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Arrest: is taking custody of another and thereby depriving him of his liberty by assertion of legal authority for the purpose of holding or detaining him to answer a criminal charge.

Arrest warrants are usually not required as long as the police officer has probable cause for the arrest. There are two situations where an arrest warrant is required:

  1. A felony arrest made without exigent circumstances from a private home; and

  2. A misdemeanor arrest made outside the presence of the officer or victim.

An illegal arrest does not, in and of itself, bar the prosecution of the defendant. An illegal arrest, however, could cause the exclusion of evidence or a confession that derives from the arrest.

Detention: The seizing of another and depriving him of his liberty based on "reasonable suspicion" of criminal activity for a limited period of time in order to dispel the suspicion or establish "probable cause" for arrest.

Click on the case titles to link to the full case decision.

Sorrells v. U.S., 287 U.S. 435 (1932)-"...the defense of entrapment can be maintained only where, as a result of inducement, the accused is placed in the attitude of having committed a crime which he did not intend to commit, or where, by reason of the consent implied in the inducement, no crime has in fact been committed."

Beck v. Ohio, 379 U.S. 89 (1964)-A person's criminal record can be used as an element of probable cause for an arrest. It, however, cannot be the main reason for an arrest. In this case, the officer received unspecified information and reports of the defendant's criminal activity. The officer knew what the defendant looked like. He stopped the defendant on traffic and arrested him based on the unspecified information and his criminal record. Evidence was found during a subsequent search. The USSC ruled that the officer lacked probable cause to arrest the defendant.

Sibron v. New York, 392 U.S. 40 (1968)-Absent any other information, the association with known drug addicts is not probable cause to search. The claim of search incident to arrest is also not justified because there was no probable cause before the search.

Davis v. Mississippi, 394 US 721 (1969)-The Fourth Amendment rights apply to involuntary detentions during the investigatory stage as well as the accusatory stage. The compelling of a person to be confined in jail overnight, questioned and fingerprinted in order to establish probable cause, rather than being based on it, violated the person's Fourth Amendment rights.

Whiteley v. Warden, 401 U.S. 560 (1971)-An arrest or search made by officers relying on relayed police information, a teletype, a bulletin, a warrant, etc. is only valid if the issuing officer had probable cause to make the arrest or search. It is irrelevant that the officers reasonably assumed the issuing officer had probable cause.

US v. Grill, 484 F.2d 990 (5th Cir. 1973)-Grill was arrested and placed in jail. During the jail search and inventory of his property a key was found. The key was logged in for safekeeping. Investigators located a duffle bag in the Bahamas reported to belong to Grill. The bag was padlocked and was booby trapped with an explosive. The padlock was taken to the jail where Grill was held. The investigator, without a warrant, retrieved the key from Grill’s property and tested it in the lock. The key worked. The court held that the warrantless removal of the key from Grill’s property and using it in the lock was reasonable. The court further stated that the key was located and logged into property at the time of booking. The investigator was only interested in the key. The investigator was not doing an exploratory search to find undiscovered items hidden among Gill’s property.

US v. Robinson, 414 U.S. 218 (1973)-A police officer can conduct a search incident to arrest that can go beyond just a pat frisk. The search is also not restricted by the nature of the offense. In this case, the defendant was arrested for driving with a revoked license. The officer searched a cigarette pack and found heroine.

U.S. v. Edwards, 415 U.S. 800 (1974)-"Once an accused has been lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing, on the one hand, and the taking of the property for use as evidence, on the other."

US v. Santana, 427 U.S. 38 (1976)-Police went to Santana's house to arrest her on probable cause.  They observed her in the doorway of her residence.  the "doorway" of her residence is considered a public place as far as the fourth amendment is concerned.  Santana ran back into her residence.  The officers gave chase and caught her inside the residence.  The officers were "in hot pursuit" of Santana and, therefore, the arrest was lawful. Since the arrest was lawful, so was the subsequent search incident to arrest.  This case established that the "hot pursuit" of a wanted felony suspect from a public place into his or her residence to make a warrantless arrest is justified. 

US v. Watson, 423 U.S. 411 (1976)-The court declined to require an arrest warrant to arrest a felony suspect on probable cause in a public place.

US v. Chadwick, 433 US 1 (1977)-A double-locked footlocker seized by federal agents could not be searched incident to arrest after it had been removed to a federal building and the suspects were incarcerated elsewhere. Minus exigency, the agents were required to obtain a search warrant.

Dunaway v. New York, 442 US 200 (1979)-The involuntary seizing of a person from his home without probable cause and compelled him to go to the station for interrogation violated the person's Fourth Amendment rights. The Miranda rights advisory does not overcome the taint of the illegal arrest. Factors that should be considered in determining whether a confession was obtained by exploiting an illegal arrest are:

Payton v. New York, 445 US 573 (1980)-A warrant based on probable cause is required to arrest a felon inside a private home. The only exception is under exigent circumstances.

