Many P&P members are writing stories that involve some police
procedures. In response to Joy's request on the board of of
basic police procedure related to arrest, Nancy and Joan provided lots
of well-researched information. It is posted here to
benefit all of the P&P members who are not only writing mysteries,
but writing stories that involve basic police procedure.
Thank you, Nancy and Joan, and thanks to Joy for suggesting it have its own special page here.
To start, Joy found the following link, which she has suggested as a good starting resource:
http://www.abanet.org/publiced/practical/books/family_legal_guide/chapter_14.pdf
What is an arrest?
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may have been involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary. You also can be detained by storekeepers if they suspect you have stolen something from their stores.
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address, and to show some identification if requested.
Who can arrest me?
All law enforcement officers - such as police officers, county sheriffs, investigators in a district attorney's or an attorney general's office, and highway patrol officers - can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.
They can arrest you - even if they
do not have an arrest warrant - if they have probable cause or good reason to
believe you have committed a felony, such as an armed robbery. (A felony is a
crime of a more serious nature than a misdemeanor, and is usually punishable by
imprisonment for more than one year.) They do not have to see you commit a
felony in order to arrest you. They do, however, have to see you commit a
misdemeanor in order to arrest you.
When an officer attempts to contact or question you, you should politely say:
"I do not consent to this contact and I do not want to answer any
questions. If I am not under arrest I would like to go now (or be left
alone)."
When can I be released?
If, during the questioning and before a charge is filed, the police are convinced that you have not committed the crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.
In general, police need a warrant to remove a person from his or her home. If a person is arrested, they have a right to a timely arraignment (usually within 48 hours), followed by a probable cause hearing, before the case goes to trial
I don't believe that police can detain a person without probable cause. Here's a definition of probable cause (from Wikipedia):
The most widely held common definition would be "a reasonable belief that a crime has been committed" and that the person is linked to the crime with the same degree of certainty. An alternative definition has been proposed, "reason to believe that an injury had criminal cause", which is claimed to be more protective of individual rights as was intended by the authors of the Bill of Rights.
In the context of warrants, the Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)." "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction. Even hearsay can supply probable cause if it is from a reliable source or is backed up by other evidence.
An arrest is not permitted based on reasonable suspicion; probable cause is required for a arrest.
Here's some info on search warrants (from nolo.com):
A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M." and direct the police to search for and seize "cash, betting slips, record books, and every other means used in connection with placing bets on horses."
How Police Obtain Search Warrants
Police officers obtain search warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.
The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.
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From Joan:
Definition of Probable Cause:
http://faculty.ncwc.edu/toconnor/315/315lect06.htm
Detaining
Basically in some states it depends on how could the
circumstances are whether you could be detained and for how long. I’ve
watched several court cases where other state’s cases has been sited and
the motion delivered that the officers where justified in detaining a person
upheld and the case lost to the defendant.
Case References re “Right of Due Process”
I believe the Fourteenth Amendment gives us the right of due process of law, but the
fourth amendment & sixth amendment also gives the officers the right
without probable cause to detain a person –New Mexico Law case sited
below:
York, 442 U.S. 200, 208 (1979). Terry was the first case to recognize that
"the
Fourth Amendment governs `seizures' of the person . . . [other than] `arrests,'"
Terry, 392 U.S. at 16, and it created a "narrowly drawn" exception to the probable
cause requirement for lesser governmental intrusions into an individual's liberty,
id. at 27. Thus, in certain narrowly drawn instances, a law enforcement officer
may stop a person without probable cause for arrest if the officer has a reasonable and articulable suspicion that the person might be involved in criminal activity.
The following reference actual cases in Utah concerning detainment and arrest:
Detention Prior to Preliminary Proceedings in Utah
Issue: In Utah, how long can a person be detained following a warrantless arrest prior to having the arrest considered by a magistrate?
Brief Answer: A person detained without a warrant is entitled to a probable cause determination by a magistrate no longer than 48 hours after the arrest.
