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. handcuffs four image by Paul Moore from Fotolia.com
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. yes image by Aleksandr Ugorenkov from Fotolia.com
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. judge image by dinostock from Fotolia.com
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
- Photo Credit arrest (two soldiers during military exercise) image by Vladimir Melnik from Fotolia.com handcuffs four image by Paul Moore from Fotolia.com yes image by Aleksandr Ugorenkov from Fotolia.com judge image by dinostock from Fotolia.com