. Bowles, 625 F.2d 526 (5th Cir. 1980). Field interrogation A mere field interrogation is constitutional, so long as the officer does not deny the individual the right to move. N.J.State v. Stovall, 170 N.J. 346, 788 A.2d 746 (2002). [FN4] Fla.State v. Padilla, 235 So. 2d 309 (Fla. Dist. Ct. App. 3d Dist. 1970). Ill.People v. Colon, 9 Ill. App. 3d 989, 293 N.E.2d 468 (1st Dist. 1973). N.J.State v. Mulvihill, 57 N.J. 151, 270 A.2d 277, 44 A.L.R.3d 1071 (1970). Or.State v. Johnson, 10 Or. App. 353, 499 P.2d 348 (1972). As to what constitutes an arrest on criminal charges, see 46. No Fourth Amendment violation A police officer does not violate the Fourth Amendment prohibition against warrantless searches and seizures merely by approaching a person in public to ask questions, if the person is willing to listen. Ill.People v. Love, 199 Ill. 2d 269, 263 Ill. Dec. 808, 769 N.E.2d 10 (2002). [FN5] Colo.People v. Roybal, 655 P.2d 410 (Colo. 1982). As to what constitutes probable cause for an arrest, generally, see 20. [FN6] Colo.People v. King, 16 P.3d 807 (Colo. 2001). [FN7] 46. [FN8] 46. [FN9] U.S.Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). Not every police pursuit "seizure" N.J.State v. Tucker, 136 N.J. 158, 642 A.2d 401 (1994). Order to freeze as "seizure"



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U.S.U.S. v. Alarcon-Gonzalez, 73 F.3d 289 (10th Cir. 1996). Request to search passenger's bags in routine bus sweep U.S.U.S. v. Gonzales, 979 F.2d 711 (9th Cir. 1992). No per se rule There is no per se rule that questioning a minor on a bus constitutes a "seizure." N.Y.Matter of Gissette Angela P., 172 A.D.2d 117, 577 N.Y.S.2d 774 (1st Dep't 1991), order aff'd, 80 N.Y.2d 863, 587 N.Y.S.2d 596, 600 N.E.2d 227 (1992). [FN10] U.S.U.S. v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). [FN11] U.S.Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 2 END OF DOCUMENT


CJS ARREST II REF 6A C.J.S. Arrest II Refs.

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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Arrest 58 to 73

West's A.L.R. Digest, Searches and Seizures 52 A.L.R. Index: Arrest; False Imprisonment and Arrest; Force and Violence; Probable Cause; Search and Seizure; Warrants; Witnesses Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST II REF END OF DOCUMENT


CJS ARREST II A REF 6A C.J.S. Arrest II A Refs.

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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Arrest A.L.R. Index: Arrest; Warrants Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST II A REF END OF DOCUMENT 58 to 60, 65



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary References Correlation Table 3. Nature and purpose, generally West's Key Number Digest West's Key Number Digest, Arrest 58 In criminal procedure, an arrest is the taking of a person into custody in order that he or she may be held to answer for, or be prevented from committing, a criminal offense. An arrest is the initial stage of a criminal prosecution, and it is intended to vindicate society's interest in having its laws obeyed.[1] An arrest is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.[2] In criminal procedure, an arrest consists in the taking into custody of another person under real or assumed authority for the purpose of holding or detaining him or her to answer a criminal charge[3] or of preventing the commission of a criminal offense.[4] Except where the common law rule of arrest still prevails,[5] the power to arrest is generally controlled by applicable constitutional and statutory provisions.[6] The Fourth Amendment of the United States Constitution protects citizens against unreasonable arrests.[7] For an arrest to be "reasonable" under the Fourth Amendment, it must serve some governmental interest which is adequate to justify imposition on the liberty of the individual.[8] CUMULATIVE SUPPLEMENT Cases: Legal obligation to appear in court does not impose any restrictions on a person's liberty and is insufficient to establish a "seizure" within the meaning of the Fourth Amendment. Sanchez Ramos v. Puerto Rico Police Dept., 392 F. Supp. 2d 167 (D.P.R. 2005). While a state is free to establish enhanced state requirements for arrest, they do not thereby become the concern of Fourth Amendment law. U.S.C.A. Const.Amend. 4. State v. Denisyuk, 191 Md. App. 408, 991 A.2d 1275 (2010). [END OF SUPPLEMENT]



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[FN1] U.S.Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Monroe v. Pape, 221 F. Supp. 635 (N.D. Ill. 1963). [FN2] U.S.Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Fourth Amendment and due process considerations The principal concern of the Fourth Amendment is with intrusions on privacy, and therefore when the infraction deals not with the initial decision to detain an accused and the curtailment of liberty that such a decision necessarily entails, but rather with the conditions of ongoing custody following such a curtailment of liberty, then the claim invokes principles of substantive due process. U.S.Gottlieb ex rel. Calabria v. Laurel Highlands School Dist., 272 F.3d 168, 159 Ed. Law Rep. 16 (3d Cir. 2001). [FN3] U.S.Murphy v. Oregon., 400 U.S. 944, 91 S. Ct. 246, 27 L. Ed. 2d 248 (1970). Fla.Gustafson v. State, 243 So. 2d 615 (Fla. Dist. Ct. App. 4th Dist. 1971), quashed in part on other grounds, 258 So. 2d 1 (Fla. 1972), judgment aff'd, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973). N.C.State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224 (1971). Or.State v. Murphy, 2 Or. App. 251, 465 P.2d 900 (1970). [FN4] Ill.City of Chicago v. Meyer, 44 Ill. 2d 1, 253 N.E.2d 400 (1969). N.C.State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224 (1971). [FN5] N.J.State v. Fair, 45 N.J. 77, 211 A.2d 359 (1965); State v. Mpetas, 79 N.J. Super. 202, 191 A.2d 186 (App. Div. 1963). [FN6] Ala.City of Trussville v. Porter, 279 Ala. 467, 187 So. 2d 224 (1966). Neb.State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969). [FN7] U.S.U.S. v. Funches, 327 F.3d 582 (7th Cir. 2003). No state action shown No "state action" was involved when private security guards, at least one of whom was registered with the state, searched the defendant's person in the parking lot of the restaurant at which the guards were working; thus the Fourth Amendment was not implicated. Va.Debroux v. Com., 32 Va. App. 364, 528 S.E.2d 151 (2000), adhered to on reh'g en banc, 34 Va. App. 72, 537 S.E.2d 630 (2000). [FN8] Wash.State v. Fisher, 145 Wash. 2d 209, 35 P.3d 366 (2001). Pretextual arrest



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(1) A pretextual arrest occurs when the police employ an arrest based on probable cause as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking. IowaState v. Hofmann, 537 N.W.2d 767 (Iowa 1995). (2) "Pretextual arrests," meaning arrests that would not have occurred but for an ulterior investigative motive, are unreasonable police conduct warranting application of the exclusionary rule. Ark.State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 3 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary References Correlation Table 4. Persons subject to arrest West's Key Number Digest West's Key Number Digest, Arrest 59 Any person capable of a crime is generally liable to arrest. Generally, all persons capable of committing crime are equally liable to arrest in all criminal cases,[1] provided there is a cause for arrest.[2] However, there can be no arrest of a person who is already in custody.[3] A mere intent to commit a crime does not justify an arrest,[4] nor should an arrest be made merely on suspicion.[5] A person lacking capacity, such as an infant[6] or mentally incompetent person,[7] who is committing, or is about to commit, an act which would constitute a criminal offense if committed by another may be arrested.[8] Although such a person may not be guilty of a crime, he or she may lawfully be prevented from doing harm, and such an arrest may be made without first attempting to ascertain the mental capacity of the person to be arrested.[9] The United States Constitution does not guarantee that only the guilty will be arrested.[10] A sheriff executing an arrest warrant is not required by the Constitution to independently investigate every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent; nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim.[11]

[FN1] U.S. Begalke v. U. S., 148 Ct. Cl. 397, 286 F.2d 606 (1960); Colon-Rios v. Perrin, 306 F. Supp. 1314 (D.P.R. 1969). Conn.State v. Towry, 26 Conn. Supp. 35, 210 A.2d 455 (Super. Ct. 1965). [FN2] U.S.Finn v. U.S., 219 F.2d 894 (9th Cir. 1955). N.Y.Bass v. State, 196 Misc. 177, 92 N.Y.S.2d 42 (Ct. Cl. 1949).



