Laws and Procedure before Making an Arrest

Published 15 Aug 2016

Requirements under the United States Constitution

The Constitution requires that before an arrest or search is made, the law enforcement officers first have to secure an arrest warrant or search warrant from the court. For example, if the crime is possession of illegal drugs, the law enforcement officers before they could enter the house of a suspect, must first obtain a search warrant from the court. Once this is obtained they can immediately conduct the search. The same requirement applies before an arrest is made. The law enforcement officers must secure a warrant of arrest by presenting evidence before the court that the person is responsible for the crime.

The Fourth Amendment is the primary law which deals with the procedure the must be observed before conducting an arrest (“US Constitution: Fourth Amendment”). There are, however, certain requirements that must be complied with before an arrest warrant is issued. These are: a) it must be based upon probable cause; b) the probable cause must be determined personally be the judge; c) the determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce; d) it must particularly describe the persons to be seized.

Probable cause is defined as such facts or evidence that would lead a reasonable person to believe that a crime has been, is being, or will be committed and the person arrested is responsible. Probable cause is satisfied if it is apparent from the facts set out in the affidavit of witnesses that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, and there is probable cause justifying the issuance of a warrant.

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Another requirement prior to the issuance of the warrant of arrest is that the probable cause must be determined personally by the judge. The Supreme Court has stated that the warrant of arrest must be issued by a neutral judicial officer or magistrate (The United States v. Lefkowitz, 285 U.S. 452, 464). This requirement is made in view of the fact that law enforcement officers in their zealousness to perform their functions often lose their impartiality and neutrality. When this happens the citizens are at the mercy of law enforcement officers. Thus, to ensure that the intrusion of a person’s privacy is not done arbitrarily by the government, a judge or magistrate is given the responsibility of determining when a warrant of arrest should be issued.

The third requirement is that the affidavits submitted must be under oath or affirmation. This serves to guarantee that the witness has personal knowledge of the crime. Its purpose is to protect the person whose arrest is being sought against harassment by law enforcement officers and witnesses.

The constitution also requires that the place to be searched or the persons or things to be seized must be described with particularity so as to enable the person serving the warrant to identify them. Failure of this requirement may result in erroneous or possibly the arbitrary enforcement of the warrant. Thus, the person sought to be seized should be identified by name. If the warrant is issued without a name or with a name in blank then it cannot be enforced against any person. This makes the warrant void. Thus a warrant issued against “John Doe” has been held to be insufficient and illegal. Though “John Doe” warrant has been held to be invalid, the constitutional requirement of particularity will be satisfied if it will be accompanied by a description of the person about to be arrested so as to enable the arresting officer to identify the accused. For example, if the name of the accused is unknown then the John Doe warrant must be accompanied by the person’s physical description or by the description of his place of residence to make the warrant valid.

To reiterate, the state has inherent power to arrest a person pursuant to the concept of police power. But the US Constitution has four requirements that must be complied with before a valid search warrant may be issued. These requirements are: a) it must be based upon probable cause; b) the probable cause must be determined personally be the judge; c) the determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce; d) it must particularly describe the persons to be seized.

Miranda Warning

As soon as an arrest warrant is issued, law enforcement officers may immediately arrest the person whose name appears in the warrant. There are however certain requirements which must be complied by law enforcement officers at the time they make an arrest. These requirements have been pronounced in the case of Miranda v. Arizona 384 U.S. 436 (1966).

he facts of this case are as follows: On the night of March 2, 1963, an 18-year-old woman while walking alone was suddenly approached by a man named Ernesto Miranda. Miranda suddenly grabbed her and ordered her not to make any noise. The girl begged her attacker to let her go. Miranda instead tied her hands and ankles and pushed her into the backseat of his car. Eventually, he raped her. Based on victim’s statements the police began looking for a Mexican that fits the description of what the girl told them. The investigation led them to Mr. Ernesto Miranda. He was eventually arrested and taken directly to a police station in Phoenix Arizona for questioning. There he was lined up together with three other suspects. Ernesto Miranda was identified by the victim.

e was subsequently taken inside the interrogation room where he was questioned about the crime. At the interrogation room, Miranda was not advised of his right against self-incrimination which is protected under the Fifth Amendment. He was also not given the opportunity to consult with his lawyer which is protected under the Sixth Amendment. Initially, Miranda maintained his innocence but after more than two (2) hours of intense questioning, he admitted to the crime. Afterward, he was made to sign a written confession of guilt. It was alleged in the confession that he made the confession voluntarily and that he was advised of his rights even though this was not clearly spelled out in the confession.

