Law of Arrest Checklist

Step 1: Is there Probable Cause to Arrest the Suspect?

Step 2: Do you need a Warrant?
o Where is the Arrest going to take place?
 IN PUBLIC
 If Felony, no Warrant needed.
 If Misdemeanor…
o Committed in presence of officerno warrant
o Not in presence of officer  warrant.

IN SUSPECT’S HOME
 Arrest warrant necessary, unless:
o Exigent circumstances
o Valid consent
 Note: threshold of home is considered “in public” for purposes of arrest [Santana]

IN ANOTHER’S HOME
 Search warrant needed (and maybe arrest warrant), unless:
o Exigent circumstances
o Valid consent

Step 3: Is Warrant Validly Executed?
o Reasonable basis to believe suspect is at home at time of execution
o Knock & Announce

Step 4: Is Deadly Force Used? [Tennessee v. Garner]
o Unreasonable, unless police have reasonable belief that felon:
 is armed and dangerous
 presents a significant risk to society

Step 5: If arrest is unlawful, did it lead to the acquisition of evidence to be used against suspect?
o YES, evidence may be excluded.
o NO, unlawful arrest has no impact on criminal prosecution.
Law of Arrest Checklist Expanded

Step 1: Is there Probable Cause to Arrest the Suspect?
Type of Detention
Request for Intrusion
Level of Suspicion
Anytime, except on “whim or
caprice”
Common Law Right to Inquire
Founded suspicion that criminal
activity is afoot
Stop (and Frisk)
Reasonable suspicion that
individual has committed or is
about to commit a crime.
Probable cause.
Arrest
Police Right
Suspect’s right not to respond or to
run away does not give rise to PC
or reasonable suspicion.
Ask questions briefly—if
individual gives explanations,
police must release her.
If reasonable belief that individual
is harmed, frisk may be conducted
Conduct warrantless search
incident to arrest.
o Analysis: subjective intentions play no role for ordinary probable cause Fourth Amendment
analysis.

Arkansas v. Sullivan— ∆’s tinted windows were too tinted for state of Arkansas—an arrestable offense. On
pretext for inquiring about overly-tinted windows, police search driver’s person and find drugs. Police
admitted that their subjective impulse was to check car for drugs. Held: Even when police admit on record
that their mindset was in a dif. direction than cause for traffic stop, it doesn’t matter. All that matters is
objectively if police had cause to pull car over.
o Factors in Determining Suspicion—none alone is sufficient to establish probable cause.
 Furtive/shady gestures
 Flight
 Failure to identify oneself to police
 Failure to ID plus reasonable suspicion that the person has committed or is
committing an offense gives rise to PC to arrest [Hiibel v. Nevada]
 Reputation
 Of Area
o Flight in a high-crime area does give reasonable suspicion as ground to
stopping [Illinois v. Wardlow]
o Mere standing in high crime area is insufficient for reas. suspicion.
 Of Person
o Reputation of person can play role in establishing PC for arrest [Hensley]
 Sensory Perceptions
 Smell
 Sight
 Use of aids permitted
o Can use tracking beeper on public streets [US v. Knotts; US v. Karo]
o Cannot use sense-enhancing device not in general public use to explore
details of the home that previously would have been unknowable without
physical intrusion [Kyllo v. US].


Officer Expertise
 Under the totality of the circumstances test, facts are not to be considered in
isolation, but taken collectively, giving due weight to factual inferences drawn by
law enforcement officers [US v. Arvizu]
Valid APB from another jurisdiction
 A valid APB can give rise to PC [US v. Hensley]
o If PC, was there a search?
 Rule: if the offense is an arrestable infraction, a warrantless arrest and incident search is
allowed regardless of how minor the violation is [Atwater v. City of Lago Vista]
o If no PC, was there an arrest?
 Rule: an arrest occurs when suspect —
 is physically collared; or
 responds affirmatively to police commands (ex: stopping when told to stop).

Mere police presence is not an arrest or a stop [California v. Hodari D.]
 If you are free to ignore their commands, you have not been stopped
o

Was detention valid based on lower level of suspicion?



Florida v. Bostick—police boarded bus and started questioning people. Held that the
only reason they couldn’t leave was because bus was moving. People were technically
free to ignore police orders and therefore were not stopped.
Fitting drug courier profile gives reasonable suspicion to stop [US v. Sokolow]
Dog sniff is not a search—but detaining suspect unreasonably while luggage is sniffed is
an arrest [US v. Place]
If Defendant is validly stopped—was detention long enough to qualify as arrest?

Court looks at totality of circumstances to determine whether length of detention
based on reasonable suspicion is reasonable
o
o
Sharpe v. US— Police and DEA were monitoring drug smuggling road, and one of the
DEA and police pull over 2-car caravan—which meets courier profile. They pulled them
over a mile apart, but lost radio contact with each other. All the communication to regain
radio contact took longer than 20 minutes. Held: reasonable detention—not an arrest.
But… Florida v. Royer—∆ fit drug courier profile—taken to small room at airport for 20
minutes until luggage could be found and checked. Held: Arrest—PC was necessary and
police didn’t have it: evidence excluded.
o Taken to police station? Station-House Detention
 Rule: probable cause needed to compel a person against their will to come to the station
house for interrogation or fingerprinting [Hayes v. Florida].