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Unconscious or semiconscious persons Unconscious or semiconscious persons may be placed under arrest. Pa.Com. v. Cope, 359 Pa. Super. 140, 518 A.2d 819 (1986). [FN3] U.S.Hayes v. U.S., 367 F.2d 216 (10th Cir. 1966). Kan.McCullough v. Hudspeth, 168 Kan. 39, 210 P.2d 413 (1949). Ky.Sizemore v. Hoskins, 314 Ky. 436, 235 S.W.2d 1011 (1951). [FN4] Tex.Ex parte Muckenfuss, 52 Tex. Crim. 467, 107 S.W. 1131 (1908). [FN5] U.S. Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); U. S. ex rel. Boykins v. Com. of Pa., 328 F. Supp. 970 (E.D. Pa. 1971). Ariz.State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). [FN6] Mo.Bond v. Wabash R. Co., 363 S.W.2d 1 (Mo. 1962). [FN7] U.S.Greenwood v. U.S., 219 F.2d 376 (8th Cir. 1955), judgment aff'd, 350 U.S. 366, 76 S. Ct. 410, 100 L. Ed. 412 (1956). Miss.Forsythe v. Ivey, 162 Miss. 471, 139 So. 615 (1932). [FN8] U.S.Greenwood v. U.S., 219 F.2d 376 (8th Cir. 1955), judgment aff'd, 350 U.S. 366, 76 S. Ct. 410, 100 L. Ed. 412 (1956). [FN9] U.S.Greenwood v. U.S., 219 F.2d 376 (8th Cir. 1955), judgment aff'd, 350 U.S. 366, 76 S. Ct. 410, 100 L. Ed. 412 (1956). [FN10] U.S. Huffaker v. Bucks County Dist. Attorney's Office, 758 F. Supp. 287 (E.D. Pa. 1991); Deary v. Evans, 570 F. Supp. 189, 13 Fed. R. Evid. Serv. 1973 (D.V.I. 1983). [FN11] U.S.Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). As to the effect of a mistake concerning the identity of the person arrested, see 8. Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 4 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary References Correlation Table 5. Persons subject to arrestPrivileges and exemptions West's Key Number Digest West's Key Number Digest, Arrest 60 By virtue of constitutional or statutory exceptions, certain classes of persons may be privileged from arrest under some circumstances. By virtue of constitutional and statutory provisions, certain classes of persons, or persons performing certain duties or engaged about certain kinds of business, are privileged from arrest except for the commission of certain specified offenses.[1] Such provisions are founded on public policy, having due regard for the proper administration of affairs, and are not intended to shield those guilty of criminal offenses.[2] Since exemption from arrest is merely a personal privilege, it may be waived, and where a party goes to trial without claiming a privilege from arrest by plea or motion he or she waives any such privilege.[3] Privilege arising from office held. The constitutional privilege of senators and representatives from arrest in all cases "except treason, felony and breach of the peace," during their attendance at the session and in going to and returning from the same, confers merely a privilege from arrest in civil cases.[4] A congressman or member of a state legislature is not privileged from arrest for the commission of a public offense.[5] A federal officer or employee is not, as such, exempt from arrest for a violation of the criminal laws of a state.[6] However, a member of the armed forces of the United States, while under orders in active service, is not subject to arrest upon an order of a state court.[7] Foreign ministers, legation officers, and consuls. An ambassador or minister representing a foreign sovereign is exempt from all local jurisdiction.[8] The rule exempting foreign ministers and ambassadors from arrest also generally extends to the members of their households and official staff.[9] Officers of court. Where a statute so provides, an officer of a court of record is privileged from arrest during the term of the court.[10] However, a justice of the peace is not exempt from arrest for the commission of a criminal offense.[11



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] Witnesses. Under some statutes, witnesses are immune from arrest in both civil and criminal matters.[12] However, the privilege from arrest granted to witnesses and suitors may be limited to civil cases,[13] in which case a person who attends a legal tribunal in another state in response to a citation is not privileged from being arrested upon a criminal charge.[14] An accused on trial on a criminal charge is not privileged from being arrested on another criminal charge.[ 15]

[FN1] U.S.U.S. v. Provoo, 124 F. Supp. 185 (S.D. N.Y. 1954), judgment aff'd, 215 F.2d 531 (2d Cir. 1954). Wis.City of Janesville v. Tweedell, 217 Wis. 395, 258 N.W. 437 (1935). Immunity exceptional Immunity from arrest is exceptional, and when granted, ordinarily is granted expressly. Cal.People v. Mower, 28 Cal. 4th 457, 122 Cal. Rptr. 2d 326, 49 P.3d 1067 (2002). [FN2] U.S.U. S. ex rel. Dyton v. Ellingsworth, 306 F. Supp. 231 (D. Del. 1969). Mass.Com. v. Chaisson, 358 Mass. 587, 266 N.E.2d 311 (1971). Mich.People v. Harbin, 13 Mich. App. 588, 164 N.W.2d 754 (1968). Minn.State v. Plant, 280 Minn. 397, 159 N.W.2d 404 (1968). Privilege strictly construed While the legislature has seen fit to provide attorneys and other court officers a privilege from arrest while they are going to and returning from court, such privilege is strictly construed so as to apply only to persons licensed to practice law and not to pro se parties. Ill.People v. Boalbey, 90 Ill. App. 3d 738, 46 Ill. Dec. 113, 413 N.E.2d 553 (3d Dist. 1980). [FN3] Cal.Ex parte Emmett, 120 Cal. App. 349, 7 P.2d 1096 (3d Dist. 1932). Ill.People v. Rickelman, 99 Ill. App. 2d 136, 240 N.E.2d 708 (2d Dist. 1968). [FN4] C.J.S., United States 27. [FN5] Cal.Ex parte Emmett, 120 Cal. App. 349, 7 P.2d 1096 (3d Dist. 1932). As to the privilege or freedom of state legislators from arrest, see C.J.S., States 96, 97.



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[FN6] U.S.U.S. v. Kirby, 74 U.S. 482, 19 L. Ed. 278 (1868). [FN7] U.S.In re Turner, 119 F. 231 (S.D. Iowa 1902). Treason Military service gave a soldier no immunity to arrest at the behest of the Department of Justice for treason. U.S.U.S. v. Provoo, 124 F. Supp. 185 (S.D. N.Y. 1954), judgment aff'd, 215 F.2d 531 (2d Cir. 1954). [FN8] C.J.S., Ambassadors & Consuls 18. [FN9] Mass.Morrill v. Hamel, 337 Mass. 83, 148 N.E.2d 283 (1958). [FN10] N.Y.People v. Scordo, 36 Misc. 2d 49, 231 N.Y.S.2d 456 (County Ct. 1962). [FN11] Ind.Gross v. State, 186 Ind. 581, 117 N.E. 562, 1 A.L.R. 1151 (1917). [FN12] Okla.Wright v. State, 1972 OK CR 196, 500 P.2d 582 (Okla. Crim. App. 1972). Voluntary appearance (1) A defendant who came to the state in response to a request of the United States Attorney that he come there to testify in a corporate reorganization proceeding was in the state "voluntarily," and the voluntary character of his presence was not destroyed when he was served with a subpoena by the United States Attorney's office after coming into the state, and he was thus immune from arrest. N.Y. People on Complaint of Creasey v. Bloomenstiel, 48 Misc. 2d 771, 265 N.Y.S.2d 877 (City Crim. Ct. 1965). (2) A witness testifying for the state in a criminal prosecution, after returning from another state, was not immune from arrest where his presence was not compelled under the Uniform Act To Secure The Attendance Of Witnesses From Without A State In Criminal Proceedings but, instead, he voluntarily entered the state to cooperate in the prosecution. S.D.State v. New, 536 N.W.2d 714 (S.D. 1995). Privilege inoperative A statute exempting from arrest and service of process a person coming into the state in obedience to a subpoena was inapplicable, where the petitioner was not brought into the state pursuant to a subpoena of the state courts, but pursuant to a federal grand jury subpoena. N.Y.People v. Aloi, 74 Misc. 2d 263, 342 N.Y.S.2d 740 (County Ct. 1973). [FN13] Mo.Schwartz v. Dutro, 298 S.W. 769 (Mo. 1927). OhioCity of Akron v. Mingo, 169 Ohio St. 511, 9 Ohio Op. 2d 7, 160 N.E.2d 225, 74 A.L.R.2d 585 (1959).



