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CHAPTER FIVE
SEIZURE OF PERSONS: ARREST
Learning Objectives
After studying this chapter, students should be able to:
1. Understand that arrests are a vital tool that can help law enforcement officers catch the
2. Know that the Fourth Amendment’s reasonableness requirement requires both probable
cause before, and a reasonable execution during and after, arrest.
4. Know that officers can use both direct information and hearsay to build probable cause.
6. Understand that officers can use only the amount of force that is necessary to get and
maintain control of suspects they have probable cause to arrest.
7. Know that after an arrest, felony suspects usually are taken to the police station for
booking, photographing, and possible interrogation and identification procedures;
misdemeanor suspects usually are released.
Lesson Plan
I. Introduction
Learning Objective 1: Understand that arrests are a vital tool that can help law enforcement
officers catch the guilty and free the innocent, but that the noble end of crime control doesn’t
justify unreasonable arrests.
Learning Objective 2: Know that the Fourth Amendment’s reasonableness requirement requires
both probable cause before, and a reasonable execution during and after, arrest.
Media Tool
“Arrests and Probable Cause” http://www.nolo.com/legal-encyclopedia/criminal-arrests-
and-probable-cause
o Nolo website discussion of arrest, probable cause, and related issues.
o Discussion: How do the definitions on the website explain arrest? What issues
related to arrest are discussed? Do you agree with the answers?
Class Discussion/Activity
What does it mean when we say that arrests are a zone? How many different types of
arrests can you think of?
A. Arrests are a vital tool to help law enforcement officers catch the guilty and free the
innocent, but arrests must meet the requirements of the U.S. Constitution.
B. Arrests, in which one is seized and detained for a period, are more invasive than stops in
several ways:
2. Stops begin and end in public places; arrested people are taken to isolated and
intimidating surroundings, such as the police department or jail.
4. Stops don’t involve full-body searches such as strip or body-cavity searches,
interrogations, or lineups.
C. Arrest is a zone, not a point, within a spectrum of invasions.
1. Custodial arrests occur when a person is officially taken into custody and held to
answer criminal charges.
D. The Fourth Amendment requires that probable cause accompany an arrest to make it
reasonable.
II. Probable Cause to Arrest
Learning Objective 2: Know that the Fourth Amendment’s reasonableness requirement requires
both probable cause before, and a reasonable execution during and after, arrest.
Learning Objective 3: Appreciate that the probable cause requirement balances the societal
interest in crime control and the individual right to free movement.
See Assignments 1 & 3
3
4-5
Class Discussion/Activity
Find the local website for your police department. See if you can find the guidelines
for officers in executing an arrest. If this is a large class, you can have small groups
of students do this exercise during class for several different police departments and
see if the guidelines vary.
What If Scenario
What if the Supreme Court ruled that officers only needed reasonable suspicion to
make an arrest? What problems might this cause for jails? Courts? Prisons?
A. Probable cause to arrest requires that an officer knows that:
B. Probable cause lies between reasonable suspicion and proof beyond a reasonable doubt.
C. Probable cause balances the right of locomotion with the societal interest in crime
control.
D. Because officers make probable cause decision every day courts tend to accept the facts
as the police see them.
E. These decisions are based on direct information or hearsay.
F. Direct information
2. The courts look for patterns, or a totality of circumstances, that build the case for
probable cause.
G. Hearsay
1. Victims, witnesses, other police officers, and personal informants.
2. Hearsay can’t be used in court but can be used to prove probable cause to arrest.
H. Probable cause depends on the totality of the circumstances test.
III. Arrest Warrant Requirement
Learning Objective 4: Know that arrest warrants are required to enter homes to arrest except
when the need to act immediately exists at the time of the arrest.
A. In most situations, probable cause without an arrest warrant is enough to make an arrest
a reasonable Fourth Amendment seizure.
Class Discussion/Activity
What are some of the facts and circumstances that officers usually know amounts to
probable cause (e.g., firsthand or in the form of a pattern).
B. If officers need a warrant to make an arrest in a home, or if they want to get a warrant to
ensure an arrest is reasonable, the Fourth Amendment requires that arrest warrants
include three elements: a neutral magistrate, an affidavit, and the name of the person to
be arrested.
See Assignments 5
6-14
15-16
C. A Neutral Magistrate
1. The assumption that magistrates carefully review law enforcement information is
open for debate.
D. An Affidavit (sworn statement)
1. A magistrate’s probable cause determination must be based on information sworn
under oath.
3. Officers can appear before magistrates with the written affidavit, but not all
jurisdictions require officers to appear in person.
4. Some argue that modern electronic advances should eliminate the need for most
warrantless arrests.
E. The Name of the Person to be Arrested
1. The Federal Rules of Criminal Procedure provide that an arrest warrant “must contain
the defendant’s name or, if it is unknown, a name or description by which the
defendant can be identified with reasonable certainty.”
IV. Arrests in Homes
Learning Objective 5: Know that arrest warrants are required to enter homes to arrest except
when the need to act immediately exists at the time of the arrest.
Class Discussion/Activity
Did the officers have a warrant when they made the arrest? If not, what justified the
arrest without a warrant? This can be a take-home assignment to be done
individually or can be done in class.
What If Scenario
What if police officers mistakenly came to your home thinking you were a violent felon? They
have an arrest warrant for someone who looks like you. How would you handle this situation?
A. Officers must obtain a warrant to enter a home to make an arrest, except in emergencies.
B. Entering homes to arrest
1. Officers’ entering a home is the “chief evil” the Fourth Amendment was meant to
protect against.
C. Exigent circumstances – When officers have to take immediate action
1. Hot pursuit
3. Imminent escape of suspect
V. Arrest by Force
Learning Objective 6: Understand that officers can use only the amount of force that is
necessary to get and maintain control of suspects they have probable cause to arrest.
