What is an Arrest?

What is an Arrest?

It happens all the time when we are discussing a client's pending charges for a traffic, misdemeanor or ordinance violation: we ask about his/her arrest, and the response is "I wasn't arrested." Obviously, a different understanding exists between what law enforcement, lawyers, and your typical citizen all believe constitutes an "arrest." If you thought you knew, then read on, as you probably have a much different understanding about what constitutes an arrest.

Place Your Hands on the Police Car!

Obviously, some situations clearly constitute an arrest, just like you see in the movies or on TV: the offender is having the handcuffs slapped on as the arresting detectives or officers announce "you are under arrest" and then begin reciting what is known as the Miranda warnings. You have heard them many times before on TV: "You have the right to remain silent, anything you say can be used against you in a court of law, you have the right to have an attorney present during any questioning, if you cannot afford an attorney, one will be provided for you by the court," and so on. However, not all arrest situations follow this stereotypical scenario and it is possible to be arrested and not even realize that it ever happened.

Let us say you are operating an automobile, and you are pulled over for speeding. The officer asks you for your driver's license and proof of insurance. He then orders you to wait in your car and he walks away, then reenters his squad car. He runs your information and upon his return some 5-10 minutes later, he hands you a uniform traffic citation charging you with speeding. The police officer has taken your driver's license as your "bond" and you have been provided with court date information. Believe it or not, you were just "arrested" and you did not even know it because your time "in custody" was very short lived.

Are You "Free to Leave"?

So, what is an arrest? Simply put, it is any time an individual's freedom of movement has been restricted or denied by a law enforcement officer, such that a reasonable person would not feel that in the moment they are "free to leave". That is what equals an arrest. One does not have to have the cuffs slapped on or weapons drawn or have Miranda warnings read in order to be "arrested." When an officer exerts his or her authority to "hold" you and you cannot leave, you have been arrested. If you have been detained even for just a moment, then that constitutes an arrest by operation of law.

Your 4th Amendment Rights & The Exclusionary Rule

So why is this important? Because despite the ongoing efforts of some to gut the 4th Amendment of the U.S. Constitution (and relevant sections of Illinois or other state constitutions) in order to further erode your civil rights, you do in fact still have a constitutional right to be protected from "unreasonable searches and seizures". When such an unreasonable search or seizure has taken place, something called the "Exclusionary Rule" applies to evidence discovered by police after making an arrest that was not based upon proper lawful authority.

What is the Exclusionary Rule? How does it help me? If at the time you were objectively "under arrest" the police lacked the required amount of "probable cause" to believe that you were committing a crime in their presence or that you had just committed a crime or that you were about to commit a crime, then any evidence the police obtained improperly may be subject to a court order suppressing and barring the State from using that evidence at a trial on the merits. This can mean the difference between being convicted of a crime or being set free.

The 4th Amendment to the United States Constitution does not specifically mention excluding evidence that was illegally seized. In fact, the 4th Amendment merely directs that we are to be free from unreasonable searches and seizures and that no warrants shall issue absent a specific showing of probable cause to a neutral magistrate or judge that specified evidence of crime will be found in a specified place. The law does not allow for “general search warrants” which existed during Colonial times and were utilized by British Troops to search premises without any actual proof of crimes being committed against “The Crown.”

So, for a long time, reasonable searches were predicated upon a warrant, properly issued. However, with the invention of the automobile, and the ability to transfer goods swiftly from one point to another, it became impractical to always get a warrant before searching property. During the days of Prohibition, “Moonshiners” (those who produced illegal whiskey) used automobiles to transport their product and it was impossible for police to be able to obtain search warrants in a timely fashion. The United States Supreme Court in the case of United States v. Carroll, created what is now known as the “Automobile Exception” to the 4th Amendment’s warrant “requirement.” The court held that as long as the officers have individualized reasonable grounds to believe that the vehicle is transporting contraband, no warrant need be obtained in advance of a search.

The Automobile Exception was further expanded upon in the case New York v. Belton, where a person was placed under arrest for an unrelated offense and the police searched the interior of the vehicle and found a pistol hidden in the dashboard of the passenger compartment. The court held that police may conduct a search of the “immediate reach and grab” area incident to a lawful arrest. The logic of this ruling was extended to include an arrest in a private home (California v. Robinson) based upon the execution of an arrest warrant. The exception to the search of the immediate reach and grab area is, of course, when the initial arrest itself was unlawful.

Not every police encounter, where one is stopped and held temporarily, constitutes an arrest. In the case Terry v. Ohio, the Supreme Court held that if an officer sees suspicious behavior that leads one to believe that criminality may be “afoot,” that an officer can temporarily detain and question the individual(s) involved. If the officer has reasonable grounds to believe the person is armed and dangerous, a protective pat down of their outer clothing may be conducted to determine if they possess a dangerous weapon. If the questioning does not lead to further evidence of a crime, the officer is to end the encounter.  But if further evidence of crime is found, then a full arrest will ensue.

In the Terry case, an officer spotted several men standing outside a jewelry store and their behavior led him to believe they were “casing the joint” to commit a robbery. After he conducted a protective pat down, he recovered a gun on one of the men. The Court held that this was appropriate and “reasonable” under the circumstances. The Terry case has led to hundreds, if not thousands, of cases that hinged on issues such as “did the officer reasonably believe criminality was afoot” or “did the officer have reason to believe the suspect was armed and dangerous,” and “did the officer reasonably believe that the quarter ounce of cannabis in a plastic bag in a man’s pants pocket was actually a weapon”.

When the arrest is deemed unlawful, and a search incident to that arrest discloses the presence of contraband, the Exclusionary Rule can apply to bar the use of the unlawfully obtained evidence in court. This is referred to as the “fruit of the poisonous tree”. The purpose of the Exclusionary Rule is not to reward a criminal suspect or to punish society at large: the purpose of the rule is to create a deterrent to police against making what they know are unlawful arrests and searches. Recently, there has been a push against that policy, as courts must now weigh the benefit of the rule against the detriment to society and how the rule affects the courts “truth-seeking” function. Some recent decisions have denied the application of the Exclusionary Rule where the courts determined that to apply it under certain facts would not serve its stated purpose as a deterrent, that it would unduly hamper a prosecution, or interfere with a just outcome. The courts have gone so far as to say that because we as individuals can sue police officers in civil court for violations of our 4th Amendment Rights, that serves as a sufficient deterrent to unlawful arrests, searches and seizures. Still, in most cases, the courts will order the suppression of evidence if it was obtained due to an unlawful arrest.

Speak to a Chicago Criminal Lawyer Now

There are many ways that a person may be arrested. Having your door kicked in by police yelling "warrant!", police outside your home pointing weapons, throwing you down, handcuffing you, and dragging you off, or being pulled over in your car are just some of these. But whether you were released after being fully processed at the station, or held in a lock-up for some time, or simply allowed to leave at the scene of the traffic stop with your tickets, you were indeed arrested, and you need the services of a lawyer to help sort your case out. Call us here at Mitchell S. Sexner & Associates LLC for a free, no cost, completely confidential, no obligation consultation today.

Written by Mitchell S. Sexner Last Updated : August 4, 2020