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Police informant A police informant does not enjoy immunity from an arrest that is supported by probable cause. U.S.O'Neal v. Esty, 637 F.2d 846, 7 Fed. R. Evid. Serv. 1069 (2d Cir. 1980). [FN14] U.S.MacNeil v. Gray, 158 F. Supp. 16 (D. Mass. 1957). Ohio City of Akron v. Mingo, 108 Ohio App. 570, 10 Ohio Op. 2d 59, 162 N.E.2d 865 (9th Dist. Summit County 1958), judgment aff'd, 169 Ohio St. 511, 9 Ohio Op. 2d 7, 160 N.E.2d 225, 74 A.L.R.2d 585 (1959). Testimony before legislative committee N.J.State v. Spindel, 24 N.J. 395, 132 A.2d 291 (1957). [FN15] U.S.U.S. v. Conley, 80 F. Supp. 700 (D. Mass. 1948). D.C.Cooper v. U.S., 48 A.2d 771 (Mun. Ct. App. D.C. 1946). Neb.State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 5 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary References Correlation Table 6. Authority to arrest under warrant West's Key Number Digest West's Key Number Digest, Arrest 65 A duly issued warrant authorizes the proper officer to make an arrest thereunder. A warrant of arrest is designed to meet the dangers of unlimited and unreasonable arrest of persons who are not, at the moment, committing any crime.[1] A warrant legally and duly issued authorizes the proper officer to make an arrest thereunder.[2] An officer of the law thus may make an arrest when the officer has a warrant for the arrest.[3] To make an arrest for a felony, either with or without warrant, a police officer must have reasonable cause to believe that a felony has been committed, and reasonable cause to believe that the person proposed to be arrested is the one who committed it.[4] Where a warrant is used as a mere pretext, permitting the officers to search or take a person into custody in order to obtain evidence or information relating to some other charge, the arrest is illegal.[5] However, an arrest warrant issued based on an officer's erroneous information is valid, absent proof that the officer's mistakes were made with intentional or reckless disregard for the truth.[6] Where a warrant is valid on its face, a police officer is under no duty to inquire further into its basis or alleged invalidity before making the arrest.[7] Thus once an arrest warrant is issued, the process server has no duty to go back to the issuer to verify that the warrant is still valid prior to its execution.[8] So long as the police do no more than they are objectively authorized and legally permitted to do, the officer's allegedly pretexual motives in making the arrest are irrelevant and not subject to inquiry.[9] While police officers called on to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause, if the contrary is true, the arrest is subject to challenge.[10] An arresting officer who has purported to act under a warrant is not precluded from justifying an arrest on other grounds.[11] Where there are several outstanding valid warrants for the same person, an arrest may properly be made under any one of them.[12] Entry into home of arrestee.



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Entry of officers into a home or other premises generally may be justified when it is for the purpose of executing a warrant of arrest.[13] An arrest warrant authorizing the police to deprive a person of his or her liberty necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him or her in his or her home.[14] For Fourth Amendment purposes, an arrest warrant founded upon probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.[15] Once an arrest warrant is issued, or probable cause comes into existence, it becomes an officer's duty to arrest the suspect; officers have no discretion in making arrests where there is an outstanding warrant.[16] CUMULATIVE SUPPLEMENT Cases: A valid arrest warrant implicitly grants to police the limited authority to enter a suspect's residence when there is reason to believe the suspect is within. State v. Hess, 2004 SD 60, 680 N.W.2d 314 (S.D. 2004). [END OF SUPPLEMENT]

[FN1] La.In re Moten, 242 So. 2d 849 (La. Ct. App. 4th Cir. 1970). [FN2] U.S.Burdick v. Allgood, 270 F. Supp. 614 (E.D. La. 1967), judgment aff'd, 402 F.2d 480 (5th Cir. 1968); Banks v. Pepersack, 244 F. Supp. 675 (D. Md. 1965). Mich.People v. Gill, 31 Mich. App. 395, 187 N.W.2d 707 (1971). Okla.Watts v. State, 1971 OK CR 275, 487 P.2d 981 (Okla. Crim. App. 1971), judgment modified on other grounds, 1973 OK CR 129, 507 P.2d 915 (Okla. Crim. App. 1973). [FN3] Ark.State v. Fountain, 350 Ark. 437, 88 S.W.3d 411 (2002). As to arrests by private persons, see 11 et seq. Authority of private person While a warrant may give a law enforcement officer authority to execute it, it should not be construed as extending such authority to a private person, since a private person has authority to arrest in only certain limited situations, such as when the person to be arrested has actually committed a felony. Mich.Bright v. Ailshie, 465 Mich. 770, 641 N.W.2d 587 (2002). [FN4] Miss.State v. Woods, 866 So. 2d 422 (Miss. 2003). As to what constitutes probable cause, generally, see 20. As to arrest or detention without a warrant, see 9et seq. Elements of probable cause



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"Probable cause" to arrest and to initiate criminal proceedings exists where the charging officer has knowledge of facts and circumstances sufficient to permit a prudent person of reasonable caution to believe that the person charged has committed an offense. U.S.Huffaker v. Bucks County Dist. Attorney's Office, 758 F. Supp. 287 (E.D. Pa. 1991). [FN5] U.S.Taglavore v. U.S., 291 F.2d 262 (9th Cir. 1961). Warrant not sham U.S.U.S. v. Tillery, 332 F. Supp. 217 (E.D. Pa. 1971), judgment aff'd, 468 F.2d 381 (3d Cir. 1972). [FN6] U.S.Beard v. City of Northglenn, Colo., 24 F.3d 110 (10th Cir. 1994). [FN7] U.S.Williams v. Franzoni, 120 F. Supp. 444 (D. Vt. 1954), judgment aff'd, 217 F.2d 533 (2d Cir. 1954). Del.Tiller v. State, 257 A.2d 385 (Del. 1969). N.Y.Glynn v. State, 47 Misc. 2d 1016, 263 N.Y.S.2d 902 (Ct. Cl. 1965). N.C.State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). No constitutional duty (1) Unless an arrest warrant is facially invalid, an officer has no constitutional duty to independently determine its validity, and an officer who arrests an individual in the belief there is an outstanding bench warrant on him or her acts reasonably in relying on routine police procedures for establishing the existence of an outstanding warrant; in such a case, the officer cannot be held responsible for the failure of the responsible personnel to clear the warrant from the records. U.S.Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984). (2) An arrestee's constitutional rights were not violated when he was arrested by town police officers on an outstanding felony warrant issued in another county, despite a claim that the officers continued to hold him even after they allegedly learned facts concerning the felony complaint which showed that the arrestee was not guilty. N.Y.Bourgeon v. Post, 191 A.D.2d 889, 594 N.Y.S.2d 835 (3d Dep't 1993). [FN8] OhioHicks v. Ohio Dept. of Natural Resources, Div. of Wildlife, 63 Ohio Misc. 2d 338, 629 N.E.2d 1108 (Ct. Cl. 1993). No constitutional violation shown A plaintiff's arrest and seven-hour detention conformed to the requirements of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment, where the arrest was made pursuant to a facially valid certified copy of a fugitive arrest warrant which, due to a clerical error in the clerk of city court's office, was not recalled when the charges against the plaintiff were dismissed.



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U.S.Thibodeaux v. Arceneaux, 618 F. Supp. 24 (W.D. La. 1984), judgment aff'd, 768 F.2d 737 (5th Cir. 1985). Suppression of evidence or testimony resulting from withdrawn warrant (1) An arrest which was made pursuant to a withdrawn bench warrant was illegal, such that any statements made by the arrestee had to be suppressed absent evidence of attenuation. Ga.State v. Stringer, 258 Ga. 605, 372 S.E.2d 426 (1988). (2) An arrest based solely on a recalled warrant is made without probable cause; therefore, the fruits of a search incident to such an arrest must be suppressed. Cal.People v. Ramirez, 34 Cal. 3d 541, 194 Cal. Rptr. 454, 668 P.2d 761 (1983). As to the effect of a mistake concerning the identity of the person arrested, see 8. [FN9] IowaState v. Hofmann, 537 N.W.2d 767 (Iowa 1995). Mo.State v. Mease, 842 S.W.2d 98 (Mo. 1992). [FN10] U.S.Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). [FN11] U.S.Hurst v. U.S., 425 F.2d 177 (9th Cir. 1970); Hagans v. U.S., 315 F.2d 67 (5th Cir. 1963). N.J.Board of Ed. of Newark v. Newark Teachers Union, Local No. 481, Am. Federation of Teachers, AFL-CIO, 114 N.J. Super. 306, 276 A.2d 175 (App. Div. 1971). As to the validity of a warrantless arrest on probable cause where a warrant is invalid, see 19. Presumption of authorization Where an officer is authorized to act only under a warrant, except where the offense is committed in his or her presence, there is a presumption that the officer acted upon one of these alternatives in making an arrest. Mass.Com. v. Bowlen, 351 Mass. 655, 223 N.E.2d 391 (1967). [FN12] U.S.Bandy v. Willingham, 398 F.2d 333 (10th Cir. 1968); Daly v. Pedersen, 278 F. Supp. 88 (D. Minn. 1967). Tex.Dusek v. State, 467 S.W.2d 270 (Tex. Crim. App. 1971). [FN13] U.S.U.S. v. Jones, 475 F.2d 723 (5th Cir. 1973); U.S. v. McKinney, 379 F.2d 259 (6th Cir. 1967). Cal.People v. Lawson, 1 Cal. App. 3d 729, 81 Cal. Rptr. 883 (1st Dist. 1969). Ind.Walker v. State, 155 Ind. App. 404, 293 N.E.2d 35 (3d Dist. 1973).