At the trial, the written confession was admitted into evidence over the objection of his counsel. The counsel questioned the police procedure of getting the confession from Miranda and argued that his written confession was inadmissible in evidence. The police officers who arrested Miranda and who extracted the confession admitted that they did not inform Miranda of his rights under the constitutions nor was he advised of his rights to an attorney. Despite this, Miranda was subsequently found guilty of kidnapping and rape. The case was appealed to the Arizona Supreme Court. It affirmed the lower court’s ruling. A request for certiorari to the Supreme Court of Arizona was later filed with the US Supreme Court.

The issues, in this case, are whether 1) Whether or not the accused has the right to be informed of his right to consult with an attorney during custodial investigation; and 2) whether or not evidence taken from the suspect during custodial investigation without being informed of his right to counsel is admissible in evidence.

He US Supreme Court ruled that the right against self-incrimination extends to the custodial investigation. When the interrogation is no longer a general inquiry into the circumstances of an unsolved crime but has centered on a particular suspect, custodial interrogation has commenced and the right against self-incrimination starts. Law enforcement officers during custodial investigations are required to ensure that at the time of the arrest the suspect has been informed of his rights. These are the right to be informed of their right to remain silent; that anything they say can and will be used against them in court; that they have the right to an attorney and if they cannot afford an attorney, one will be provided free of charge by the state. This was subsequently called the Miranda warning.

Hus, pursuant to the case of Miranda v. Arizona, law enforcement officers must at the time of the arrest and prior to the time any confession is made or any statements are given by the accused, must inform an accused that he has the right to be informed of his rights, that he has the right to remain silent; that anything he says can and will be used against them in court; that he has the right to an attorney and if they cannot afford an attorney, one will be provided free of charge by the state.

He purpose of the Miranda warning is to protect a person who is suspected of a crime and who is under custodial investigation from making incriminating statements in front of the police officers. The law has the noble purpose of ensuring that the statements uttered by the suspect who is under custodial investigation are not used against him. This protection is necessary by virtue of the very nature of custodial investigations. A person who is under investigation is typically taken to the police headquarters where he is isolated from everybody. The suspect is usually surrounded by police officers who all have one purpose – to get a confession. These police officers will say anything and will do anything just to extract from the suspect any evidence that can be used against him. Resorts to threats and use of force may be made by the police officers to the prejudice of the suspect. The environment is, therefore, hostile and intimidating such that the person may be forced to admit to a crime which he did not commit.

Exclusionary Rule

The concept of Exclusionary Rule is important because it serves to implement the safeguards enunciated under the Fourth Amendment and the Miranda v. Arizona case. If law enforcement officers are able to obtain a written confession or admission from the suspect during the time of the arrest, it does not follow that the same will be admissible as evidence in court. Indeed, it will have to be tested whether all the requirements before the arrest have been satisfied. If any of the requirements under the Fourth Amendment did not comply with or the Miranda warning was not explained, then the written admission will not be admissible as evidence.

In this regard, the Exclusionary Rule is not a constitutional right but it is a rule of evidence. It prohibits the admission in court of any evidence obtained in violation of the Fourth Amendment. It serves to give flesh and blood to the Fourth Amendment by giving the courts the authority to render inadmissible any evidence that is illegally obtained. It also serves to implement the declaration by the Supreme Court that the Miranda warning must be given to the suspect otherwise the evidence obtained will not be admitted in court.

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