Arrest Law
Police powers come equipped with the authority to arrest in clearly defined situations. As a private investigator, you aren't given this broad authority. Your authority to arrest is the same as any other citizen's, the parameters of which are listed later in this section. Understanding this is especially important for PIs working with attorneys and police agencies.
Police Powers of Arrest and Detention
The difference between arrest and detention can be confusing. There is, however, a definite line between the two. Many standards of proof have been set in place to justify an officer's arrest and detention of citizens while protecting the rights of those citizens. However, only an overview of the most common standards will be discussed here.
What Is an Arrest?
An arrest has taken place when someone has been deprived of his liberty, such as being placed under restraint or taken into custody. When a suspect is restrained, cuffed, and placed in the back of a police car with no handles on the inside of the door, it's pretty clear he's under arrest.
Yet handcuffing isn't necessary to place someone in custody; all that's required is for an officer to inform the suspect that she cannot leave or must go with him to the station. If he does this, however, he must charge the suspect.
Because of television shows such as CSI and Law and Order, there's a misconception that officers must read a suspect the Miranda rights at the moment of arrest. This isn't true; reading of Miranda rights is not done on the street. Neither is the subject questioned on the street, unless circumstances exist in which time is of the essence, such as the need to locate a kidnap victim. Questioning the suspect in the station is the norm.
Apart from arrest, the officer cannot transport anyone for questioning unless that person agrees to go. If an officer forces a non-compliant subject, then she's placing him in custody and must charge him. Police feel it's best to question or interrogate in the station, on their own turf.
Even the questioning of witnesses is best accomplished in the station if possible. Witnesses and informants are often taken there in patrol vehicles. Someone who agrees to go and is placed in the back seat of a patrol car isn't in custody. Yet sometimes, by virtue of being in the car, she begins to feel that she's under arrest. She's not; she has agreed to go.
Miranda Warning
This court decision declaring the U.S. citizen's protection against self-incrimination arose from the case Miranda v. Arizona in 1966. An officer need not invoke Miranda until he wants to question or interrogate. Police can ask questions without Miranda as long as the suspect isn't in custody. Remember, all that's required for someone to be in custody is for the officer to inform her that she cannot leave.
In 1963, Ernest Arthur Miranda was convicted of rape and kidnapping after the prosecution presented his confession at his trial. The Arizona Supreme Court upheld the conviction, but the U.S. Supreme Court ruled that the confession was inadmissible because it had been obtained by coercion. The ruling mandated that suspects be informed of their rights before being interrogated.
Once the suspect is in custody, an officer must read him his rights. Of course, nobody reads Miranda, it's memorized and stated. The PI doesn't need to concern herself with Miranda, but it's helpful to know the procedure when she works with attorneys and police. The Miranda waiver of rights follows:
A. You have a right to remain silent. Do you understand this right?
B. You have a right to have an attorney present at questioning. Do you understand this right?
C. If you cannot afford an attorney, one will be provided to represent you before questioning begins. Do you understand this right?
D. Do you understand all these rights as they've been explained to you?
E. Understanding these rights, do you wish to talk to me (or us) now?
Should the suspect decide to talk, he signs the waiver, marking all questions as yes. If he wants his attorney, he still should sign the waiver, marking yes to all but E. The officer also signs, as does a witness; more than one witness isn't necessary, but it is preferable. Many investigators have the suspect place initials at the end of each sentence as well.
The reading of rights at each subsequent questioning isn't required, but doing so has been shown to make it easier for jurors to believe that the suspect was granted every opportunity to speak with an attorney. Videotaping the entire procedure has the same effect as reading Miranda at each interview, and is highly recommended, especially if the suspect refuses to sign or initial any of the Miranda points.
The suspect who agrees to waive her rights and talk to officers or detectives can change her mind at any point and reclaim her right to silence and to an attorney. The officer must stop eliciting information from her immediately. Continuing to question her is illegal, and any information the officer acquires after the subject's change of mind cannot be used against her in court.
Find more information about interviewing, interrogation, and taking statements.
Probable Cause
An officer can arrest with or without a warrant. In either case, she must have probable cause. Probable cause is defined as a reasonable belief that a person has committed a crime. Facts and circumstances known to the arresting officer must be sufficient to lead a prudent person to believe the suspect has committed, is about to commit, or will commit a crime.
The problem with this definition is that what seems reasonable to one person may be murky or even ridiculous to another. People possess a wide range of morals and baggage, which is why cases of wrongful arrest and malicious prosecution are often brought before the court. Because of this, obtaining a warrant is the best course, if there's time to get one.
The process can be complicated and lengthy, and it must be written up correctly. Most importantly, it must include enough probable cause to encourage a discriminating judge to sign off on it. Several situations exist where an officer can arrest without a warrant. Some of these are:
An offense, misdemeanor, or felony committed within the presence or view of the officer
When a person believed to be creditable informs the officer of a felony and there's no time to obtain a warrant
To prevent theft, a breach of the peace, or injury
Upon the order of a magistrate before whom a felony or breach of the peace has occurred
Officer hears an admission of guilt or a statement made by a witness as the crime is committed or immediately after (sometimes ruled an excited utterance)
Reasonable suspicion — officer believes suspect has done something but isn't necessarily sure what it is; officer can detain briefly and frisk (not a full search, but a pat down for weapons to protect himself); evidence found in a pat down or frisk isn't admissible, but under certain circumstances a frisk can turn into a legal search
Probable cause — defined as facts or evidence that would lead a reasonable or prudent person to believe a crime has been, is being, or will be committed; the difference between this and reasonable suspicion is that the officer usually knows what crime he suspects the subject of committing and has evidence to support this
An example of reasonable suspicion might be when a suspect acts nervously and lies, gives inconsistent answers to police, or runs away as police approach. Why the person acts strangely or runs from police may be unknown, but her behavior leads to a reasonable suspicion that she has something to hide.
No matter the reason for detention, a person must show personal and vehicle identification and comply with an officer who stops her — unless, of course, the officer asks her to commit an illegal act, gives her an order outside the purview of stop and frisk, or abuses her civil rights.
Alternatively, an officer could claim probable cause when he stops a vehicle and views, in plain sight, contraband such as drugs, burglary tools, or the like. Probable cause is strengthened in the case of burglary tools if burglaries have taken place in the area and/or the suspect or her vehicle fits the description given by witnesses.
Detention — the Stop and Frisk
Detention is the temporary interruption of someone's liberty. Police officers can detain people for several reasons. Besides reasonable suspicion, an officer can stop and detain someone who has committed a traffic infraction, such as speeding or running a red light. Although the driver has a right to protection against self-incrimination, in this situation he has no right to refuse the officer his driver's license and vehicle identification. He's in a state of detention and may not leave until the police officer views his identification, runs him through NCIC for wants and warrants, and releases him — or decides not to. If NCIC returns a warrant, he can be arrested and a full search performed pursuant to the arrest.
In Terry v. Ohio, the court ruled that an officer who can articulate the reason for his suspicion can frisk a detainee for weapons in order to protect himself and others. Courts have ruled that requiring an officer to have probable cause in all situations may put the officer and the public in danger. Therefore, with reasonable suspicion, he's allowed to frisk for protection and can even require the suspect to submit to metal detectors and drug or accelerant sniffing dogs.