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Md.Nestor v. State, 243 Md. 438, 221 A.2d 364 (1966). [FN14] U.S.Steagald v. U.S., 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). As to deprivation of liberty and privacy of a third person, see 55. Authority to arrest under search warrant Authority to arrest, under an arrest warrant incorporated in a search warrant, is not limited to the premises described in the search warrant. Tex.Prophet v. State, 815 S.W.2d 836 (Tex. App. Corpus Christi 1991), petition for discretionary review refused, (Feb. 5, 1992). [FN15] N.J.State v. Jones, 143 N.J. 4, 667 A.2d 1043 (1995). [FN16] N.J.State v. Jones, 143 N.J. 4, 667 A.2d 1043 (1995). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 6 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary References Correlation Table 7. Authority to arrest under warrantWho may serve or execute West's Key Number Digest West's Key Number Digest, Arrest 65 A warrant addressed to a particular officer or class of officers must be served by such officer, or by an officer within that class, or his or her duly authorized representative. A peace officer may serve or execute a warrant directed either to peace officers of his class generally, or to him or her by name, or by the designation of his or her office.[1] An officer has no right to make an arrest under a warrant directed to peace officers of another class, however.[2] When a warrant is directed to him or her, a peace officer may be authorized to issue his or her warrant authorizing another or others to execute it.[3] Private person. Unless properly deputized, a private citizen cannot justify an arrest because he or she possesses a warrant, not addressed to him or her, for the arrest of the person sought to be taken.[4]

[FN1] U.S. U.S. v. $1,058.00 in U.S. Currency, 210 F. Supp. 45 (W.D. Pa. 1962), order aff'd, 323 F.2d 211 (3d Cir. 1963). Cal.People v. Chilton, 239 Cal. App. 2d 329, 48 Cal. Rptr. 212 (4th Dist. 1966). Wyo.Branney v. City of Casper, 381 P.2d 66 (Wyo. 1963). As to the mode of making an arrest with a warrant, see 48, 49. [FN2] U.S.U.S. v. Interbartolo, 192 F. Supp. 587 (D. Mass. 1961). [FN3] U.S.MacNeil v. Gray, 158 F. Supp. 16 (D. Mass. 1957). Sheriff of another county



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Ga.Walker v. Whittle, 83 Ga. App. 445, 64 S.E.2d 87 (1951). Neb.State v. Easter, 174 Neb. 412, 118 N.W.2d 515 (1962). [FN4] Ariz.State v. Ovens, 4 Ariz. App. 591, 422 P.2d 719 (1967). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 7 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges A. In General Topic Summary References Correlation Table 8. Authority to arrest under warrantPersons who may be arrested West's Key Number Digest West's Key Number Digest, Arrest 65 A warrant authorizes the arrest only of the person named in it. Where an officer attempts an arrest under a warrant, the officer has authority to arrest only the person named in the warrant.[1] Moreover, an arrest warrant does not authorize the detention, search, or frisk of persons on premises who are neither directly associated with the premises, nor named or described in the warrant.[2] However, an arrest is valid, even though based on a mistaken identification, where officers have a warrant to arrest a certain person and reasonably, and in good faith, mistake the person arrested for the person named in the warrant.[3] Thus if the police have a valid arrest warrant for one person and reasonably and in good faith arrest another, the arrest of the "wrong person" is proper.[4] An arrest of a person under a warrant naming him or her is not illegal because the warrant also contains the names of other accused parties who were not arrested.[5] Moreover, the legality of an arrest under warrant identifying the person arrested is not affected by the fact that the arrest of other persons on the same occasion was unlawful.[6] CUMULATIVE SUPPLEMENT Cases: State troopers had probable cause to support arrest, in arrestee's 1983 unlawful arrest claim, where the troopers conducted warrant check and found an arrest warrant from Florida, which matched the identifying information that the arrestee had provided, and the warrant appeared valid on its face. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. 1983. Foley v. Kiely, 602 F.3d 28 (1st Cir. 2010). Even if police officers illegally stop an automobile, they can arrest an occupant who is found to be wanted on a warrant. Johnson v. Phillips, 664 F.3d 232 (8th Cir. 2011). [END OF SUPPLEMENT]



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[FN1] U.S.Greenwell v. U.S., 336 F.2d 962 (D.C. Cir. 1964). IowaO'Neill v. Keeling, 227 Iowa 754, 288 N.W. 887, 127 A.L.R. 1050 (1939). Miss.Lynchard v. State, 183 Miss. 691, 184 So. 805 (1938). Confirmation of identity required Police officers did not have authorization to arrest a woman who answered a motel door merely because she identified herself with the same first name as the person named in an arrest warrant and generally matched the physical description shown in police records, without confirmation that she was, in fact, the woman named in the warrant; the fact that the officers believed that she was the person named in the warrant did not authorize them to arrest her. Or.State v. Johnson, 120 Or. App. 151, 851 P.2d 1160 (1993). [FN2] Tex.Bell v. State, 845 S.W.2d 454 (Tex. App. Austin 1993). Arrest invalid The arrest of a defendant, under a combination warrant which merely named an "unknown black female," two to four blocks away from the target house, was invalid and the fruits of a search incident to the arrest were inadmissible. Tex.Visor v. State, 660 S.W.2d 816 (Tex. Crim. App. 1983). [FN3] U.S.Gero v. Henault, 740 F.2d 78 (1st Cir. 1984). Fla.Neal v. State, 456 So. 2d 897 (Fla. Dist. Ct. App. 2d Dist. 1984). [FN4] U.S.U.S. v. McEachern, 675 F.2d 618, 10 Fed. R. Evid. Serv. 623 (4th Cir. 1982). No violation of Fourth Amendment (1) Alleged negligence in arresting the wrong person did not violate the Fourth Amendment of the United States Constitution. U.S.Patterson v. Armatys, 808 F. Supp. 550 (E.D. Tex. 1992). (2) If an arrest warrant is valid on its face, its execution against the person named in the warrant does not violate the Fourth Amendment even if, because someone has made a mistake, the person named in the warrant is not the person whom the authorities intended to arrest. U.S.Johnson v. Miller, 680 F.2d 39 (7th Cir. 1982). "John Doe" warrant The description on a "John Doe" warrant, under which the defendant was arrested, was sufficient to give arresting officers ground to take defendant into custody, where the warrant was made out for one "John Doe alias Ortegas" and, at a hearing on a motion to suppress, the arresting officer testified that



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before he placed the defendant under arrest, he had asked "Are you Ortegas?" whereupon the defendant answered "Yes." U.S.Otey v. U.S., 417 F.2d 559 (D.C. Cir. 1969). [FN5] Kan.State v. Shepley, 203 Kan. 635, 456 P.2d 8 (1969). [FN6] Md.Saum v. State, 200 Md. 85, 88 A.2d 562 (1952). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 8 END OF DOCUMENT


CJS ARREST II B REF 6A C.J.S. Arrest II B Refs.

