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What is an Arrest?

Updated on December 28, 2009

An arrest, in criminal law, occurs when a policeman or other law enforcement officer takes a person suspected of crime into custody, depriving him of his freedom of action. Usually it is the first in a series of steps in the criminal process leading possibly to the conviction of the suspect. Customarily, arrests are promptly followed by the suspect's being taken to a police station for fingerprinting, photographing, and "booking" (recording of the facts of the arrest and of the charge), and then being taken before a judge for the fixing of bail and for preliminary screening of the grounds for detention.

A person's previous arrest for a crime is often referred to as his criminal record. This has been criticized as unfair, since, despite his arrest, he may never have been convicted.

A person may be arrested by a policeman holding an arrest warrant. Most often, however, arrests are made without warrants in legal circumstances considered to be reasonable; that is, under provisions such as those contained in the 4th Amendment to the U.S. Constitution, which prohibit unreasonable seizures of persons (as well as of property). Generally speaking, either a policeman or a private citizen may legally arrest someone who is committing or attempting to commit a crime in his presence. A policeman or other law officer also may arrest a person who he has reasonable cause to believe has committed a felony outside of his presence.

In many states of the United States, until the 1960's, the questions of (1) precisely when an arrest took place and (2) whether it was made according to the requirements of the law had little impact on the determination of guilt or innocence of the suspect. This is because the primary purpose of an arrest is to ensure, so far as possible, that the suspect will be available for disposition of his case, whether he be kept in custody pending trial or under some such hold as bail. In most of the states, questions as to whether in fact the person was in custody and, if so, whether he was arrested legally arose mainly in connection with lawsuits instituted by the arrested person for false imprisonment. These suits, which can still be filed in all states, sought money damages from the arrester. In the 1960's, however, historic constitutional decisions by the U.S. Supreme Court added great significance to these questions. Under these decisions, the precise moment of the arrest and the amount of information then known by the police are factors that may determine whether evidence possessed by the police can be used at the trial to help prove a suspect's guilt of the crime with which he is charged.

One of the decisions (Mapp v. Ohio, 1961) applied to all of the states a rule (previously in effect in the federal court system but in only some of the states) that evidence taken as a result of a search of the suspect or of his immediate vicinity, without a search warrant, could not be used against him if the arrest was not made according to law. Known as the "exclusionary rule" because it calls for the exclusion of evidence from use at trial, it was developed by the courts because they considered it the best deterrent to improper police action.

Another Supreme Court decision (Miranda v. Arizona, 1966) was even more significant than its famous "parent case" (Escobedo v. Illinois, 1964). In Miranda v. Arizona, the court applied the exclusionary rule to a confession or other statement given by a suspect after his arrest, in answer to police questions, if the police did not follow certain requirements. These include advising the suspect of his constitutional privilege not to answer any questions, as well as of his right to have an attorney (provided by the state, under some circumstances) present to advise him during any questioning. (The Escobedo ruling had specified the right to an attorney.)

These developments have led to the reexami-nation of what contacts the police may have with a person before it can be considered that an arrest has taken place. One proposal is that police may stop a person on the street for general questioning and make a limited search of him for a weapon without its being considered an "arrest" or a "search" in the legal sense.


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