Chapter Nine Laws of Arrest Search & Seizure
Laws of Arrest • An arrest is an actual restraint of the person arrested or submission to custody.
Laws of Arrest • An arrest may be made by a Peace Officer or by a private person. (77-7-1, UCA)
Laws of Arrest • A person, by law, is under arrest when a person gives notice, usually verbal, that he is taking such action, and assumes custody. • Physical restraint alone is not an arrest.
Laws of Arrest • An arrest involves four elements: • Key element is intent • Authority to arrest • Subjection to the arrest • Understanding, by the arrestee, that an arrest has been effected
Laws of Arrest • The person making the arrest will inform the person being arrested of his intention, cause and authority to arrest. (77-7-6,UCA) • This is not required when the person to be arrested is actually engaged in the commission of, or an attempt to commit an offense, or is pursued immediately after its commission or after an escape. • Any person who has committed a crime, regardless of age or mental ability, can be arrested. • The issue of culpability or the required culpable mental state is not made by the police, but rather by a prosecutor or a court.
Laws of Arrest • A Peace Officer may verbally summon as many persons as needed to assist in making the arrest. • If an individual refuses to aid an officer, they could be charged with a class “B” misdemeanor.
Laws of Arrest • Diplomatic or consular immunity is granted by federal law to certain representatives of foreign governments. • This immunity is a practice of governments to avoiding situations of political harassment and to protect their own representatives.
Laws of Arrest • Detaining an individual is not considered to be an arrest. • An officer is allowed to stop and detain a person for the purpose of questioning a suspect or witness, or conducting a reasonable investigation. • If, during the investigation, probable cause is developed, the individual could be arrested.
Laws of Arrest • An arrest with a warrant requires a judge to screen the case and determine if probable cause exits. • A signed informationmust be presented and sworn under oath, before a judge. • In some cases, a warrant may be issued for a ‘John Doe’, if the actual identity is unknown.
Laws of Arrest • Warrants are addressed to all peace officers in the state. • Warrants for felonies can be served at any time • Misdemeanor warrants can only be served in the daytime.
Laws of Arrest • According to state law, any peace officer who has knowledge of an outstanding warrant of arrest may arrest a person he reasonably believes to be the person described in the warrant, without the peace officer having physical possession of the warrant. (77-7-11, UCA)
Laws of Arrest • Arrest without a warrant • For a public offense committed or attempted in his presence…. • When he has reasonable cause (probable cause) to believe a felony has been committed and has reasonable cause to believe that the person arrested has committed it.
Laws of Arrest • When he has reasonable cause for believing the person to have committed a public offense, and there is reasonable cause for believing that person may: -Flee the jurisdiction or conceal himself to avoid arrest, -Destroy or conceal evidence of the commission of the offense, or, -Injure another person or damage property belonging to another.
Laws of Arrest • Utah legislature also allows officers to make an arrest under the follow specific laws without a warrant or requirements: -A peace officer, merchant, merchant’s employee who has reasonable grounds to believe that goods, may have been taken, may detain the person in a reasonable manner for a reasonable length of time. (Utah Retail Theft Law)
Laws of Arrest • A peace officer or employee of a library may detain a person if there are reasonable grounds to believe a theft has occurred. (Library Theft Law) • A peace officer may arrest for DUI, at the scene of a traffic accident, even though he did not observe the violation.
Laws of Arrest • Arrest by a private person: Utah law allows an individual to make a citizen’s arrest for a misdemeanor or felony committed in their presence or for a felony for which they have PC the suspect committed the offense. However most departments prefer that a citizen not attempt to make an arrest due to the hazards that may be encountered. (77-7-3,UCA) The preferred method is to observe the situation and report it to a peace officer.
Laws of Arrest • If an individual is arrested with a warrant, the arrested person must either be booked into jail or brought before the judge.
Laws of Arrest • If an individual is arrested without a warrant, by a peace officer or private person, the arrestee shall be taken without unnecessary delay to the judge, or booked into jail. • Another alternative is to be released on a misdemeanor citation.
Laws of Arrest • The key to releasing an individual on a citation is the likelihood of appearance in court. • A citation must contain the following: -name and address of the involved court -name of the person cited -description of the charge -date, time, and place the offense occurred -date citation issued -name of who issued the citation (including citizens) -appearance deadline (77-7-20 (2), UCA)
Laws of Arrest • Another alternative is a summons. A judge may issue a written summons to appear during a certain time period to answer a criminal charge. • Failure to appear by the defendant is punishable as contempt of court.
Laws of Arrest • Any person is justified in using any force, except deadly force, which he reasonably believes to be necessary to effect an arrest or to defend himself or another from bodily harm while making an arrest. (76-2-403,UCA)
Laws of Arrest • If a person is being arrested and flees or forcibly resists after being informed of the intention to make the arrest, the person arresting may use reasonable force to effect the arrest. (77-7-7, UCA) • Deadly force may be used only as provided in Section (76-2-404,UCA)
Laws of Arrest • A peace officer when making an arrest may forcibly enter the building in which the person to be arrested is, or in which there are reasonable grounds for believing him to be. • Before making the forced entry, the officer shall demand admission and explain the purpose for which admission is desired. • The officer need not to give a demand an explanation before making forcible entry under the exceptions in Section 77-7-6, or where evidence will be hidden or destroyed.
Laws of Arrest • In some situations, forced entry may be made without warning. -Officer’s or person’s life in jeopardy. -Evidence hidden or destroyed. -Fresh pursuit, the officer may legally break doors, windows, etc., to maintain pursuit in order to recapture or effect an arrest. -In most all other cases, an arrest warrant or search warrant must be obtained.