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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Arrest 62 to 63.4(18), 64, 68(3)

A.L.R. Index: Arrest; False Imprisonment and Arrest; Probable Cause; Search and Seizure; Warrants; Witnesses Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST II B REF END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant 1. In General Topic Summary References Correlation Table 9. Generally West's Key Number Digest West's Key Number Digest, Arrest 62, 63.1 Except as precluded by constitutional and statutory provisions and subject to the limitations imposed by them, an arrest may be made without a warrant. An arrest warrant is not a constitutional prerequisite to an arrest[1] and a lawful arrest may be effected, in proper circumstances, without a warrant.[2] However, exceptions to the general requirement of a warrant are few in number, and a warrantless arrest ordinarily must be supported by a showing of an urgent need.[3] At common law, an arrest without a warrant ordinarily is deemed to be unlawful, except in cases where the public security has demanded it.[4] The right to make an arrest without a warrant is commonly defined and limited by statute.[5] Statutes may under proper restrictions authorize arrests without warrants, notwithstanding a constitutional guaranty against deprivation of the individual of liberty without due process of law.[6] The validity of an arrest without a warrant depends on the facts established in each case.[7] In the arrest of a person without a warrant, the person arresting or causing the arrest has the burden of showing that the arrest was lawful,[8] based on the facts existing at the time of the arrest.[9] An arrest therefore may not be justified by what a search incident thereto discloses.[10] Likewise, the legality of an arrest without a warrant does not depend on the final results of the charge on which the arrest was made,[11] and the acquittal or conviction of the accused does not affect the legality of an arrest, provided the arrest was lawful in the first place.[12] Fourth Amendment considerations. The Fourth Amendment of the United States Consitution does not prohibit an arrest without a warrant; it simply prohibits the unauthorized issuance of a warrant without the proper oath or affirmation.[13] Nonethless, the Fourth Amendment protects citizens against unreasonable arrests[14] and mandates that citizens remain free from unlawful searches and seizures by law enforcement officers.[15] The Fourth Amendment right to be free from unreasonable searches and seizures is not limited to criminal cases, but applies whenever the government takes a person into custody against his or her will.[16]



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What law governs. The validity of an arrest without a warrant for state offenses is determined by the law of the state in which the arrest occurred.[17] Similarly, where there is a violation of a federal law, in the absence of a controlling federal statute, the law of the state where the arrest without a warrant takes place determines its validity.[18] For federal purposes, the question of when an arrest took place is governed by the state law.[19] CUMULATIVE SUPPLEMENT Cases: A warrantless arrest by a law enforcement officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. Devenpeck v. Alford, 125 S. Ct. 588 (U.S. 2004). Police officer had probable cause to arrest elementary school teacher, for poking fellow teacher in back with pencil, precluding claim of false arrest or false imprisonment under New York law; while victim did not complain directly to him, officer was part of group who heard her accusations right after alleged incident, truth of allegations was bolstered by their disclosure in group setting, and officer was unaware of animosities between alleged assaulting teacher and victim teacher that might influence victim's statements. Weintraub v. Board of Educ. of City of New York, 423 F. Supp. 2d 38, 208 Ed. Law Rep. 435 (E.D. N.Y. 2006), on reconsideration in part, 2007 WL 1549138 (E.D. N.Y. 2007). [END OF SUPPLEMENT]

[FN1] U.S.U.S. v. Miles, 468 F.2d 482 (3d Cir. 1972). As to authority to arrest under a warrant, generally, see 6. [FN2] U.S.U.S. v. Cangelose, 230 F. Supp. 544 (N.D. Iowa 1964). Mass.Com. v. Lewis, 346 Mass. 373, 191 N.E.2d 753 (1963). OhioBrown v. Maxwell, 174 Ohio St. 29, 21 Ohio Op. 2d 285, 186 N.E.2d 612 (1962). Pa.Com. v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). A.L.R. Library Validity, in state criminal trial, of arrest without warrant by identified peace officer outside of jurisdiction, when not in fresh pursuit, 34 A.L.R. 4th 328. [FN3] Ark.Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). Review by magistrate Anyone arrested for a crime without formal process, whether for a felony or a misdemeanor, is entitled to a magistrate's review of probable cause within 48 hours.



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U.S.Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001). [FN4] U.S.U.S. v. Tarlowski, 305 F. Supp. 112 (E.D. N.Y. 1969). N.C.State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954). Wis.Radloff v. National Food Stores, Inc., 20 Wis. 2d 224, 121 N.W.2d 865 (1963). Summary offense A warrantless arrest of one who commits a summary offense is lawful where the circumstances involve both a breach of the peace and a danger to personal safety. Pa.Com. v. Alford, 321 Pa. Super. 257, 467 A.2d 1351 (1983). [FN5] U.S.Lawrence v. Henderson, 344 F. Supp. 1287 (E.D. La. 1972), judgment aff'd, 478 F.2d 705 (5th Cir. 1973). Fla.Earman v. State, 265 So. 2d 695 (Fla. 1972); Falcon v. State, 226 So. 2d 399 (Fla. 1969). N.Y.Lurie v. District Attorney of Kings County, 56 Misc. 2d 68, 288 N.Y.S.2d 256 (Sup 1968). Common law immaterial Since the law of arrest is now regulated by statute, whatever may have been the rule at common law and in court decisions is no longer material. Del.State v. Holland, 55 Del. 565, 189 A.2d 79 (Super. Ct. 1963), aff'd, 56 Del. 551, 194 A.2d 698 (1963). [FN6] Mich.Burroughs v. Eastman, 101 Mich. 419, 59 N.W. 817 (1894). S.C.State v. Byrd, 72 S.C. 104, 51 S.E. 542 (1905). Satisfaction of statutory exceptions to requirement of warrant A warrantless arrest is permitted only when probable cause for the arrest exists and at least one of the statutory exceptions to the warrant requirement is met. Tex.McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003), reh'g on petition for discretionary review denied, (June 11, 2003) and cert. denied, 124 S. Ct. 536, 157 L. Ed. 2d 410 (U.S. 2003). Illegality under state law An arrest may be constitutionally valid and yet "illegal" under state law. N.C.Matter of Gardner, 39 N.C. App. 567, 251 S.E.2d 723 (1979). [FN7] U.S.De Bruhl v. U.S., 199 F.2d 175 (D.C. Cir. 1952).



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Objective facts Validity of every arrest must depend upon objective facts and the law which pertains to the charge upon which the arrest and consequent forfeiture of liberty is based. U.S.U.S. v. Seay, 432 F.2d 395 (5th Cir. 1970). [FN8] Cal.People v. Mitchell, 251 Cal. App. 2d 641, 59 Cal. Rptr. 677 (2d Dist. 1967). La. State v. Johnson, 255 La. 314, 230 So. 2d 825 (1970), judgment aff'd, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972). Miss.Butler v. State, 212 So. 2d 573 (Miss. 1968). Okla.Greene v. State, 1973 OK CR 191, 508 P.2d 1095 (Okla. Crim. App. 1973). As to evidence of probable cause for arrest by peace officers, see 21. [FN9] Tex.Giacona v. State, 164 Tex. Crim. 325, 298 S.W.2d 587 (1957) (overruled in part on other grounds by, Tumlin v. State, 171 Tex. Crim. 512, 351 S.W.2d 242 (1961)). [FN10] Okla.Greene v. State, 1973 OK CR 191, 508 P.2d 1095 (Okla. Crim. App. 1973). As to the principle that an arrest without a warrant is not justified by subsequent events occurring in a search, see 19. Invalid search not basis for arrest Wis.State ex rel. Furlong v. County Court for Waukesha County, 47 Wis. 2d 515, 177 N.W.2d 333 (1970). [FN11] S.C.Prosser v. Parsons, 245 S.C. 493, 141 S.E.2d 342 (1965). [FN12] Cal.People v. Burgess, 170 Cal. App. 2d 36, 338 P.2d 524 (2d Dist. 1959). [FN13] U.S.Elrod v. Moss, 278 F. 123 (C.C.A. 4th Cir. 1921). [FN14] U.S.U.S. v. Funches, 327 F.3d 582 (7th Cir. 2003). Applicable to seizures of persons and property The simple language of the Fourth Amendment applies equally to seizures of persons and to seizures of property, and the warrantless arrest of a person is a species of "seizure" required by the amendment to be reasonable. U.S.Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). [FN15] Fla.State v. Diaz, 850 So. 2d 435 (Fla. 2003), cert. denied, 124 S. Ct. 936, 157 L. Ed. 2d 745 (U.S. 2003).



