PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Chapter 3 Arrest and Custody This chapter examines the legal issues involved in arrests, custody, and interrogations. Topics discussed include: What constitutes an arrest? Terry type stops Force in effecting an arrest Miranda and its requirements Immunity from arrest Bookings Private persons arrest Citations

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Arrest The taking of a person into custody in the manner authorized by law. Arrested person may be subjected to reasonable restraints. There must be probable cause or a warrant to arrest. If the arrest is lawful, the person may be searched.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Two Elements of Probable Cause to Arrest by a Law Enforcement Officer There is reason to believe that a crime has been committed. And the person to be arrested committed the crime.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Authority to Arrest by a Private Person A private person’s authority to arrest is more restrictive in that a crime must have been committed.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Arrest Without a Warrant Most common form of arrest. Courts have held that to require a warrant for every arrest is impractical. Police generally may not enter a private home to make a warrantless arrest. Exception to above is when exigent circumstances exist.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Arrest Warrant A written order issued by a judicial officer upon a showing of probable cause commanding the arrest of a particular person. Some jurisdictions allow the use of telephonic arrest warrants.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Terry v. Ohio Developed the concept of differential intrusiveness. Where intrusiveness is minimal, the standard of reasonable suspicion is sufficient. Developed the concept of stop and frisk.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Temporary Detention Temporary detention for questioning is not an arrest. If police restraint goes beyond that which is reasonably necessary for questioning, an arrest may result. Detention is ordinarily for a fairly short duration before it becomes an arrest.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Temporary Detention Rules Police may temporarily detain a person if officer has a reasonable suspicion that criminal activity may be involved. The officer may pat down the individual for weapons ONLY if the officer has additional reasonable suspicion that the pat down is necessary for safety reasons.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Reasonable Suspicion Based on specific facts that can be articulated to a court. Less than probable cause. Cannot be based on “instinct” not backed by facts.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Warrantless Protective Sweep of a Residence Maryland v. Buie Sweep is legal if police have a reasonable suspicion that the residence may contain an individual who poses a danger to the officers or others. Should be quick and limited to a cursory visual inspection of those places where and individual may be hiding.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Jurisdiction to Make an Arrest Officer may make a private citizen arrest anywhere. Arrest by a law enforcement officer must be within the officer’s jurisdiction. Jurisdiction of an officer determined by legislative enactments. Federal officers have jurisdiction nationwide.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Uniform Act of Fresh Pursuit Uniform act adopted by most states. Allows an officer to cross state lines in “hot pursuit.” In most states it applies only to felonies. Individual arrested must, without unnecessary delay, be taken before a “local magistrate.”

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Use of Force in Effecting an Arrest Whatever non-deadly force that is reasonably necessary to overcome the resistance of the accused. Deadly force is restricted to the guidelines set forth in Tennessee v. Garner. Deadly force can only be justified as an absolute last resort and where the failure to stop poses a serious risk of bodily injury or death to others.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Calls For Assistance Officer or private person may call upon as many persons as necessary for assistance in making the arrest. Most states have statutes requiring individuals to assist the officer when requested by the officer. Failure to assist is generally a misdemeanor.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Resisting Arrest At common law, an individual had a right to resist an unlawful arrest. States by statutes have changed this right. Generally a person must submit to an arrest even if the arrest is unlawful.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Miranda Requirements For Miranda to apply, individual must be In custody Under control of law enforcement Not free to leave And be interrogated Interrogation is defined for this purposes as actions by an officer designed to elicit information from the suspect.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Miranda’s Four-prong Test If Miranda applies, a court looks at: Was statement voluntary? Was the warning given? Was there a wavier by the suspect? Was the waiver intelligently and voluntarily made? All above questions must be answered in the affirmative to admit statement.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Admissible Confession Requirements Must be given knowingly and not result of lies or deception. If in custody, must be given required warning. Must be voluntary. Not obtained through threats, force, use of pain, or constructive threats.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Miranda Exceptions A voluntary statement taken without the required Miranda warnings may be used to impeach a witness. Harris v. New York Undercover officer posing as a friend or inmate does not need to give the warning because of the lack of a coercive atmosphere. Fruit of poisonous tree doctrine does not apply to Miranda violations as long as statement is voluntary.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Booking Consists of Recording the arrest in law enforcement records Fingerprinting Photographing Generally, the suspect has a right to make a call during the booking process or shortly thereafter.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ Citations Generally used in misdemeanor cases in lieu of an arrest. Also referred to as a summons. Must contain a written notice to appear in court. Used frequently in traffic cases.