Laws of Arrest • A peace officer, or any person acting by his command in his aid and assistance, is justified in using deadly force when:
Laws of Arrest • The officer is acting in obedience with a court in executing a penalty of death. • Effecting an arrest or preventing an escape from custody following an arrest, where the officer believes that deadly force is necessary to prevent the arrest from being defeated by escape; and • The officer has probable cause to believe the suspect has committed a felony offense involving the infliction or threatened infliction of death or serious bodily injury; or
Laws of Arrest • The officer has probable cause to believe the suspect poses a threat of death or serious bodily injury to the officer or to others if apprehension is delayed. • The officer reasonably believes the use of deadly force is necessary to prevent death or serious bodily injury to the officer or another person. • If feasible, a verbal warning should be given by the officer prior to any use of deadly force. (76-2-404,UCA) • It is important to understand these are legal requirements as to when deadly force can and cannot be used. Decisions must be made based on agency policies, personal judgment, and moral considerations. The law does not distinguish between juvenile and adults suspects.
Search and Seizure • The Fourth Amendment to the Constitution of the United States guarantees that citizens will be free from unreasonable searches and seizures.
Search and Seizure • A search warrant is an order issued by a judge in the name of the state and directed to a peace officer, describing with particularity the thing, place or person to be searched and the property or evidence to be seized by him and brought before the judge. (77-23-201,UCA)
Search and Seizure • The officer who must obtain a search warrant is required to contact a judge having jurisdiction over the geographic area concerned. • The officer submits an affidavit which must contain the premises to be searched and the property to be seized in great detail. • The affidavit must be based on probable cause and sworn to under oath. • The search warrant can be served by any officer and is valid for 10 days.
Search and Seizure • When serving a search warrant, entry may be made in two ways. -Knock and announce. -No-knock.
Search and Seizure • The courts require the areas searched and the time spent must be reasonable. • The reasonable standard means the issuing court will decide after the fact if the time spent was reasonable and also if the officers limited their search to areas in which the items could have reasonably been concealed.
Search and Seizure • Courts have allowed officers to conduct a search, without a search warrant, only in exigent circumstances.
Search and Seizure • Some of the events in which courts have identified: -Emergencies, life or death. -Hot pursuit. -Evidence destroyed. -Incident to arrest, limited to immediate area within the reach of arrestee in order to, protect the officer, prevent escape and prevent evidence from being destroyed.
Search and Seizure • As with the search of a premises, obtaining a search warrant before searching an individual is the preferred method.
Search and Seizure • Searches of persons can be done without a warrant, incident to an arrest. • Courts have held this valid in order to protect the officer, prevent possible escape, and preserve evidence.
Search and Seizure • The officer, or any officer who assumes custody of the arrestee, can search the individual. • A search will be conducted irrespective of the gender of the arrestee. • Departments train officers on how to search an individual of the opposite sex, appropriately. • Areas or items that can be searched are: -hair, items in hands -clothing -suitcase or purse -immediate area -body cavities require a search warrant
Search and Seizure • When a individual in a vehicle has been arrested, the vehicle can be searched incident to the arrest. • The area within reach of the arrestee, may be searched for weapons or evidence.
Search and Seizure • If a vehicle is being seized under forfeiture laws, the entire vehicle can be searched. • Normally, a vehicle will be seized under forfeiture laws involving narcotics, federal offenses such as contraband liquor, or illegal weapon possession.
Search and Seizure • Department policies require an inventory search on a impounded vehicle (hold for owner, incident to arrest) or state tax impound. • The inventory is done for the protection of the property owner and invalid claims against the officer.
Search and Seizure • In Carroll v. U.S. and Ross v. U.S., the Supreme Court found that due to the mobility of a vehicle, law enforcement officers could not be expected to acquire a search warrant and then expect to find the vehicle when they returned.
Search and Seizure • Supreme Court Opinion: “Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrant less search of the vehicle that is as thorough as a magistrate could authorize by warrant.”
Search and Seizure • Certain situations are not considered to be a search in the legal sense and are not restricted by the Fourth Amendment: -checking for Vin # -stopping a vehicle to give the driver a citation -shining a flashlight around the interior of a vehicle at night -Looking at the outside of a vehicle parked in a public place
Search and Seizure • The courts have allowed that a citizen can give consent to authorize a search by law enforcement officers, however, there are some elements which must be present in order for the consent to be valid. -The person giving the consent must have the authority to permit the search. -The consent must be voluntarily. -The consent must be positive. Silence is not consent.
Search and Seizure • There are some restrictions involving consent searches: -The person cannot be tricked into allowing consent. -Consent given by an individual may be limited to a specific area. -Consent to enter a house is not consent to search. -Consent can be revoked at any time.
Search and Seizure • Utah’s Stop and Frisk law is based on the U.S. Supreme Court case of Terry v. Ohio. • Police have the right to stop and question suspicious persons and to check for weapons, when the officer believes he or she may be in danger. (77-7-15 and 77-7-16, UCA)
Search and Seizure • The exclusionary rule was issued from the U.S. Supreme Court, which requires that any evidence or testimony that law enforcement officers gain through improper means, will be excluded from court. • Two cases responsible for the rule were, Weeks v. U.S. in 1914, and Mapp v. Ohio in 1961.
Search and Seizure • Probable cause is the arrest standard. -At the time the warrant is issued or the arrest is made, the arresting person must be in possession of knowledge that would lead a reasonable and prudent person, in the same position, to believe that the crime has been committed and the arrestee committed it.
Search and Seizure • Probable cause can be based on any sensory information available to the person making the arrest. • The key is the reasonableness of the conclusions drawn from such information.