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[FN16] U.S.Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996). When seizure of person occurs Seizure of a person, within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution, occurs when in light of all of the circumstances surrounding the encounter the police conduct would have communicated to a reasonable person that he or she was not at liberty to ignore the police presence and go about his or her business. U.S.Kaupp v. Texas, 538 U.S. 626, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003). [FN17] U.S.U.S. v. Berryhill, 466 F.2d 621 (8th Cir. 1972). Ariz.State v. McGuire, 13 Ariz. App. 539, 479 P.2d 187 (Div. 2 1971). Colo.People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971); Md.Graham v. State, 13 Md. App. 171, 282 A.2d 162 (1971). N.C.State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973). [FN18] U.S.Miller v. U.S., 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958); U. S. v. Blackman, 183 F. Supp. 545 (D. D.C. 1960). Federal law applicable A border search by customs agents and the subsequent arrest of defendants crossing the Mexican border into California was not governed by California law, but rather by federal law. U.S.Murgia v. U.S., 285 F.2d 14 (9th Cir. 1960). [FN19] Cal.People v. Sanchez, 256 Cal. App. 2d 700, 64 Cal. Rptr. 331 (2d Dist. 1967). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 9 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant 1. In General Topic Summary References Correlation Table 10. Who may arrest, generally West's Key Number Digest West's Key Number Digest, Arrest 62 Certain persons are authorized by statutes, under specified conditions, to arrest without a warrant one who commits a crime or offense. Statutes generally contain provisions authorizing certain persons to arrest without a warrant one who commits a crime or offense and specify the conditions under which such authority may be exercised.[1] Where the prescribed conditions are not present, such a person may not make an arrest.[2] The power of state officers to make arrest for state offenses is determined by state law.[3] Likewise, subject to the protections afforded by the United States Constitution, the validity of an arrest without a warrant for state offenses is determined by the law of the state in which the arrest occurred.[4] Military officers or police. A member of the military police may make an arrest for a misdemeanor committed in his or her presence.[5] A military officer also has a right to arrest without a warrant for other offenses.[6]

[FN1] U.S.Taylor v. McDonald, 346 F. Supp. 390 (N.D. Tex. 1972). Cal.People v. Campbell, 27 Cal. App. 3d 849, 104 Cal. Rptr. 118 (1st Dist. 1972). Ill.People v. Gasparas, 98 Ill. App. 2d 391, 240 N.E.2d 716 (1st Dist. 1968). N.Y.People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625, 36 A.L.R.3d 547 (1968). As to arrests by private persons, generally, see 11. As to arrests by peace officers, generally, see 14.



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[FN2] Md.Matthews v. State, 3 Md. App. 555, 240 A.2d 325 (1968). Mistaken interpretation of statute A mistaken opinion of the head resident of a student apartment building as to the interpretation of a criminal trespass statute could not fulfill a requirement of the criminal code that there be reasonable grounds to believe an offense is being committed before one person may arrest another and did not justify removal of a tenant's invitee, who sued for false imprisonment, from the building and the arrest of the invitee as a trespasser. Minn.State v. Childs, 269 N.W.2d 25 (Minn. 1978). [FN3] U.S.U.S. v. Mejias, 552 F.2d 435, 1 Fed. R. Evid. Serv. 1328 (2d Cir. 1977). [FN4] 9. [FN5] U.S.Weissman v. U.S., 387 F.2d 271 (10th Cir. 1967). [FN6] U.S.Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945). Holding person for peace officer A military policeman, to whom a defendant was pointed out as having broken a window of a store and taken merchandise, had reasonable grounds to suppose that property had been stolen and had a right to hold the defendant for a peace officer. Tex.Weaver v. State, 472 S.W.2d 518 (Tex. Crim. App. 1971). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 10 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant 1. In General Topic Summary References Correlation Table 11. Arrests by private persons West's Key Number Digest West's Key Number Digest, Arrest 64 Under proper circumstances, a private person may make an arrest without a warrant. A private person may have the same right to arrest as a peace officer,[1] even though there is time to obtain a warrant.[2] Such an arrest, also referred to as a citizen's arrest, is as binding as an arrest by a police officer.[3] An arrest by a private person may be valid even though the citizen does not physically confront the defendant, as where a citizen directs a police officer to make the arrest and then observes the officer doing so.[4] If a private person is deemed to be acting for and on behalf of the sovereignty, in making an arrest, the arrest is subject to the inhibitions of the constitutional provisions against unlawful searches and seizures.[5] However, the action of a private person in detaining a defendant ordinarily is not subject to a Fourth Amendment challenge.[6] Moreover, the fact that a private person makes an arrest is not a basis for prosecuting the private person under a statute which creates liability for subjecting, under color of state law, any person to deprivation of rights, privileges, or immunities secured by the United States Constitution and laws.[7] As a general rule, unless changed by statute, it is both the right and duty of a private person, who is present when a felony is committed,[8] or who reasonably believes a crime has been committed in his or her presence,[9 ] to apprehend the felon without waiting for the issuance of a warrant. In this regard, a private person is "present" when a felony is committed when the offense is apparent to his or her senses, and not merely when he or she is in physical proximity to the commission of the offense.[10] However, a private individual generally may make a warrantless arrest only when a felony has in fact been committed or a misdemeanor is being committed in the presence or view of the arrester which amounts to a breach of the peace.[11] In securing or attempting a citizen's arrest, a private person may only use the amount of force that is reasonable and necessary.[12] Citizen's arrest by peace officers and public officials. A police officer, who at the time of the arrest is not acting in his or her official capacity as a police officer, has all the powers of arrest of a private person.[13] Consistent with this rule, a law enforcement officer may



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make an arrest as a private citizen when a felony is committed in his or her presence.[14] The fact that a police officer might have identified himself as an officer does not prevent the officer from making a valid citizen's arrest.[15] Various public officials are authorized to make citizen's arrests in instances where such arrests would otherwise be permissible,[16] such as customs agents,[17] federal treasury[18] and narcotics[19] agents, FBI agents,[ 20] internal revenue agents,[21] and postal inspectors.[22] CUMULATIVE SUPPLEMENT Cases: The purposes of the private person arrest statute are (1) to provide a mechanism whereby a person, who is not a peace officer, may lawfully arrest another under the limited circumstances described in the statute and (2) to require that the nearest available law enforcement agency or peace officer immediately be given notice and custody of the arrestee. MCA 466502. State v. Updegraff, 2011 MT 321, 363 Mont. 123, 267 P.3d 28 (2011). [END OF SUPPLEMENT]

[FN1] Cal.Frazier v. Moffatt, 108 Cal. App. 2d 379, 239 P.2d 123 (2d Dist. 1951). Campus police officers Campus police officers had a common law right, as private citizens, to arrest a defendant off the college campus, where the officers' monitoring of a police radio frequency led them to believe that the defendant was a burglary suspect. Va.Hall v. Com., 12 Va. App. 559, 389 S.E.2d 921, 59 Ed. Law Rep. 559 (1990). [FN2] U.S.U.S. v. Montos, 421 F.2d 215 (5th Cir. 1970). Fla.Collins v. State, 143 So. 2d 700 (Fla. Dist. Ct. App. 2d Dist. 1962). [FN3] N.Y.People v. Reisner, 162 Misc. 470, 295 N.Y.S. 813 (Magis. Ct. 1936). Manifestation of intent to perform citizen's arrest When a private person makes a citizen's arrest, no formal announcement is required, as long as the citizen sufficiently conveys, either through words or conduct, the intent to perform a citizen's arrest. IowaRife v. D.T. Corner, Inc., 641 N.W.2d 761 (Iowa 2002). [FN4] Cal.People v. Johnson, 271 Cal. App. 2d 51, 76 Cal. Rptr. 201 (2d Dist. 1969). [FN5] Ky.Thacker v. Com., 310 Ky. 702, 221 S.W.2d 682 (1949). [FN6] U.S.U.S. v. Mendez-de Jesus, 85 F.3d 1 (1st Cir. 1996).



