The Arrest Process: Definition & Steps

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  • 0:02 What is an Arrest?
  • 2:43 When Can an Arrest Occur?
  • 5:31 How Should an Arrest Occur?
  • 8:13 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley has a JD degree and is an attorney. She has extensive experience as a prosecutor and legal writer, and she has taught and written various law courses.

In order to perform a legal arrest, police must follow a specific process. This lesson explains what constitutes a legal arrest and describes the arrest process.

What is an Arrest?

Officer Oliver is patrolling a highway when he sees Susie Suspect swerving in and out of her lane. He turns on his lights and pulls Susie over. He approaches Susie's car and asks her to get out. Susie gets out and can barely stand up. He asks Susie to perform a few field sobriety tests but she can't do it. Officer Oliver then asks Susie if she's had any drugs or alcohol and she says she's had a few glasses of wine. Officer Oliver then leads Susie to the back seat of his patrol car and puts her in. Is Susie under arrest? If so, at what point was Susie arrested?

There's no definitive standard for what is, or is not, an arrest. An arrest occurs when the suspect being detained reasonably believes that he or she is not free to leave. Generally, it's important to note that an arrest originates the moment a law enforcement officer takes the suspect into police custody. This means that the officer has taken away the suspect's freedom of action in some significant way.

Keep in mind that there is no arrest if there is no restraint. The suspect must be restrained in some way. But not all restraints rise to the level of an arrest. For example, the United States Supreme Court has ruled that a traffic stop is not an arrest. When you've been pulled over for a traffic stop, you are temporarily restrained. You aren't exactly free to leave. However, the Court has ruled that you aren't restrained to the extent that you would be considered to be in police custody. Therefore, you aren't under arrest.

An arrest can occur in a number of different situations, including:

  • The officer touches or puts his or her hands on the suspect
  • The officer indicates an intention to take the suspect into custody and the suspect therefore submits to the officer
  • The suspect consents to being arrested
  • The suspect is placed in handcuffs or other restraints
  • The suspect is placed in a law enforcement vehicle
  • The suspect is told he or she is under arrest

Susie was likely arrested the moment the officer began to lead her to his patrol car.

When can an Arrest Occur?

Let's take a look at when an arrest can legally occur. Keep in mind that an arrest takes away the suspect's fundamental right to freedom. Therefore, our laws require that the government follow certain procedures.

Arrests must be based on probable cause. This means the officer has a reasonable belief, based on facts that can be articulated, that the suspect has committed a crime. In other words, the officer can't simply say he or she had a hunch something was going on. In Susie's case, the officer can articulate that he observed her swerving and that she couldn't stand up. That is probable cause.

However, the officer doesn't have to personally witness the events to have probable cause. Probable cause can be based on other things, like witness statements or physical evidence. For example, let's say Officer Oliver responds to a burglar alarm at a local store. The front door is smashed and Susie is hiding inside the store. She has cuts on her hands and is carrying a large sack. This is probable cause.

An officer can also choose to use an arrest warrant. An arrest warrant is an official document, signed by a judge that authorizes a police officer to arrest a particular person. Arrest warrants are helpful because they give a little bit of added assurance to the officer. On the other hand, it takes some time to get an arrest warrant. Even in emergency cases, it can take a few hours and it can often take a few days. That's because the officer must provide evidence to the prosecuting attorney, who then signs off on the warrant and presents it to a judge. Once a judge signs off on the warrant, the warrant can then be executed and the suspect can be legally arrested.

It's important to note that arrest warrants aren't typically necessary. Generally, officers only need a warrant to make an arrest in someone's own home for a non-serious crime. Officers sometimes choose to get arrest warrants in serious or high profile cases, or when they aren't certain they have probable cause.

Note also that law enforcement officers don't file criminal charges after an arrest. They gather information and evidence and then provide their reports to the prosecuting attorney. The prosecuting attorney then reviews the reports and decides whether or not to file criminal charges. If the prosecutor decides to file charges, he or she also decides what type of charges should be filed.

How Should an Arrest Occur?

Now let's take a look at how a legal arrest should occur. There are certain arrest procedures that must be followed in order to complete a legal arrest. These procedures vary by jurisdiction.

Remember that a suspect can be under arrest without being handcuffed, without being placed in a law enforcement vehicle, or without being told that he or she is under arrest. And, though movies typically show officers reading Miranda warnings at this point, that's not necessary to be under arrest either. However, some jurisdictions require officers to follow these procedures simply for safety purposes and to ensure a smooth prosecution of the case.

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