Rawlings v. Kentucky, 448 U.S. 98 (1980)-Officers were executing a search warrant. Officers searched Ms. Cox's purse and found drugs. Rawlings admitted the drugs were his. He was searched then arrested. Once he admitted ownership of the drugs found in Cox's purse, the police had probable cause to arrest him, and where the arrest followed quickly after the search of petitioner's person it is not important that the search preceded the arrest, rather than vice versa. Rawlings also did not have an expectation of privacy in Cox's purse.

Steagald v. U.S. 451 US 204(1981)-Absent a consent or exigent circumstances, a search warrant is needed to arrest someone from the home of a third party.

Illinois v. Lafayette, 462 U.S. 640 (1983)-The inventory of the personal property of an arrested person is its own justification for the search. There is no need for a showing of probable cause. The court further stated in part, "...every consideration of orderly police administration - protection of a suspect's property, deterrence of false claims of theft against the police, security, and identification of the suspect - benefiting both the police and the public points toward the appropriateness of the examination..."

United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.)(1984)-EXIGENT CIRCUMSTANCES- Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.'

Hayes v. Florida, 470 US 811 (1985)-Without probable cause, consent, or judicial authorization, the investigative detention of a person for the purpose of taking him from his home to the station for fingerprinting violated the Fourth Amendment. The court further added that the police can fingerprint a suspect (not arrestee) under the following circumstances:

County of Riverside v. McLaughlin, 500 U.S. 44 (1991)-The court established a requirement that there be a post-arrest hearing to determine if there was probable cause to arrest. As a general rule, the hearing must be held within 48 hours. This is the case that created the probable cause affidavit that police fill out on each arrest.

California v. Hodari, 499 US 621 (1991)-Hodari saw the police approaching. He ran away. A police officer chased him. Prior to catching him, Hodari threw down crack cocaine. The court ruled that Hodari was not seized and his rights not violated when he threw the cocaine down. At the time, he was neither physically forced to submit nor voluntarily submitted to the police authority.

U.S. v. Anchondo, 156 F.3d. 1043 (10th Cir. 1998)-A search incident to arrest can occur before the actual arrest takes place. The search and the arrest must be contemporaneous to each other. The court further stated that an officer can search a person if a canine alerts on the vehicle the person occupied, but no drugs were found in the vehicle. If the probability of drugs deminishes in the vehicle, then it increases for drugs being on the person.

US v. Gay, (10th Cir. Court)(2001)-A police officer only needs to reasonably believe that a person lives at a particular residence at the time of entry to arrest on a warrant. This reasonable belief is less than reasonable suspicion.

Lawrence v. Texas, 539 U.S. 558 (2003)-The case struck down the sodomy laws across the country. Individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process.

Maryland v. Pringle (000 U.S. 02-809) (2003)- "In this case, Pringle was one of three men riding in a Nissan Maxima at 3:16 a.m. There was $763 of rolled-up cash in the glove compartment directly in front of Pringle. Five plastic glassine baggies of cocaine were behind the back-seat armrest and accessible to all three men. Upon questioning, the three men failed to offer any information with respect to the ownership of the cocaine or the money. We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly." The subsequent questioning and confession from Pringle was admissible.

Small V. US (000 U.S. 03-750)(2005)-Criminal convictions equivalent to a felony that occur in a foreign country cannot be considered when a person purchases a gun in this country.

US v. Finley, 477 F.3d 250 (5th Cir. 2007)-Police can search the internal phone records and text messages on a cellular phone seized from a person during a lawful arrest as a search incident to arrest. No warrant is needed.

Shepard v. Davis, 07-11307 (11 Cir. 2008)-We reaffirm that the warrantless arrest of a person in his home, with neither consent nor exigent circumstances, violates the Fourth Amendment. We repeat what we held in Edmondson, that is, a person does not consent to a warrantless arrest in his home merely by opening the door in response to the demands of law enforcement officers. Construing the facts, as we must, in the light most favorable to Shepard, Officer Budnick violated Shepard’s Fourth Amendment rights by entering his home without a warrant, pushing Shepard six feet further into his living room, and arresting him on his couch without a warrant. A reasonable officer would have had fair and clear notice that such actions were objectively unreasonable on August 5, 2002. For these reasons, we conclude that the district court erred in granting Officer Budnick’s motion to dismiss based on qualified immunity from Shepard’s § 1983 suit.

