Certain parameters must be present before the police can put you in cuffs. Read this guide to understanding when does the police have probable cause to arrest.
We’ve all seen enough cop shows to have heard the retort from an officer that ‘you have the right to remain silent’ as the prime suspect is carted off into a van. And the suspect probably replies that they have been unlawfully arrested or that they are innocent.
But what are the rules regarding the lawful arrest of a suspect? What is probable cause to arrest? What grounds does a police officer need to arrest you? And what can you do to make sure you are not arrested when you’ve done nothing wrong?
It is actually not true that a person’s rights are read to them just after their arrest. Often these rights are read to a suspect just before their questioning at a police station.
These rights are known as a person’s Miranda Rights after the famous case Miranda v. Arizona in 1966. The case involved a landmark Supreme Court decision which involved the earlier prosecution of Ernesto Miranda for rape.
In it, the Supreme Court ruled for the first time that failing to read someone their rights, before questioning, could lead to their statements being deemed inadmissible in court.
In other words, unless there is clear evidence that a person has been offered legal representation prior to being questioned, any confession they make cannot be used in court.
Colombo Had It Right
If you’ve ever seen the fictional detective Colombo at work you’ll know that at first, he comes across as an affable chap. He’s just a humble man asking questions, trying to get to the bottom of the mystery.
Gradually he becomes more and more annoying, suffocating the suspects with his presence until they start to crack under the pressure and make a fatal error. However, he never arrests anyone on a mere hunch. And that is because under real police law he can’t. Even though in almost every case his hunch on who the suspect is is right he is unable to make the arrest until he has the evidence.
In order to make an arrest, a police officer must have either reasonable suspicion or probable cause. It can sometimes be a challenge to learn the difference between the two concepts.
In the U.K there is a specific law called the Police and Criminal Evidence Act (1984) which sets out under what circumstances someone can be arrested and what their rights are from their arrest until they are charged. It was introduced because police were accused of using out-dated vagrancy laws to arrest anyone they felt like during the Brixton riots.
This contrasts with the U.S where decisions about whether an arrest is lawful or not are decided on a case-by-case basis by a judge, a right that stems from the U.S Constitution. An officer must have probable cause - enough evidence - that a person has committed a crime to arrest them.
When the judgment on probable cause takes place depends on whether the arrest took place with or without a warrant. An arrest might not be pre-planned and there may be no time to get a warrant.
For example, an officer on duty might happen to spot someone staggering out of a bar and then get in their car. The officer had probable cause to think he might he drink driving. They then must be taken straight to a magistrate for a prompt judicial determination.
A suspect who is arrested without a warrant and then not offered this right has been denied his or her constitutional rights under the fourth amendment.
In a case where a warrant is issued for an arrest then the determination about the probable cause will take place before the arrest takes place.
What is Probable Cause to Arrest?
The founding fathers left this question unanswered in the fourth amendment when it was included in the Bill of Rights in 1789. It still haunts American politicians and judges to this day.
However, subsequent rulings are generally said to favor the state over the individual. The Illinois v. Gates (1983) case saw prosecutors argue that probable cause should be classed as a ‘practical, non-technical standard’. In other words, what counts as probable cause is largely down to what the police and local magistrate say it does.
More recently in 2018, in Carpenter vs the United States, the Supreme Court ruled that using the stored GPS location data of a person’s mobile phone - issued by a mobile phone service provider - does not count as probable cause for an arrest.
Another duty the police force has when it arrests you is not to use excessive force. Officers that use force must do so to protect themselves and bring you into custody.
It, therefore, fits that if you use force to resist arrest, the arresting officer can also use force against you.
Probable Cause - Police Officers Have Most of the Power
Because of the vagueness of the exact evidence that is needed for probable cause to arrest, the police have much of the power. They have never had the power to simply arrest anyone they suspected of committing a crime without the evidence. However, what constitutes that evidence is very hard to pin down.
Despite its portrayal on fictional drama, it is very rare for a defendant to get off on a technicality linked to their arrest. A person’s Miranda rights are linked to their questioning, not their arrest.
However, if you have been wrongfully arrested or feel the police mistreated you, then you have several options. It’s important to treat yourself after such a horrific ordeal - perhaps at somewhere like Jimmy and Joan’s.
But then you must hire a good lawyer. A good lawyer can vindicate you. You might be able to claim compensation for wrongful arrest.
For more tips on how to treat yourself after being wrongfully arrested, read our top 5 tips for a weekend away in Paris.