Justification: Law Enforcement - Arrest And Attendant Uses Of Force

An arrest, which is the act of taking a person into custody for the purposes of the administration of law, may be an assault and battery or a false imprisonment in the absence of a legally recognized basis for the arrest (Restatement of Torts, 2d ed.). The law of arrest is governed by the common law, as modified by statute and in the United States by the Fourth Amendment to the U.S. Constitution, which forbids "unreasonable searches and seizures" by government officials, including seizures of the person as in the case of arrest. The Fourth Amendment also provides that a warrant, including a warrant of arrest, may nor be issued by a judge except upon "probable cause." The latter is defined as facts and circumstances sufficient to cause a person of "reasonable caution" to believe that an offense has been committed and that the person to be arrested committed it (U.S. v Carroll, 267 U.S. 132, 162 (1925)). In general, an arrest by a public official without probable cause will be considered an unreasonable seizure of the person under the Fourth Amendment.

At common law, a law enforcement officer may make an arrest pursuant to a lawful warrant for any offense; most arrests, as a practical matter, if they are not made in the home, are made without a warrant. A law enforcement officer may lawfully make an arrest without a warrant for any crime, whether felony or misdemeanor, committed in his presence. A law enforcement officer may lawfully make an arrest without a warrant for a felony when he has probable cause to believe that a felony has been committed and that the person to be arrested committed it. Statutes commonly expand the powers of officers, to permit them to make arrests, for example, if they have probable cause to believe that a crime less than a felony has been committed and that the person arrested is the culprit (LaFave and Scott, sec. 5.10; N.Y. Criminal Procedure Law, sec. 140.10).

At common law, a private person may lawfully make an arrest for any felony committed in his presence, or for a misdemeanor that constitutes a breach of the peace (Restatement of Torts, 2d ed., sec 119; Dressler, p. 251). A private person can also make an arrest for a felony, even if not committed in his presence, if the felony has been committed and he has probable cause to believe that the person arrested committed it. While Fourth Amendment standards do nor limit the law of arrest by private persons, since the amendment is applicable only to government actions, the law of arrest is sometimes altered by statute to expand or limit powers of arrest by private persons. Thus, for example, the powers may be expanded to permit an arrest for any crime committed in the presence of the person (LaFave and Scott, sec. 5.10). The powers to arrest for a felony not committed in the presence of the citizen may be limited to require that the suspect actually have committed the crime (N.Y. Criminal Procedure Law, sec. 140.30).

In addition, the U.S. Supreme Court has held that a person may be detained temporarily by law enforcement officers for investigation, under circumstances that do not rise to the level of an arrest, if officers have "a particularized and objective basis for suspecting the particular person stopped. . . ." (U.S. v. Cortez, 449 U.S. 411, 417 (1981)).