Timely Arrest: How Long the Police Have to Arrest Someone

Police generally have the freedom to determine when to arrest someone.

By , Attorney · University of Mississippi School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law

Police officers are generally free to determine when to arrest someone; they need the freedom to investigate the crime and collect evidence. Courts have refused to put strict limitations on when officers must arrest a suspect. Generally, only when a delay infringes on a defendant's constitutional rights will the courts consider dismissing the charges.

How Long Do Police Have to Arrest Someone?

The U.S. Supreme Court has stated: "There is no constitutional right to be arrested." Hoffa v. U.S., 385 U.S. 293 (1966).

In general, an arrest made before the statute of limitations for the crime in question has expired is considered timely. For misdemeanors, police might have only months or a year. But for felonies, the limitations periods are often years or decades. Some crimes, like murder, usually don't have a time limit.

Courts have routinely held that law enforcement officers are not required to arrest someone the moment they have probable cause. Criminal investigations are ongoing, and police may continue to investigate and develop their case. Other reasons to delay an arrest include protecting the identity of an informant or undercover agent, investigating a conspiracy or large-scale operation, or waiting on forensic testing and analysis.

When a Delayed Arrest Infringes on Constitutional Rights

Of course, cases do exist where an officer delayed an arrest for improper reasons. If the delay isn't justifiable and compromises the suspect's ability to defend against the eventual charges, the court might dismiss the case.

Delay Prejudices Defendant's Right to a Fair Trial

When a delayed arrest jeopardizes a defendant's right to a fair trial, due process requires dismissal of the charges. For that to happen, a defendant must show that the delay unfairly harmed their defense. It's not enough to simply claim that the erosion of time caused the loss of evidence (for example, documents or witnesses' memories). Rather, the defendant must detail the specific ways in which the delay compromised his or her defense.

Example: A defendant's claim that an arrest delayed by 3 1/2 years prevented him from finding former coworkers to testify on his behalf was insufficient to establish prejudice. The defendant didn't give any details as to how the unnamed witnesses could have supported his defense. (People v. Patton, 775 N.W.2d 610 (Mich. 2009).)

Delay Was Intentional

To overturn a conviction, many courts also require that a defendant show that officers intentionally delayed the arrest in order to benefit the prosecution's case. An example would be deliberately postponing an arrest until evidence favorable to the defendant is no longer available.

Example: The police arrested the defendant 19 years after the homicide in question. They failed to verify a statement the defendant gave a few days after the murder and didn't compare available DNA samples. But the defendant failed to show that the prosecution intentionally delayed the arrest in order to gain a strategic advantage over the defense. Accordingly, the delay didn't violate his due process rights. (Morrisette v. Commonwealth, 569 S.E.2d 47 (Va. 2002).)

Was Delay Justified?

Some courts don't require that the defendant show that the government caused the delay to purposefully harm the defense. Instead, after a defendant establishes that the delay compromised her case, the prosecution must show a legitimate excuse for the delay. The court then considers both the extent of the prejudice and the reason for the delay to determine if there has been a violation of due process rights.

Example: A trial court properly found that a pre-arrest delay of approximately three years, half of which was due to government negligence, violated the defendant's due process rights. (State v. Hope, 89 So.3d 1132 (Fla. 1st DCA 2012).)

Consult a Lawyer

If you have questions regarding a criminal investigation, contact an experienced criminal defense attorney to discuss your options. A knowledgeable attorney will be able to advise you on the applicable law and offer you critical advice. Once an arrest occurs, time is of the essence—the arrestee must be brought before a judge quickly to learn of the charges and their constitutional rights. And the right to a speedy trial kicks in.

DEFEND YOUR RIGHTS
Talk to a Defense attorney
We've helped 95 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please enter a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Please enter a valid Case Description
Description is required

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you