You may have heard the 4th amendment to the United States Constitution protects you from unreasonable searches and seizures. An arrest is a seizure. The general rule is that law enforcement may not arrest you without a warrant, as such an arrest is considered unreasonable. In a criminal case, an unreasonable arrest can lead to the exclusion of evidence of a crime which law enforcement finds during the criminal investigation. The question which must therefore be answered, frequently, is whether the arrest/seizure was unreasonable.
While the general rule states that a warrantless arrest is unreasonable, there are exceptions to the general rule. For example, if a law enforcement officer observes you commit a crime, it is quite possibly legal for the officer to arrest you without a warrant. With some exceptions as will be discussed, this rule applies to all misdemeanors and felonies. Certainly it would be a strange society if an officer could witness a felony such as a bank robbery take place, but have to go ask a judge to sign a warrant for the persons arrest. The robber would be half way to the Carribean while the officer was still waiting for a warrant. If there is no warrant for the felony arrest, after your arrest,(generally within 48 hours), a further hearing will be held on the issue of whether there is probable cause to believe you committed the felony, and if there is not, you will be released.
But as said, this exception to the warrant requirement applies to misdemeanors also. However, most misdemeanors, an officer can only arrest you without a warrant if the officer has probable cause to believe you committed the misdemeanor, while in the presence of the officer. There are exceptions to that rule, but generally speaking, arresting a person for a misdemeanor not committed in the officer’s presence is unreasonable, and therefore, an illegal seizure.
Unless the state in which the offence was committed has prohibited arrest for any particular offense in question, even the most minor offenses are arrestable, The United States Supreme Court stated, “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318 (2001). In Atwater, the Defendant was pulled over while driving, removed from her vehicle in which her young children were riding, arrested, and transported to jail for failing to wear her seatbelt. The Court was none too pleased with the officer, but upheld the arrest on the language quoted above.
What is the practical application of all of this?
If law enforcement arrests you for a misdemeanor offense, and lacks a warrant for the arrest, and the state in which the offense was committed has not authorized warrantless arrests for such offenses, then it is quite possible that the arrest was illegal. If during a search of your person incident to the arrest, further evidence of any crime is found, (for example, drug paraphernalia, drugs, illegal weapons, child pornography, etc), it is quite possible that court would not allow the prosecutor to use that evidence against you in the prosecution of any crimes.
At the Berry Law, we know to look for the reasons behind an arrest, and know how to determine what offenses are arrestable, and which are not, in order to maximize the chances of the elimination of evidence which would otherwise lead to your conviction.
