Lawful Arrest/Search/Seizure Guidelines

This topic provides information about the elements of
a Lawful Arrest, and Lawful Police Actions in general,
including detainment, search, seizure.

The following is the U.S. Constitution fourth amendment rights regarding Lawful Arrest/Search/Seizure.

U.S. Constitution's Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



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Arrest, Search, and Seizure Breakdown

Arrest without warrant:

A police officer may make an arrest only after first obtaining a warrant for the arrest, except as authorized below.

1. An arrest without a warrant may occur in the following situations:

A. When an offense has occurred and the offender attempts to depart the State, arrest of the offender may occur pursuant to the Court's oral order, or without an oral order if the Court could not act before the departure.

B. A police officer may arrest a person whom he views committing an offense.

2. Following commission of an offense a police officer who has reasonable grounds to believe that a particular person has committed the offense may arrest the person.

3. When a police officer is not certain that an offense has occurred he may arrest and detain for examination a person whom he finds under circumstances which justify a reasonable suspicion that the person has committed, or intended to commit, a felony.

Cause and authority:

At or before making an arrest a police officer makes a reasonable attempt to inform the arrested person of the cause and authority of the arrest.

Possession of warrant:

Following issuance of an arrest warrant a police officer may make an arrest without having the warrant in his possession. If after arrest an arrested person requests to see the warrant for his arrest, the police show it to him as soon as practicable.

Force:

If an arrested person refuses to submit or attempts to escape, the arresting officer may use the force necessary to compel submission.

Search and seizure:

Without issuance of a search warrant a police officer making an arrest may seize from an arrested person an offensive weapon on his person and search the person arrested and the premises where the arrest occurs, to the extent the arrested person controls the premises, for an instrument, the fruits, and evidence of the offense for which he makes the arrest which he may seize.

Forcing entrance:

To make an arrest following refusal of a person within to allow entrance a person making an arrest for a felony committed in his presence, or a police officer making an arrest, may force entrance to a building or ship. Before breaking a door or other barrier he demands entrance in a loud voice and states that he wants to execute a warrant of arrest or an oral order of the Court. If arrest would be lawful without a warrant, he states that fact in a loud voice. A demand and statement are in a language believed to be understood by the occupant.

The well-recognized exceptions to the warrant requirement are:

1. Reasonable Suspicion of Criminal Activity – Officers may seize and/or detain a person for a reasonable amount of time if they have a reasonable suspicion that the person is engaged in criminal activity. They may NOT conduct a full blown search or pat-down but they can require the individual stop what he/she is doing and speak with them as part of their investigation. If further information supports a reasonable believe that the person is armed and dangerous, a pat-down of the outerwear may be conducted. A full-blown search or even going into pockets may not be done unless additional suspicion or information is obtained from the pat-down, i.e. feeling handgun in waistband.
2. Consent – an individual can always consent to governmental intrusion on their privacy. This can either be explicit (written or verbal consent) or implicit (based upon actions and reactions)
3. Incident to Arrest – Law enforcement may search a person or the immediate “grab area” of a person incident to a lawful arrest.
4. Probable cause + Exigent Circumstances – if there is insufficient time to obtain a warrant, law enforcement may seize a person or search so long as they have probable cause to believe evidence of a crime will be discovered and a legitimate emergency situation exists justifying the immediate search.
5. Automobile Exception – If the police have probable cause to believe that evidence of a crime will be discovered within a vehicle, the mobility of the vehicle, creates the emergency circumstance explained in number 4 and the police do not need to wait to obtain a warrant.
6. Inventory – The police may search a vehicle that they lawfully impound in order to conduct an inventory of its contents for “safe keeping.” If this reveals evidence of criminal activity, that evidence is legally obtained so long as the impound was legal and the inventory procedures were proper and were complied with.