i. The Arrest – lawful or unlawful?

     This page is continued from Criminal Proceedings >>>> 1. The Arrest, Search and Seizure, and Booking:


     A police officer may arrest a person if

(1) the officer observes the person committing a crime;
(2) the officer has probable cause to believe that a crime has been committed by that person; or
(3) the officer makes the arrest under the authority of a valid arrest warrant (a “warranted arrest“).

n. (14c)

1. A seizure or forcible restraint, especially by legal authority.

2. The taking or keeping of a person in custody by legal authority, especially in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law, especially of bringing that person before a court.arrest, vb. [2]

1. The taking, seizing or detaining oi‘ the person of another, accomplished by

(1) touching or putting hands on the person to be detained;
(2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or
(3) by the consent of the person to be arrested. 5 Am J2d Arr § 1.

     In military law, the detention of a member of the armed forces resulting from the preferring of charges and the convening of a court-martial. United States v Smith, 197 US 386, 49 L Ed 801, 25 S Ct 489. [3]

1. Detention of a person on a criminal charge.

2. Any detention of a person, with or without the intent to take him into custody. [4]

     Excerpt from Charles H. Whitebread’s Criminal Procedure (1980):

     “The question of what constitutes an arrest is a difficult one.  On one end of the spectrum, it seems apparent that detention accompanied by handcuffing, drawn guns, or words to the effect that one is under arrest qualifies as an ‘arrest’ and thus requires probable cause.  At the other end, a simple questioning on the street with often not rise to the level of an arrest.  Somewhere in between lie investigative detentions at the stationhouse . . . . [6]

3. Maritime law. The taking of a ship and sometimes its cargo into custody by virtue of a court’s warrant. [2]

Related Terms, Doctrines, etc.:

arrestee – The person in whose possession goods are held under an arrestment; a garnishee in Scotch law. [3]

1. A person who has been arrested; a person who is under arrest. [4]

arrestation -. The act of arresting or of making an arrest. [2]

de facto arrest (1966) Police custody in which the defendant does not feel free to leave, despite having been explicitly told that he or she may leave.

probable cause for arrest – reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime. — aka reasonable cause; sufficient cause; reasonable grounds; reasonable excuse.

knock-and-announce rule – officers must knock and announce their identity, authority, and purpose before entering a residence to execute an arrest warrant or search warrant. — aka knock-and-notice rule.

  • no-knock search warrant – a type of search warrant that authorizes exception to the knock-and-announce rule because a prior announcement would probably lead to the destruction of the objects searched for,  or compromise someone(s) safety.

posse comitatus – a group of citizens summoned by a sheriff or other peace officer to assist him in maintaining order or making an arrest. — Often shortened to posse.

Various Forms of Lawful Arrests:

warranted arrests – an arrest made under authority of a warrant.

  • arrest warrant – issued by a disinterested magistrate shown probable cause; directs a law-enforcement officer to arrest and take a person into custody. — aka warrant of arrest.
    • return of warrant – a return of an arrest warrant, by the officer to whom it was given, showing substantially that the officer operated within the scope of proper execution.
  • material-witness arrest – arrest and detention of a witness to a crime for the purpose of inducing the witness to provide material evidence to investigators or prosecutors.

warrantless arrest – a legal arrest, without a warrant, carried out by a peace officer or private citizen, when there’s absolute certainty or probable cause that a crime was committed by the suspect. — aka arrest without a warrant.

  • citizen’s arrest – an arrest by a private person on grounds that (1) a public offense was committed in their presence, or (2) they have reasonable cause to believe the arrestee has committed a felony.
  • civil arrest – arrest and detention of a civil-suit defendant until bail is posted or a judgment is paid; prohibited in most states.
  • parol arrest – ordered by a judge or magistrate from the bench, without written complaint, and executed immediately; often used in cases of contempt of court, etc.
  • rearrest – a warrantless arrest due to escape from custody, violation of parole or probation, or failure to appear in court.
  • turnover arrest – made by a security guard who holds the suspect, usually a shoplifter, until the police arrive and then turns the suspect over to them.

Various Forms of Unlawful Arrests:

arbitrary arrest – an arrest of a person without probable cause to believe the person permitted a crime.

dragnet arrest – a sweeping arrest of people suspected of possible involvement in criminal activity or a civil disturbance. — aka round-up; wholesale arrest.

false imprisonment – restraint of a person in a bounded area without either legal authority, justification, or consent. Restatement (Second) of Torts § 35.

malicious arrest – causing an arrest by maliciously bringing a suit upon false charges, or maliciously making a false affidavit.

Also see:

Supreme Court Rulings
re: Unlawful Arrests/False Imprisonment

pretextual arrest (1968) An arrest of a person for a minor offense to create an opportunity to investigate the person’s involvement in a more serious offense for which there is no lawful ground to make an arrest. — aka pretext arrest.

  • subterfuge arrest (1971) An arrest of a suspect for the stated purpose of obtaining evidence of one crime but with the underlying intent to search the suspect for evidence of a different crime. [1]


Disclaimer: All material throughout this website is pertinent to people everywhere, and is being utilized in accordance with Fair Use.

[1]: Justia Criminal Law Stages of a Criminal Case: https://www.justia.com/criminal/docs/stages-of-a-criminal-case.html

[2]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[3]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[5]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[6]: Charles H. Whitebread, Criminal Procedure 5 3.02, at 61 (1980).


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Similar terms possibly to be added in the future:

arrest in quarters – (1942) Military law. A nonjudicial punishment that can be given to officers and warrant officers only by a general, a flag officer in command, or an officer exercising general court-martial jurisdiction.  See BREACH OF ARREST.

house arrest – See HOUSE ARREST.

prison-gate arrest – (1903) English law. An arrest made as soon as a person who has been released from incarceration steps outside a prison’s walls or boundaries and is charged with other offenses committed before the person went to prison. — aka gate arrest.

arrestare – To make an arrest.

 arrestari et imprisonariTo be arrested and imprisoned.

 arrestatio navium – The arrestment of ships.

arrestentur corpora eorum – Their bodies shall be arrested.

arrest for debt – See imprisonment for debt.

arrest of ship – A temporary detention, without design of depriving the owner of the vessel, but to liberate or restore the ship or goods detained, or to pay the value thereof. 29A Am J Rev ed Ins § 1323.

arrestum – An arrest.

arretted -. Arraigned; accused. [3]