Stufflebeam v. Harris, 06-4046 (8th Cir. 2008)-The Court held: Police could not arrest a passenger in a vehicle simply because he did not comply with the officer and show identification. The officer needs reasonable suspicion that the passenger is engaged in criminal conduct before compelling him to show identification. The Court stated, "...arresting Stufflebeam, a passenger not suspected of criminal activity, because he adamantly refused to comply with an unlawful demand that he identify himself. No reasonable police officer could believe he had probable cause to arrest this stubborn and irritating, but law abiding citizen.

Riley v. California, 13-132 (SCOTUS 2014)-The Court held that police cannot conduct a search incident to arrest of a cellular phone.

1. Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.

2. Officers can seize the phone and take necessary steps to ensure the information on it is not remote wiped.

3. The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.”

4. A cellular phone is a device with large data storage capacity. It contains information that goes way beyond the limited contents of a person's pockets. It contains months if not years worth of email, photographs, maps, calendars, voice recordings, text messages, diaries, financial information, and etc.

5. The information range of cellular phones also would allow the police to intrude into the privacy of a person beyond the information on the just phone to information stored on remote computer servers.

The vast amount of data that could be collected by police through a person's cellular phone necessitates the need for a search warrant in all but a few unforseen exigent circumstances.

US v. Nora, No. 12-50485 (9th Cir 2014)-Officers saw Nora standing on the sidewalk by his house. As they approached him he had moved to his porch. The officers saw a handgun in his hand. He entered his house and shut the door. The officers called for backup. Over twenty officers surrounded his house and a helicopter watched from above. The officers ordered him out of the house at gunpoint. They arrested him for the misdemeanor offense of carrying a firearm in public. The officers did not know Nora or that he had a felony conviction at the time of arrest. They searched him and found drugs. They questioned him. He admitted to more drugs being in the house. The officers got a warrant and searched his house. They found distribution quantity of cocaine, methamphetamine, and numerous firearms in the house. The Court held that Nora was unlawfully arrested out of his house in violation of Payton v. New York. It was a minor offense and there were no exigent circumstances justifying the warrantless arrest from his home. The drugs found on him and his statement were excluded. The officers did not name specifically in the search warrant that they were looking for the pistol they saw Nora with. The search warrant only mentioned any firearm. The Court invalidated the entire search warrant.

Maresca v. Fuentes, No. 14-2163 (10th Cir 2015)-Fuentes, a new officer, ran the Marescas' vehicle tag on her in-car computer. She entered the tag number incorrectly. The tag she ran checked to a stolen vehicle that had a different description than the Marescas' vehicle. She did not check the vehicle description before conducting a high-risk felony traffic stop on the vehicle with other officers arriving to assist. The Marescas sued for false arrest and excessive force. Fuentes claimed that they were not arrested, but placed in investigative detention.

The Court held: Ordering people out of a vehicle at gunpoint and proning them on the ground, then handcuffing and securing them in a patrol car without any factual reason to believe they were armed and dangerous is beyond a Terry type investigative detention and is an arrest. Further, Fuentes could not rely on an unreasonable mistake of facts to develop probable cause. She had exculpatory evidence on her computer in the vehicle description which she failed to read. The arrest was unlawful and Fuentes was not entitled to qualified immunity.

Caetano v. Massachusetts, 577 US ___ (SCOTUS, 2016)-Caetano was carrying a Taser for protection from an abusive ex-boyfriend. She was contacted by police after a friend she was with was arrested for shoplifting. The officer asked to look in her purse. She gave permission. A Taser was found. Massachusetts had a law making it illegal to possess stun guns. Caetano was arrested. She claimed she was carrying the Taser as a Second Amendment right. The lower courts denied her claim and said that the Taser was not covered by the Second Amendment. The Supreme Court held that the Second Amendment does extend to stun guns.

US v. Phillips, 14-14660 (11Cir 2016)-A writ of bodily attachment for unpaid child support is a
warrant for purposes of the Fourth Amendment. Police can arrest on a civil warrant and can conduct a search incident to arrest.

Dist. of Columbia v. Wesby, No. 15-1485 (SCOTUS 2018)-Officers went to a vacant house on a disturbance. They arrived and found numerous people inside having a party. The officers contacted the owner and was advised that no one had permission to be in the house. The officers arrested the partygoers for unlawful entry. Several partygoers sued for false arrest claiming that they did not know they were not allowed in the house. The district court held that the officers did not have probable cause to arrest the partygoers and the officers did not have qualified immunity. The D.C. Circuit affirmed the lower court's decision.

The US Supreme Court reversed holding The panel majority failed to follow two basic and well established principles of law.  First, it viewed each fact "in isolation, rather than as a factor in the totality of the circumstances."  Second, it believed that it could dismiss outright any circumstances that were "susceptible of innocent explanation.