Arrest

Arrest, the portal to the criminal justice system, occurs when a legal authority deprives a person of liberty in order to force him or her to answer a criminal charge. Most arrests are made by police officers, but peace officers, such as probation or court officers, also make arrests pursuant to their official duties. Under circumscribed conditions, private individuals may make arrests, although this is discouraged by professional law enforcement.

The processing of an arrest can vary in length from under an hour to more than a day, depending on police and prosecutorial procedures, case complexity, witness availability, and other contingencies. The formal recording of an arrest, known as booking, consists of noting an arrest time, basic identifying information about the arrestee, and the charges. Usually, this is followed by photographing and fingerprinting the suspect. If interrogated, the suspect must first be informed of his or her constitutional rights regarding counsel and self-incrimination. An affidavit describing the offense(s) is then prepared for presentation at the first court appearance, known as an arraignment. Defendants are usually arraigned (formally charged and asked to enter an initial guilty/not guilty plea) within 48 hours of arrest.

Juvenile arrest processing differs significantly from that of adults. Police may take youth into custody for status offenses (acts deemed unacceptable for minors, such as drinking or truancy) as well as for crimes. Depending on such factors as the seriousness of the behavior, the child's history, and the cooperation of parents or other caretakers, police officials may release the child to a caretaker without formalizing the arrest or proceeding to a court hearing. Conversely, if circumstances warrant, the youth may remain in custody and then be brought directly to juvenile court. Many jurisdictions also have laws and procedures wherein the most serious juvenile offenders are arraigned in adult court.

Arrest-making at all government levels is regulated by the Fourth Amendment's prohibition against unreasonable seizures and requirement that arrest warrants be issued based only on probable cause. In practice, courts and state statutes have allowed law enforcement agents with probable cause to proceed without a warrant in about 95% of arrests. If the offense in a warrantless arrest is minor, agents must establish probable cause through their presence—a term interpreted as either seeing the offense or perceiving it through other senses, as when feeling a weapon, hearing a cry for help, or smelling marijuana. Offenses classified as misdemeanors may or may not require the agent's presence, depending on local statutes and procedures, but felony arrests do not require the officer's presence.

Acting on an arrest warrant, an official need not physically possess the warrant when making the arrest, but must promptly bring the arrestee before the court of issuance. Jurisdictions differ as to the circumstances requiring an arrest warrant, but in the 1980 case of Payton v. New York, the Supreme Court declared that any arrest at a private residence without suspect consent or emergency circumstances always requires a warrant.

That same year, the Supreme Court also sought to distinguish an arrest from the many situations in which police detain persons for questioning on less than probable cause. It held in United States v. Mendenhail (1980) that an arrest occurred “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he is not free to leave.” At such time, Miranda protections are applicable.

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