Arrests and Arrest Warrants

Many people think of an arrest as placing a suspect in a jail cell, but often an arrest happens much earlier in the process. It can happen whenever an officer takes a suspect into custody against their will, such that they are not free to leave. An arrest can involve the use of physical force, but it also can consist of submission to a show of force. Under the Fourth Amendment, the police have the power to make an arrest only if they have probable cause to believe that the individual has committed a crime. If an officer simply questions someone on the street, this is not an arrest unless the officer prevents the person from leaving.

A reasonable person standard applies to determining whether an arrest has occurred. Courts will not rely on technical definitions of an arrest under state law. Instead, they will consider whether a reasonable person in the position of the suspect would have believed that they were not able to leave.

Arrest Warrants

An arrest warrant is not necessary in emergency situations (e.g., when a suspect is fleeing) or when an officer has probable cause to believe that a felony was committed and the arrestee committed it.

If a police officer has probable cause, they may seek an arrest warrant from a judge or magistrate. This involves completing an affidavit under oath, which will contain the facts supporting probable cause. The affidavit must be reasonably specific in explaining why the officer believes that the individual named in the warrant committed a certain crime. A very general description that matches a certain individual should not be enough to justify a warrant for that person’s arrest.

The warrant will provide authorization for the police to arrest the person who is the subject of the warrant. It will outline the manner of making the arrest and state the crime that forms the basis of the arrest. The warrant may provide the amount of bail that must be posted for the defendant to be released from custody. Some warrants, known as bench warrants, are issued when a suspect fails to appear in court proceedings regarding a separate crime. A suspect probably will not get bail in these cases.

Addressing Errors in a Warrant

Sometimes a police officer or a judge may make a mistake in completing an affidavit or a warrant. The police officer may show the warrant to the suspect while they are making the arrest, which should allow the suspect to identify any errors in it. Perhaps the warrant contains the wrong name or states the wrong crime as the basis for the arrest. If there is a typo or an error that does not defeat the main basis for the warrant, this will not make the warrant invalid. However, if the warrant is for a completely different person, the suspect may be able to prevent an arrest by explaining the mistake to the officer.

A suspect does not have a right to see the warrant, and the police may believe that it is prudent not to show the warrant for various reasons. If this happens, the suspect will need to comply with the police during the course of the arrest and then resolve any issue of mistaken identity later in the process.

Reviewing an Arrest Warrant

Police are not required to show a suspect a warrant, but an arrestee who becomes a defendant will have the opportunity to review it. This may be important in excluding evidence seized under an invalid warrant.

Last reviewed October 2023

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