Gerstein v. Pugh, 420 U.S. 103 (1975). The Fourth Amendment requires a “prompt” judicial determination of probable cause as a pre-requisite to an extended pretrial detention following a warrantless arrest. In a probable cause (or “Gerstein”) determination, “the sole issue is whether there is probable cause for detaining the arrested person pending further proceedings.” Such proceedings are non-adversarial and the arrestee is not entitled to counsel. The Court did not specify the amount of time within which a judicial determination of probable cause must occur.
County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The Fourth Amendment does not compel immediate determination of probable cause upon completion of the administrative steps incident to a warrantless arrest. However, probable cause must be determined by an impartial magistrate as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Even if a detained person receives a probable cause hearing within 48 hours, it may still be unconstitutional if the individual can prove that the probable cause determination was unreasonably delayed. Examples of unreasonable delays are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. When an arrested individual does not receive a probable cause determination within 48 hours, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstances. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance; nor do intervening weekends. Probable cause hearings can be ex-parte and non-adversarial.
Strepka v. Miller, 28 Fed. Appx. 823 (10th Cir. 2001) (unpublished opinion). Neither police officers nor city were liable under 42 U.S.C. § 1983 for police officers’ alleged violation of detainee’s Fourth Amendment right to prompt judicial determination of probable cause, where detainee was held for five days prior to probable cause determination, since detainee did not allege that officers acted pursuant to municipal custom or policy. To establish municipal liability, a plaintiff must show (1) the existence of a municipal custom or policy; and (2) a direct causal link between the custom or policy and the violation alleged.
Austin v. Hamilton, 945 F.2d 1155 (10th Cir. 1991). For a detention less than 48 hours, the reasonableness of the detention is a matter for the trier of fact, who must determine whether the period of detention is reasonable in light of all the circumstances accompanying arrest, including transportation, booking, filing, photographing, fingerprinting, identity verification, and criminal record wanted checks, as well as the number of individuals to be processed with the detainee in question.
Rule 4-611, Utah Code of Judicial Administration:
In order to detain any person arrested without a warrant, as soon as is
reasonably feasible but in no event longer than 48 hours after the arrest, a
determination shall be made as to whether there is probable cause to continue
to detain the arrestee. The determination may be made by a magistrate, although
if the arrestee is charged with a first degree felony or capital offense, the
magistrate may not be a justice court judge. The arrestee need not be present
at the probable cause determination . . . . The magistrate shall review the
probable cause statement [provided by the arresting officer] and from it
determine whether there is probable cause to continue to detain the arrestee.
If the magistrate finds there is not probable cause to continue to detain the
arrestee, the magistrate shall order the immediate release of the arrestee. If
the magistrate finds probable cause to continue to detain the arrestee, the
magistrate shall immediately make a bail determination.
Utah Code of Criminal Procedure § 77-7-23(1)(a):
When an arrest is made without a warrant by a peace officer or private person,
the person arrested shall be taken without unnecessary delay to the magistrate
in the district court, the precinct of the county, or the municipality in which
the offense occurred, except under Subsection (2). An information stating the
charges against the person shall be made before the magistrate.
Rule 7(b) of the Utah Rules of Criminal Procedure:
When any peace officer or other person makes an arrest with or without a
warrant, the person arrested shall be taken to the nearest available magistrate
for setting of bail. If an information has not been filed, one shall be filed
without delay before the magistrate having jurisdiction over the offense.
UTAH CASES RE TIME ELAPSED BETWEEN DETAINMENT AND WARRANT
TIME CALCULATION
Rule 2(a) of the Utah Rules of Criminal Procedure:
In computing any period of time, the day of the act or event from which the
designated period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, a Sunday, or
a legal holiday. When a period of time prescribed or allowed is less than 11
days, intermediate Saturdays, Sundays, and legal holidays shall not be included
in the computation.
See also Preliminary Hearings, 80 Geo. L.J. 1175
(1992); Probable Cause Determination, 1992 WL 558876 (Nev. A.G.); Expediting
Arrest Processing, 2 Cornell J.L & Pub. Pol’y 121.
Another case site in the State of Illinois
http://www.state.il.us/court/Opinions/SupremeCourt/1999/June/Opinions/HTML/84739.htm