Arrest Practices

Arrest, the first formal procedure in the criminal justice process, occurs when a police officer takes a person into custody for having allegedly committed a criminal offense. Quite literally, it means that the person arrested can no longer move about freely. But not every encounter with a police officer can be classified as an arrest. Consider the following. A police officer stops a teenaged man on the street at 4:00 in the morning and asks what he is doing out and about at that hour. The young man responds that he had a fight with his friend and is walking off the anger. The officer then asks to see some identification, which the young man produces. After this he says, “I'd like to go home now,” and walks off. Although the individual was stopped and questioned, he was never taken into custody—never arrested. On the other hand, suppose the young man fits the description of a burglary suspect, and in this case, when he states he would like to go home, the officer—who has probable cause to keep the young man there—says, “Not so fast. I have several additional questions to ask you. Please step over to the patrol car.” Although the words “You are under arrest” were never uttered, the young man is in custody—under arrest, because the officer has deprived him of his freedom to leave.

There are a variety of reasons why police will stop and speak with citizens, but these citizens may not be arrested. It is only when they attempt to leave that they will discover whether they are in custody. In the 1980 case of United States v. Mendenhall, Supreme Court Justice Potter Stewart established the “free to leave” test for determining if a person has been arrested. Stewart wrote, “A person has been seized within the meaning of the Fourth Amendment only if in view of all circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” In the 1994 case of Stansbury v. California, the Supreme Court again used Stewart's test in determining the point at which an arrest had been made. In this case, which focused on the interrogation [Page 58]of a suspected child molester and murderer, the Court ruled, “In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

When the decision to arrest is made, an officer has come to the conclusion that a crime has been committed and the suspect is likely the one who committed it. These mental elements represent the probable cause necessary for an arrest. Probable cause is the proof necessary for a reasonably intelligent person to suspect that a crime has been committed or that items connected with criminal activity can be found in a particular place. Probable cause is necessary for an arrest under every circumstance.

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