Dunaway v. New York—police were interviewing guy in jail, who said that ∆ was involved in
bank robberies. Police retrieved ∆ who was on parole and took him to station for questioning.
Police admitted they didn’t initially believe guy in jail—only had reasonable suspicion not
probable cause. Held: inadmissible—PC required.
Kaupp v. Texas—6 police officers investigating murder went to home of 17-year old boy at 3am
and took boy to station, where he made incriminating statements. Police concededly didn’t have
probable cause and didn’t have arrest warrant. Court rejected this conclusion, saying there was no
reason to think that boy’s submission of “OK” was lawful submission to police authority. Failure
to struggle with a cohort of deputy sheriffs is not a waiver of your 4th Amendment rights.
o Special Case: Automobile Stops
 Rule: police may not stop a car randomly solely to check license and registration
[Delaware v. Prouse].1
 Police may stop car if they believe you’ve committed a traffic offense
 Police can stop every car or randomly selected cars at a roadblock

For roadblocks & checkpoints, see Search and Seizure Checklist.
Flexibility of Standards as to:
o Belief of Crime
 Summers – police searched house and found what they believed were stolen TVs, but
then searched Summers and found dtugs.
 Police only need reasonable belief that crime has been committed. Just b/c it
turns out that there was no crime at all doesn’t matter.
o Belief of Person
 Maryland v. Pringle (2003) (Supp, 5-7) – Police may arrest all 3 persons in a car in
which cocaine was found after each had denied ownership of the drugs.
 If someone is committing a crime in a group setting, and everyone denies it,
everyone in group can be arrested.
 Since people couldn’t tell whose cocaine it was, police were permitted to arrest
everyone in car, on ground that there was probable cause that each of them had
cocaine.
 Commentator: There is no limit on this Pringle case. Suppose you were at
someone’s party and police find cocaine, what’s to keep the police to arrest
everyone at party? Nothing. They can arrest everyone at that party.

Step 2: Do you need a Warrant?
Does the Felony/Misdemeanor exception apply only to arrests in public? Does it even apply in public??
o Where is the Arrest going to take place?
 IN PUBLIC [US v. Watson]
 Felony2
o Rule: police may arrest w/o warrant any time they have PC to believe
 a felony was committed; and
 suspected committed the felony.

1
Misdemeanor3
This does not apply to boats—police may stop a single boat to check its license and registration. It would be impractical to have boat
roadblocks. On the other hand, it would be really cool.
2
Felonies are crimes punishable by maximum authorized sentence of more than 1 year in jail.
3
Misdemeanors are offenses whose maximum authorized sentence is up to or including 1 year in jail
o Rule: police may arrest w/o warrant for a misdemeanor only if it is
committed in the presence of the arresting officer(s).
 Presence = perception of crime by any of the officer’s senses.
 Note: power to arrest for misdemeanors w/o a warrant may be
expanded by statute.

IN SUSPECT’S HOME
 Rule: the non-emergency arrest of a suspect in her home requires a warrant
[Payton v. New York]
o


4
Step 3:
o
o
o
This is merely a prophylactic requirement—not constitutionally mandated; i.e., Court
would like police to do this and will exclude evidence (e.g., statements) made at the
home, but if arrest is based on PC, arrest is lawful and statements made thereafter are
admissible [New York v. Harris]

Note: threshold of home is considered “in public” for purposes of arrest [Santana]

Exceptions:
o Exigent circumstances
 Rule: govt bears burden of showing there was an emergency
sufficient to dispense with Payton requirement [Welsh v. Wisconsin]
 Requirements:
 Non-Minor Offense4
 Emergencies:
o Evidence will be destroyed
o Suspect will escape
o Harm to officers or others
o Valid consent
IN ANOTHER’S HOME
 Rule: when police have arrest warrant which they choose to execute at a third
party’s home, warrant does not confer authority to search that home [Steagald v. US]
o Note: Steagald would probably allow quick visual inspection

Compare: when police have a search warrant, they may detain people found on
the premises while they execute the warrant [Michigan v. Summers]

Exceptions:
o Exigent circumstances
o Valid consent
Is Warrant Validly Executed?
Reasonable basis to believe suspect is at home at time of execution
Knock & Announce
No Third Parties
While there is no absolute ban on emergencies on minor offenses, the burden would be much harder to meet in non-felony cases.

Rule: it is a violation of the 4th Amendment for police to bring a member of the media
or a third party into a home during the execution of a warrant where the presence of the
third party does not aid in the execution of the warrant [Wilson v. Layne]

Step 4: Is Deadly Force Used? [Tennessee v. Garner]
o Unreasonable, unless police have reasonable belief that felon:
 is armed and dangerous
 presents a significant risk to society

Step 5: REMEDIES—if arrest is unlawful, did it lead to the acquisition of evidence to be used against suspect?
o An illegal arrest and detention, w/o a concomitant interrogation that produces a confession or a
concomitant search that produces evidence, has no impact on the subsequent criminal
prosecution.
 Government remedy: if they illegally arrest you the first time, they just make sure to do
it legally the second time.
 Citizen’s remedy: civil suit—no impact on subsequent prosecution.
o Remedy: Exclusion—if illegal arrest results in:
 Seizure of evidence w/o a warrant on the grounds that it was incident to lawful arrest
 Statement that was made at a concomitant interrogation during illegal period of detention
o Generally, the Supreme Court is free to announce its decisions, but cannot enforce them.

Knowles v. Iowa—Iowa passed statute: anytime police have reason to pull you over and issue a traffic
citation, they may search the entire car w/o a warrant. Unanimous Supreme Court that held this statute was
unconstitutional—requiring some particularized suspicion for search to be constitutional. After Knowles,
state police got around Knowles by pulling cars over and announcing to drivers that they were going to
arrest drivers and then search car. If they don’t find anything, police just change their mind and just issue a
citation.
o Whitebread: SC should announce rules-based decisions which will actually affect police practice
on the streets.