What Is an Arrest?

Whether a person is "under arrest" depends on the circumstances of the police encounter.

By , Attorney Santa Clara University School of Law

An arrest occurs when police officers take a suspect into custody. An arrest is complete as soon as the suspect is no longer free to walk away from the arresting police officer, a moment that often comes well before the suspect actually arrives at a jail.

The U.S. Constitution's Fourth Amendment authorizes an arrest only if the police have probable cause to believe that a crime was committed and that the suspect did it. This probable cause requirement restrains the power of the police to deprive people of liberty. It prevents the type of random roundup of "undesirables" that sometimes occurs in other countries.

Legislatures and courts have picked up where the Fourth Amendment leaves off, developing rules about how, when, and why people can be arrested. (For more information, particularly about determining whether you're under arrest, see Arrest: "Seizing" People.")

What Constitutes an Arrest?

An arrest requires taking someone into custody, against that person's will, in order to prosecute or interrogate. It involves a physical application of force, or submission to an officer's show of force. In sum, the arrestee must not be free to leave. Whether the act by the police is termed an arrest under state law is not relevant.

When deciding whether someone has been arrested, courts apply the "reasonable man" standard. This means asking whether a reasonable person, in the shoes of the defendant, would have concluded that he or she was not free to leave.

No arrest happens when an officer approaches someone in a public place and asks if the person is willing to answer questions, as long as the officer does not restrain the person.

Examples of Arrests and Nonarrests

An arrest occurs when a police officer takes a person into custody. However, arrest is not synonymous with being taken to jail. The following common situations illustrate the scope of an arrest:

Example A driver is stopped for a routine traffic violation. The driver technically is under arrest because the driver is not free to leave until the officer has written a ticket (or if it's the driver's lucky day, only issued a warning). But the arrest is temporary. Assuming the officer has no basis to suspect that the driver is engaged in criminal activity other than the traffic violation, the officer usually releases the driver once the driver produces identification and signs a promise to appear in court (assuming a ticket was written). Traffic stop arrests do not become part of a person's arrest record, and do not count as arrests for the purpose of answering the question, "Have you ever been arrested?" (on a job or license application, for example).

Example A shopper in a mall is stopped by a police officer who says, "I'd like to know whether you saw the robbery that took place a few minutes ago in the jewelry store." No arrest has taken place. People questioned by police officers are not under arrest unless the officers indicate that they are not free to leave. (For reasons of personal safety, however, the shopper should not simply walk away from the officer without the officer's permission.) Even if the officer refuses permission, thereby placing the shopper under arrest, this arrest, like the traffic stop arrest, doesn't count as an arrest if the shopper is allowed to leave after the questioning and is not charged with a crime.

Example A police officer yells, "Hold it right there, you're under arrest!" to a suspect who assaulted someone on the street. The suspect flees. The suspect has not been arrested because the suspect has neither been taken into custody nor voluntarily submitted to the police officer's authority.

Example A police officer yells, "Hold it right there, you're under arrest!" to two suspects who assaulted someone on the street. As the officer handcuffs Suspect 1, the officer tells Suspect 2, "Stay right there and don't move." Suspect 2 does not move. By submitting to the police officer's authority, Suspect 2 has been arrested, even though Suspect 2 has not physically been taken into custody.

Example A store security guard has arrested someone for shoplifting and turns the suspect over to a police officer. The police officer issues a citation instructing the suspect to appear in court on a charge of petty theft. The suspect has been arrested, but does not have to go to jail. This would count as an arrest even if the shoplifter were a minor, although many states allow minors to eventually expunge (delete) arrests from their record.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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