Class Discussion/Activity
Have students look up Tennessee v. Garner on the internet and brief the case. What
problems do they see with the fleeing felon rule? Do they appreciate that the rule was
changed or do they think that officers should be able to shoot any “fleeing felon?”
17
18-19
What If Scenario
What if you are in the car with a friend when you are pulled over by police and the
officer draws his gun and tells you and your friend to get out of the car? You know
you have done nothing wrong. What is the best way to handle this situation? Can the
officer make you get out of your car without a warrant? Why/why not?
A. Deadly force
1. Fleeing felon rule for most of common law
2. Tennessee v. Garner: Officers can use deadly force only under two conditions:
a. It’s necessary to apprehend “dangerous” suspects
B. Nondeadly force
(1) Officers can use the amount of force necessary to apprehend and bring
suspects under control.
C. Dogs Trained to Pursue Fleeing Suspects – Kahu v. Minnetonka (2003)
D. Tasers – Estate of Armstrong v. Village of Pinehurst (2016)
VI. After Arrest
Learning Objective 7: Know that after an arrest, felony suspects usually are taken to the police
station for booking, photographing, and possible interrogation and identification procedures;
misdemeanor suspects usually are released.
Class Discussion/Activity
Have students discuss the reasons for each of the procedures that follow an arrest. Some
jurisdictions are also taking DNA swabs of all persons arrested and booked into jail.
Discuss with students if they think this is appropriate or if it is a violation of civil rights.
A. Immediately after an arrest, officers may use force to subdue unruly suspects, prevent
their escape, and protect suspects, officers, other people, or property.
B. When officers arrest suspects for felonies they almost always do the following:
1. Search suspects
3. Photograph and fingerprint suspects
5. Put suspects into lineups
7. Present prisoners to a magistrate
C. Misdemeanor suspects are not usually arrest, they are usually issued a citation, but they
can be arrested.
21
20
Lecture Notes
Arrests are a vital tool that can help law enforcement officers catch the guilty and free the innocent.
But, arrests must satisfy the reasonableness requirement of the Fourth Amendment. Arrests are Fourth
Amendment seizures but are more invasive than stops. Arrests can last longer, result in being taken to
the police station, and are recorded. Arrests can also result in fear, anxiety, and loss of liberty. These are
The probable cause requirement balances the societal interest in crime control and the individual
right of locomotion. Law enforcement officials must have enough facts to believe a crime has been or
is about to be committed and the person arrested has committed, is committing, or is about to commit
the crime. Probable cause is more than the reasonable suspicion needed to affect a stop but less than
proof beyond a reasonable doubt required to convict. Police apply the probable cause requirement on
the streets, having to make quick decisions. Judges have the final say on whether officers had probable
cause to arrest.
Officers can use both direct information and hearsay to build probable cause. Direct information
includes such things as what officers see, hear, and smell as well as fingerprints, DNA evidence,
resisting an officer, and fleeing the scene. Hearsay is gathered from victims, witnesses, other officers,
and informants. Hearsay from an informant can be used to build probable cause if it is corroborated by
an officer’s direct observations.
Arrest warrants are required to enter homes to arrest unless exigent circumstances exist. The most
common exigent circumstances include hot pursuit, need to protect officers, prevent the destruction of
evidence, and prevent the escape of suspects.
In Tennessee v. Garner, the Court ruled that use of deadly force to seize a suspect is subject to the
Fourth Amendment’s reasonableness requirement, which requires probable cause. The Court also ruled that
using deadly force to prevent the escape of a fleeing felon is unreasonable unless the suspect is an
immediate threat to the officer or others. In Graham v. Connor, the Court ruled that the use of non-deadly
force to arrest a suspect is also a Fourth Amendment seizure and during and after arrests, officers can use
only the amount of force that is objectively reasonable to get and maintain control of suspects they have
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protected website for classroom use.
After an arrest, felony suspects usually are taken to the police station for booking, photographing,
and possible interrogation and identification procedures; misdemeanor suspects usually are issued a
citation and not arrested. The Supreme Court has ruled that it is constitutionally reasonable, but not
necessarily wise, for officers to make full custodial arrests for fine-only offenses.
Key Terms
custodial arrests: The seizure and detention of suspects for a period of time longer than a stop.
(p. 164)
probable cause to arrest: Facts that would lead a reasonable person to believe that a crime has
167)
totality of the circumstances test: Test which weighs all the facts and circumstances
surrounding government action to determine if the action was constitutional. (p. 167)
neutral magistrate: The requirement that police officers get approval for a warrant from a
magistrate who will fairly and adequately review application. (p. 172)
bite-and-hold technique: Dogs are trained on command to bite and hold a suspect until
commanded to release. (p. 183)
Assignments
1. Have students look at the provisions in their state code of criminal procedure about arrests –
by both law enforcement officials and civilians (citizens’ arrest). Point out that codes of
2. The Oyez Project is an Internet multimedia archive of text, images, audio, and video of
arguments conducted before the U.S. Supreme Court. Access the transcript or audio for the
oral argument heard before the Supreme Court in the case Atwater v. City of Lago Vista
(2001) concerning the authority of police to arrest persons involved in misdemeanor traffic
3. Discuss with students why we talk in terms of arrest zones and not an arrest fixed point. Have
4. Judges are careful not to “second-guess” decisions made by officers in the heat of the
moment. Have students find a case (local, state, or federal) where suspects alleged abuse of
5. Have students interview a local law enforcement officer (or bring one in as a guest speaker).
Have students write a paper about the methods used to book in a suspect and what the
standard procedure is in their jurisdiction. Have them address how these procedures might
