4A: Arrests and seizures

Question 1

Seizure: definition

Answer 1

A seizure occurs when an officer intentionally terminates or restrains a person’s freedom of movement by either:

(1) Physical force, e.g., grabbing the suspect by the arm, blocking her ability to move, or shooting her;
(2) Show of authority, e.g., showing a badge and saying, “Stop.”

The test is whether a reasonable person would feel free to disregard the officer.

Question 2

Seizure: intent requirement

Answer 2

The officer must intend to stop a party for there to be a seizure:

• It is a seizure if an officer rams a suspect’s car in an attempt to stop the car;
• It is not a seizure of a third party if an officer accidentally runs over the third party while chasing a suspect.

Question 3

Arrests: probable cause

Answer 3

There must be probable cause—i.e., more likely than not—to believe that the arrested person has committed a crime. Arrests need not be with a warrant.

Pretext arrests are acceptable—i.e., it is irrelevant whether the officer stopped a person for the crime for which there is probable cause or some other crime, e.g., making a turn without signaling.

Question 4

Arrests: warrants

Answer 4

A warrant must:

(1) Be issued by a neutral and detached magistrate based on a finding of probable cause to believe that the person has committed a particular crime;
(2) Name the person and identify the offense.

Question 5

Arrests: without a warrant

Answer 5

An officer can arrest an individual without a warrant in a public place either:

(1) For a crime committed in the officer’s presence, or;
(2) Based on probable cause to believe that the individual committed a felony, i.e., an officer may not arrest a person for a non-felony committed outside of the officer’s presence.

Question 6

Arrests: knock-and-announce rule

Answer 6

The knock and announce rule pertains to arresting someone in that person’s own home. Failure to knock and announce invalidates the arrest.

Even if the police knock and announce their intention, entry would still be unconstitutional if the occupier does not consent.

The interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery.

Question 7

Arrests: home arrests

Answer 7

An officer must have a reasonable belief that the individual is home prior to entering her home to arrest her.

An officer cannot rely on an arrest warrant to effect the arrest in the home of a third party.

Question 8

Arrests: Equal Protections

Answer 8

There may be an Equal Protections issue if officers choose who to stop based on race or other discriminatory criteria.

Question 9

Probable cause: Gerstein hearing

Answer 9

A preliminary hearing to determine whether probable cause exists to hold the defendant—i.e., a Gerstein hearing—generally must be held within 48 hours of the defendant’s arrest.

There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant.

Question 10

Consequences of an illegal arrest

Answer 10

Illegal arrests do not prevent prosecution for the charged crime, but they may result in the exclusion of evidence discovered during the arrest.