Criminal Law: The Arrest

Probable Cause & Arrest Warrants

The laws regarding who can make an arrest depends on whether the police have sufficient evidence that a crime was committed. Officers responding to an auto accident may need to investigate the scene in an effort to determine if someone was criminally liable. According to statistics released by the National Highway Transportation and Safety Administration (NHTSA), over six million motor vehicle accidents occur every year in America. More than 30,000 people are killed annually and a large percentage of these occur due to distracted drivers, negligent operators or individuals who drive their vehicle while under the influence of drugs or alcohol.

Law enforcement can make the arrest if they have reasonable suspicion a person was driving drunk.

What Constitutes Probable Cause?

Understanding what constitutes probable cause is important so that people are aware of their rights and know when police have overstepped their boundaries. Probable cause must be based upon factual evidence, not just suspicion.

Probable cause can be placed into four different categories:

Circumstantial Evidence

This is known as indirect evidence in which officers have reason to believe that a crime has been committed but they do not have direct proof.

Police Observation

Officers are trained to notice anything out of the ordinary. Suppose they observe a person walking down a street in Miami wearing a long trench coat. This is out of the ordinary because they are overdressed for the weather. Police can detain the person upon the suspicion that they might be carrying a concealed weapon. Any type of criminal pattern, such as a car continually circling a neighborhood, is suspicious activity.

Expertise and Training

Cops are routinely trained to be on the alert for certain gang activities. They have skills that allow them to detect when criminal activity is about to occur. If they spot a gang member hanging out in an unusual place, like in front of an upscale jewelry store, they can briefly detain and question the suspect.

Information from the Public

Any statements made by people who witnessed or were the victim of a crime is enough to question a suspect. The police often use informants to tell them about an upcoming drug buy that may be occurring.

Probable Cause in Domestic Violence Situations

When a police officer suspects that a crime has been committed, they must have probable cause to make the arrest. The laws in each state vary regarding how domestic violence cases are handled. For example, in the state of Florida, if a spouse calls 911 to report they are being abused, the officers have a choice of whether an arrest will be made. Quite often they will request that one party be physically separated from the other until things cool off. There are several states that require the officers to make a mandatory arrest if they have probable cause to believe that a crime of domestic violence occurred. The states that have the strictest laws include the following:

Local police officers will often interview both parties in a separate location to determine who is telling the truth. If there are children involved who are at a reasonable age, they may question them as witnesses. The District Attorney does not need the victim to testify against the defendant in order to bring a criminal case. They only need the report from local law enforcement officials to pursue and prosecute the case.

Warrantless Arrests

Police officers normally need a warrant that has been signed by a judge before they can legally place an individual under arrest. However, there are some circumstances that allow the police to make an arrest without a warrant. The police can enter a home without a warrant if the person voluntarily consents to let the officer in. If the police see something illegal in plain view, such as marijuana, they can make an arrest. If the individual later claims they did not voluntarily give consent, the police or prosecutor must prove that it was voluntary. The court will consider the following factors when making a determination:

• The age of the individual
• Their fluency in English
• Intelligence and education level
• Knowledge of the criminal justice system
• Their knowledge regarding the right to refuse
• If the police made threats or displayed a weapon directly intimidating the person

In certain situations, an officer must have probable cause before they can perform a search or place someone under arrest.

Continued: Part Two: DUI Arrests, Miranda & Police Tactics

Next Steps

3. After an Arrest for a Crime
4. First Court Hearing
5. Defense Options Before Trial

Facing a Criminal Charge?