What Constitutes a Legal Arrest?

There are legal and illegal ways to conduct an arrest.

There may seem to be a right way to execute an arrest and a wrong way to execute an arrest, but there are actually a few different ways a legal arrest can be carried out. For an arrest to be legal, a police officer must have probable cause and/or an arrest warrant when making the arrest.

Elements of an Arrest

There is a difference between an arrest and a stop or seizure.

A legal arrest occurs if a police officer executes an arrest warrant bearing the suspect's identity and arrests the person. A legal arrest also occurs when a police officer has probable cause to believe a person has committed a crime and arrests the person.

Probable Cause

A legal arrest needs probable cause.

To obtain an arrest warrant, a police officer must have probable cause. The police officer prepares a written affidavit stating the factual basis for probable cause. When a police officer knows of certain circumstances and facts that would be sufficient for a reasonable person to believe that a suspect has committed a crime, is committing a crime, or is about to commit a crime, he has probable cause. For example, if a person who is a suspected participant in a drug ring names the ring's leader, the police would have probable cause to arrest the alleged ring leader.

Arrest Warrant

A warrant must be obtained from a magistrate.

With probable cause and an affidavit, a police officer would go to a magistrate or a judge, who then determines if there is sufficient probable cause. The officer must provide an oath or affirmation that the warrant's contents are accurate, a description of the person to be arrested, and a statement of when, where and how the warrant will be executed. The police officer must execute the arrest according to the terms and scope of the arrest warrant.

Consent

There are some exceptions to the warrant requirement. A police officer need not obtain a warrant to seize or arrest a person if the person willingly goes along with the arrest. Although, everyone has the constitutional right not to consent to an arrest, a police officer need not inform a suspect of that right before the suspect consents to the arrest.

Probable Cause without a Warrant

If the police officer does not conduct the arrest in a home, dwelling, or some other place that has a reasonable expectation of privacy, the officer can arrest a suspect without a warrant, provided that he has probable cause to execute the arrest.

References

• 'Lectric Law Library: Probable Cause
• Lawyers.com: The Criminal Justic Process
• 'Lectric Law Library: Arrest