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Not government action An arrest by a private citizen is not government action, for Fourth Amendment purposes, where the citizen is not acting pursuant to instructions from the police. AlaskaO'Connor v. Municipality of Anchorage, 907 P.2d 1377 (Alaska Ct. App. 1995). [FN7] U.S.Warren v. Cummings, 303 F. Supp. 803 (D. Colo. 1969). [FN8] U.S.Montgomery v. U.S., 403 F.2d 605 (8th Cir. 1968). Md.Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970). N.Y.People v. E., 38 A.D.2d 394, 330 N.Y.S.2d 3 (2d Dep't 1972), order aff'd, 30 N.Y.2d 884, 335 N.Y.S.2d 435, 286 N.E.2d 919 (1972). Security guard A security guard may lawfully arrest and detain any person violating any state law or any legal ordinance of any city or incorporated village of the state. Neb.Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001). [FN9] U.S.U.S. v. Hensley, 374 F.2d 341 (6th Cir. 1967). OhioState v. Stone, 16 Ohio Misc. 160, 45 Ohio Op. 2d 123, 241 N.E.2d 302 (Mun. Ct. 1968). Apprehension by store owner or employee (1) A store owner who believed that a defendant had stolen merchandise from his store had a common law right to apprehend the defendant, even if only for a period of time sufficient to either prevent a theft or recapture his property. Md.Claggett v. State, 108 Md. App. 32, 670 A.2d 1002 (1996). (2) A store employee who witnesses someone commit the offense of theft of property from the store has a lawful right to arrest the offender. Tex.Simpson v. State, 815 S.W.2d 900 (Tex. App. Fort Worth 1991). Prevention of felony A private person also has a right to make an arrest without a warrant for the purpose of preventing the commission of a felony, and may arrest without a warrant one whom he or she finds attempting to commit a felony. N.Y.People v. Santiago, 53 Misc. 2d 264, 278 N.Y.S.2d 260 (County Ct. 1967). [FN10] U.S.U.S. v. Viale, 312 F.2d 595 (2d Cir. 1963).



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Cal.People v. Sjosten, 262 Cal. App. 2d 539, 68 Cal. Rptr. 832 (1st Dist. 1968). Detection of commission of offense For purposes of making a lawful citizen's arrest, it is sufficient if the citizen detected the commission of the offense through one of his or her senses, such as hearing, sight, or smell. IowaRife v. D.T. Corner, Inc., 641 N.W.2d 761 (Iowa 2002). [FN11] Md.Herrington v. Red Run Corp., 148 Md. App. 357, 811 A.2d 894 (2002). Tex.Turner v. State, 901 S.W.2d 767 (Tex. App. Houston 14th Dist. 1995), petition for discretionary review refused, (Oct. 4, 1995). As to arrests by private persons for misdemeanors and breaches of the peace, see 13. Probable cause insufficient to support citizen's arrest The arrestee had not committed a felony, and thus a bounty hunter did not have authority to arrest him, even though the bounty hunter had a facially valid Missouri arrest warrant naming the arrestee, given that probable cause to believe that the arrestee committed a felony was not sufficient to support the arrest. Mich.Bright v. Ailshie, 465 Mich. 770, 641 N.W.2d 587 (2002). [FN12] Nev.State v. Weddell, 118 Nev. 206, 43 P.3d 987 (2002), cert. denied, 537 U.S. 1001, 123 S. Ct. 492, 154 L. Ed. 2d 396 (2002). [FN13] U.S.Monteiro v. Howard, 334 F. Supp. 411 (D.R.I. 1971). Cal.People v. Lyons, 18 Cal. App. 3d 760, 96 Cal. Rptr. 76 (4th Dist. 1971). La.State v. Jones, 263 La. 164, 267 So. 2d 559 (1972). As to arrests by police officers in their official capacity, see 15. [FN14] U.S. U.S. v. Brown, 551 F.2d 639 (5th Cir. 1977), on reh'g, 569 F.2d 236 (5th Cir. 1978); U.S. v. Ible, 630 F.2d 389, 7 Fed. R. Evid. Serv. 94 (5th Cir. 1980); U.S. v. Hernandez, 715 F.2d 548 (11th Cir. 1983). Test for lawfulness of arrest A police officer has a right, as a private citizen, to make an arrest when a felony is committed in his or her presence, or when a felony has actually been committed and the officer, as a citizen, reasonably believes, in good faith, that the person to be arrested has committed the felony. U.S.U.S. v. Ible, 630 F.2d 389, 7 Fed. R. Evid. Serv. 94 (5th Cir. 1980). [FN15] U.S.U.S. v. Hernandez, 715 F.2d 548 (11th Cir. 1983).



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Fla.Phoenix v. State, 455 So. 2d 1024 (Fla. 1984). [FN16] N.D.State v. Iverson, 187 N.W.2d 1 (N.D. 1971). [FN17] U.S.U.S. v. Hou Wan Lee, 264 F. Supp. 804 (S.D. N.Y. 1967). [FN18] Mo.State v. Fritz, 490 S.W.2d 30 (Mo. 1973). [FN19] U.S.U.S. v. Heliczer, 373 F.2d 241 (2d Cir. 1967). [FN20] Colo.Schiffner v. People, 173 Colo. 123, 476 P.2d 756 (1970). [FN21] U.S.U.S. v. Viale, 312 F.2d 595 (2d Cir. 1963). [FN22] U.S.U.S. v. DeCatur, 430 F.2d 365 (9th Cir. 1970). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 11 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant 1. In General Topic Summary References Correlation Table 12. Arrests by private personsCrime not committed in arrester's presence West's Key Number Digest West's Key Number Digest, Arrest 64 A private person generally may lawfully arrest another person without a warrant for a felony not committed in his or her presence, if a felony has actually been committed and if the private person has probable or reasonable cause to believe that the person arrested committed the felony. Generally, arrests by private persons for felonies not committed in their presence violate no constitutional standard, state or federal.[1] Thus at common law and under various statutory provisions, a private person acting in good faith may lawfully arrest one without a warrant for a felony not committed in his or her presence[2] if a felony has actually been committed, and the private person has probable or reasonable cause to believe that the person arrested committed the felony.[3] However, mere proof of reasonable and probable cause for making an arrest without a warrant ordinarily will not justify such an arrest unless a felony has actually been committed.[4] The requirement that there in fact be a felony committed can only be met if there is evidence of the corpus delicti and it is an offense known by the arresting party to have been committed.[5] Furthermore, it must appear not only that a felony has been committed, but also that the offense was committed by the person arrested therefor, before the arrest will be justified.[6] Where an arrest for a felony is made by a private citizen, probable cause for said arrest exists where the facts and circumstances within the citizen's knowledge, and of which the citizen has reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed.[7] Thus in determining whether a private person had the requisite reasonable cause for believing that the person whom he or she arrested had committed a felony, each case must be decided on facts presented at the time.[8]

[FN1] U.S.Wion v. Willingham, 252 F. Supp. 306 (D. Colo. 1965). N.Y.Lurie v. District Attorney of Kings County, 56 Misc. 2d 68, 288 N.Y.S.2d 256 (Sup 1968).



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[FN2] Ind.Smith v. State, 258 Ind. 594, 283 N.E.2d 365 (1972). Mich.Nash v. Sears, Roebuck & Co., 12 Mich. App. 553, 163 N.W.2d 471 (1968), judgment rev'd on other grounds, 383 Mich. 136, 174 N.W.2d 818 (1970). Minn.State v. Duren, 266 Minn. 335, 123 N.W.2d 624 (1963). Arrest by police officer acting as citizen (1) If it is known that a felony has been committed, but not in the police officer's presence, the test for a lawful citizen arrest by a police officer out of his or her jurisdiction is whether the person making the arrest had reasonable grounds to believe that the individual arrested committed a felony, and whether the officer making the arrest acted under color of his or her office. U.S.U.S. v. Ible, 630 F.2d 389, 7 Fed. R. Evid. Serv. 94 (5th Cir. 1980). (2) Even if sheriff's deputies were acting only as private citizens when they effectuated an arrest of a defendant a few miles outside their territorial jurisdiction, that arrest was valid under Louisiana statutory law authorizing private citizens and police officers alike to arrest for felonies not committed in their presence. La.State v. Washington, 444 So. 2d 320 (La. Ct. App. 1st Cir. 1983), writ denied, 445 So. 2d 450 (La. 1984). [FN3] U.S. U.S. v. Montos, 421 F.2d 215 (5th Cir. 1970); Monteiro v. Howard, 334 F. Supp. 411 (D.R.I. 1971). Cal.People v. Wilkins, 27 Cal. App. 3d 763, 104 Cal. Rptr. 89 (2d Dist. 1972). Ky.Whitaker v. Com., 479 S.W.2d 592 (Ky. 1972). Md.Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970). Mo.State v. Fritz, 490 S.W.2d 30 (Mo. 1973). N.D.State v. Iverson, 187 N.W.2d 1 (N.D. 1971). Actual knowledge not required All that is required to authorize a valid citizen's arrest is reasonable grounds to believe that a felony has been committed and that the defendants were the responsible agents, and not that the arresting persons had actual knowledge of the felony's commission. Md.Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980). [FN4] Cal.People v. Martin, 225 Cal. App. 2d 91, 36 Cal. Rptr. 924 (2d Dist. 1964). [FN5] Cal.People v. Aldapa, 17 Cal. App. 3d 184, 94 Cal. Rptr. 579 (2d Dist. 1971). [FN6] U.S.Pugach v. Klein, 193 F. Supp. 630 (S.D. N.Y. 1961).



