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Arrest and Detention

Updated on October 17, 2012

Know the basics of arrest law


In the US, an arrest is the legal method of detention resulted after the initial police contact or further investigations clear all suspicions and probable cause is evident to sustain charges and apprehend a person. An arrest might not be considered valid when there is no probable cause or not sufficient reasonable reason to restrain a person or if the arrest was made as the result of a due process violation. In the US and in most cultures, an arrest is considered valid when performed by either private persons or police authorities with the purpose of detention to prevent suspects from fleeing away.

Who can perform and arrest?

Citizens have the right to carry weapons, conduct investigations, defend property, and make arrests. Legally, the duties to decide and perform arrests are given to the police authorities at their jurisdiction. However, the law also provides for individual parties to conduct arrests as well. Private persons can perform arrest and face no criminal proceeding nor civil liability when the law enables such arrest.


When can a law officer arrest?

A peace officer is able to detain and arrest an individual when:

  1. There is probable cause that a crime (felony) occurred and the person to apprehend is involved or suspected.

  2. An arrest warrant is the basis

  3. ANY offense committed in the presence of the arresting officer.

  4. The officer lacks arrest authority for misdemeanors based on sole probable cause when committed outside his presence. Exception: Domestic violence, elder abuse, DUI resulting in traffic accident, carrying loaded firearms, crimes in school grounds.

  5. Miranda rights are advised to those arrested if any questioning is to be made, no questions equals no Miranda required. Miranda rights for minors arrested is always required whether questions are asked or not.

When can a private person arrest?

  1. A crime committed in the person's presence.

  2. There is probable cause to believe that a felony in fact occurred whether in his presence or not.


Is there any possibility a law enforcement officer or private person faces liabilities for damages, injuries, or illegality resulting due to an arrest? Yes, as we learned in class last semester, the arrest is made to restrain and stop a person and ANY DEGREE OF FORCE will be accepted if necessary to keep control of the situation. However, an officer might not be liable if an illegal arrest was made (even though the exclusionary rule will exclude all evidence obtained as the result of the arrest). A private person, however, is more likely to face civil torts for due process violations.

When an officer is liable for damage?

  1. Evidence obtained in such a malicious violation of constitutional and or due process rights will be excluded unless good faith exception applies.

  2. The officer is not liable for injuries resulting due to an arrest or pursuit unless evil intentions are evident.

When is a private person responsible for damage?

  1. A private person can arrest with probable cause for felonies that were in fact committed, if a felony was not committed then civil torts, liabilities, and even criminal procedures may apply.

  2. Any degree of force is considered reasonable if it was required to prevent a crime, stop an offender either from committing a crime against one self or another or feeling, or to defend one self.

What if evidence is found?

  1. if the evidence was obtained in a legal manner, in the state of California the right to truth in evidence law will require that no relevant evidence shall be excluded form court.

  2. Evidence seizure and constitutional rules apply to government peace officers only, and all evidence obtained in violation of criminal proceeding will be excluded from criminal courts. Note: Exclusionary rule applies to CRIMINAL procedures ONLY, Civil courts, parole and probation hearing, taxation, and deportation hearings will anyways admit evidence normally excluded from criminal court due to violations.

  3. Evidence resulting from a private person exploratory search will be admissible, regardless of any procedure violation, when turned over to authorities. However, the person might be liable for a civil tort or even criminal charges.

  4. Note: if a private person happens to find evidence when acting under police direction or police is supervising the search, then all procedures rules will apply.

Therefore, the law looks forward stoping offenders and will empower police authorities to stop and arrest as well as private citizens. The arresting person is always able to take any measure to prevent any crime commission against one self or another and to stop a criminal for police.

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    • jose7polanco profile imageAUTHOR

      Jose Misael Polanco 

      5 years ago from Los Angeles

      Miranda rights are available for use at any time at any police questioning or conversation.

      The police is required to inform the person of his right only if they plan to question him and said person is under arrest or other type of custody. If they did not asked any more questions after arresting or asked questions only when detained but not yet arrested then no, you always had the rights but they needed not to inform you about it. they only must inform rights when suspects a person in in custody plus is being asked questions. Questions alone or arrest/custody alone is not enough yet until both combine. Thanks for commenting.

    • profile image

      kristy 

      5 years ago

      what if i was not read my rights, but was handcuffed and taken to the substation where i was in a cell, finger printed and gave a ticket??? They had my car towed due to being arrested but claim i was not arrested but it comes up I was arrested Don't they have to Maandize me

    • jose7polanco profile imageAUTHOR

      Jose Misael Polanco 

      5 years ago from Los Angeles

      Arrests by private persons might o be so common among most normal people. But there are agencies like bail bond, private investigations, collection debt, and some more that will employ private citizens to make arrests.

    • profile image

      Maria 

      5 years ago

      Maybe private citizens arrests are lawful, but they surely are too dangerous. Maybe thats why we never hear of private arrest here

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