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Fla.Collins v. State, 143 So. 2d 700 (Fla. Dist. Ct. App. 2d Dist. 1962). Ill.Green v. No. 35 Check Exchange, Inc., 77 Ill. App. 2d 25, 222 N.E.2d 133 (1st Dist. 1966). N.Y. Jacques v. Sears, Roebuck & Co., Inc., 30 N.Y.2d 466, 334 N.Y.S.2d 632, 285 N.E.2d 871 (1972). [FN7] Wash.State v. Williams, 27 Wash. App. 848, 621 P.2d 176 (Div. 1 1980). Under statute authorizing arrest to prevent theft A statute governing a private person's right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, before a magistrate authorizes a private citizen to make a warrantless arrest of a thief where stolen property is found in the thief's possession; the legality of an arrest and seizure under the statute depends upon whether the party making the arrest and seizure had reasonable grounds or probable cause to believe that the property seized had been stolen and that the party arrested was the thief who had stolen it. Tex.Douglas v. State, 695 S.W.2d 817 (Tex. App. Waco 1985), petition for discretionary review refused, (July 30, 1986). [FN8] Cal.People v. Wilkins, 27 Cal. App. 3d 763, 104 Cal. Rptr. 89 (2d Dist. 1972). As to the time when probable cause must exist, generally, see 23. Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 12 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant 1. In General Topic Summary References Correlation Table 13. Arrests by private personsFor misdemeanor and breach of peace West's Key Number Digest West's Key Number Digest, Arrest 64 Ordinarily, a private person may arrest without a warrant one committing a misdemeanor or a breach of the peace in his or her presence. Except where the rule is changed by statute,[1] a private person may arrest without a warrant one who commits a misdemeanor in his or her presence,[2] such as a breach of the peace.[3] Furthermore, an arrest may be justified where it is reasonably suspected that a person is threatening or attempting to commit a breach of the peace.[4] Where one commits a misdemeanor in the presence of a private person and seeks forcibly to resist an arrest by him or her, the offender is also guilty of a breach of the peace and may be arrested by a private person without a warrant.[5] To justify an arrest by a private person without a warrant for an offense less than a felony, where permitted by statute, it is essential that the offense actually have been committed or attempted.[6] Furthermore, it is necessary that such offense be committed in the presence of the person making the arrest.[7] It is not sufficient that the private person making the arrest have knowledge of the commission of the offense; he or she must also be able to detect the offense, by sight or hearing, as an act of the accused.[8] Furthermore, the right of a private individual to arrest someone is limited to the time the offense is committed or while there is continuing danger of its renewal, and a private citizen may not see the offense and then later pursue the guilty party in order to apprehend him or her for the police.[9] In order to be valid, a citizen's arrest for a misdemeanor must be made at the time when the offense was committed or immediately thereafter,[10] or while there is a continuing danger of its renewal.[11] If a private person fails to make an arrest immediately after commission of the offense, his or her power to do so is extinguished and a subsequent arrest is illegal.[12]

[FN1] U.S.Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945).



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OhioLester v. Albers Super Markets, 61 Ohio L. Abs. 360, 101 N.E.2d 731 (C.P. 1951). [FN2] U.S.Moll v. U.S., 413 F.2d 1233 (5th Cir. 1969). Cal.People v. Campbell, 27 Cal. App. 3d 849, 104 Cal. Rptr. 118 (1st Dist. 1972). Miss.Butler v. State, 212 So. 2d 573 (Miss. 1968). [FN3] Cal.Kinney v. County of Contra Costa, 8 Cal. App. 3d 761, 87 Cal. Rptr. 638 (1st Dist. 1970). Md.Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970). Mo.Sturgeon v. Holtan, 486 S.W.2d 209 (Mo. 1972). Common law rule At common law, a private citizen may arrest another for a breach of the peace committed in his or her presence. Va.Hudson v. Com., 266 Va. 371, 585 S.E.2d 583 (2003). [FN4] Cal.People v. Johnson, 271 Cal. App. 2d 51, 76 Cal. Rptr. 201 (2d Dist. 1969). Del.State v. Hodgson, 57 Del. 383, 200 A.2d 567 (Super. Ct. 1964). Miss.Butler v. State, 212 So. 2d 573 (Miss. 1968). Determination of whether breach of peace occurred The determination of whether an act amounts to a "breach of the peace" is performed on a case-by-case basis, looking to the facts and circumstances surrounding the act to support the citizen's arrest. Tex.Turner v. State, 901 S.W.2d 767 (Tex. App. Houston 14th Dist. 1995), petition for discretionary review refused, (Oct. 4, 1995). [FN5] U.S.Moll v. U.S., 413 F.2d 1233 (5th Cir. 1969). Conn.Malley v. Lane, 97 Conn. 133, 115 A. 674 (1921). [FN6] Minn.State v. Duren, 266 Minn. 335, 123 N.W.2d 624 (1963). UtahFerguson v. Jongsma, 10 Utah 2d 179, 350 P.2d 404 (1960). [FN7] U.S.McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971). [FN8] Mo.Gray v. Earls, 298 Mo. 116, 250 S.W. 567 (1923). [FN9] Tex.Turner v. State, 901 S.W.2d 767 (Tex. App. Houston 14th Dist. 1995), petition for discretionary review refused, (Oct. 4, 1995). [FN10] U.S.McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971).



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N.C.State v. Tripp, 9 N.C. App. 518, 176 S.E.2d 892 (1970). [FN11] Mich.People v. Robinson, 37 Mich. App. 115, 194 N.W.2d 537 (1971), judgment aff'd, 388 Mich. 630, 202 N.W.2d 288 (1972). N.C.State v. Tripp, 9 N.C. App. 518, 176 S.E.2d 892 (1970). [FN12] U.S.McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ARREST 13 END OF DOCUMENT



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Corpus Juris Secundum Database updated May 2012 Arrest by John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc. II. Arrest on Criminal Charges B. Arrest or Detention Without Warrant 2. Arrest by Police Officers a. In General Topic Summary References Correlation Table 14. Generally West's Key Number Digest West's Key Number Digest, Arrest 63.1 A peace officer may make a lawful arrest without a warrant under certain circumstances, as authorized by specific statutory provisions, provided the arrest is not violative of the Federal Constitution. A peace officer may under certain circumstances make a lawful arrest without a warrant,[1] provided the arrest is not violative of the Federal Constitution.[2] If an officer of the law has probable cause to believe that an individual has committed even a very minor criminal offense in his or her presence, the officer may arrest the offender without violating the Fourth Amendment of the United States Constitution.[3] Nonetheless, in the context of arrests, the Fourth Amendment prefers warrants,[4] and a police officer should be armed with an arrest warrant where reasonably possible or practical.[5] Exigent circumstances, such as will justify a warrantless arrest, may arise from the factors such as the need to prevent an offender's escape, the need to minimize the possibility of a violent confrontation which could cause injury to the officers and the public, or the need to preserve evidence from destruction or concealment.[6] However, in order for the police to arrest a suspect based on exigent circumstances, those circumstances must exist prior to the decision to make the warrantless arrest.[7] Failure of the police to obtain an arrest warrant, in the absence of exceptional circumstances, may be sufficient to invalidate an arrest.[8] Where the right to arrest without a warrant is regulated by statute, a warrantless arrest made in violation of the applicable statute is illegal.[9] On the other hand, the validity of an arrest is not necessarily established by the fact that the arresting officer's action was endowed, expressly or impliedly, with power conferred by statute.[ 10] A police officer's decision as to whether to use authority to make a warrantless arrest is an exercise of discretion.[11] The officer is not required to determine the guilt of the person to be arrested, however,[12] and a measure of uncertainty on the part of an officer as to which offense has been committed does not necessarily preclude a lawful arrest.[13] The fact that a police officer elects to charge the arrested person with the more serious of two crimes involved does not prevent the validity of the arrest from resting on the lesser crime.[14]



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The validity of an arrest by a peace officer without a warrant depends on the facts and circumstances of the particular case,[15] as presented to the officer at the time he or she is required to act.[16] A lawfully effected warrantless arrest by a peace officer thus cannot be made unlawful by subsequent events,[17] such as acquittal of the arrested person.[18] Conversely, an arrest which is unlawful to begin with is not made lawful by subsequent events,[19] or by what the officer subsequently finds,[20] so an arrest cannot be

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