united-states arrest false-arrest indictment
Legal basis for arresting a person not actively committing a crime?
<p>Originally the purpose of an arrest in English common law, meaning a deputy of the state seizing and holding a suspect against their will, was to apprehend the suspect to confirm their identity. In the case that they were seized in the commission of a felony, there was no question that sufficient evidence existed to justify an arraignment.</p>
<p>Formerly if a person was NOT apprehended in the commission of a felony, but was merely a suspect, then the authorities had to INDICT the suspect to prove sufficient evidence. Even after the person was indicted, they would still not be arrested, they would simply be summoned to court. A person would only be arrested if they failed to appear, in which case a warrant for their arrest would be issued by the court.</p>
<p>Now, of course, this standard procedure has been abandoned. The police now seize and arrest anyone they plan to charge without warrant and the indictment is sought AFTER they have arrested the person. Obviously the police desire to arrest the suspect because that gives them the opportunity to humiliate the suspect and interrogate them to collect more evidence. Also, a suspect in prison will have a much harder time defending themselves at an arraignment or resisting an indictment.</p>
<p>So, what exactly is the legal principle under which the police consider themselves to be authorized to arrest and imprison people before they have been indicted?</p>
<p>Note that this question, to repeat the above, only applies to people who have not been apprehended in the act of committing a crime (<em>in flagrante delicto</em>) and are suspects by virtue of some subsequent investigation. For example, let's imagine (and this is a real example) a store complains they were shoplifted (grand larceny) and provide photos of the suspect. The police, then by computer matching of the photos to mugshots, have a suspect. They then go and arrest the suspect without indicting him first (<em>in corpore delicti</em>). In the old days, this would have constituted a false arrest because the suspect was not caught in the act. Now, however, the police routinely arrest people like this for felonies after the fact without indicting them or otherwise proving in court that (1) a crime has actually been committed, and (2) that they have sufficient evidence to bring the person to trial.</p>

<h2 id="warrants-qs8n"><a href="https://en.wikipedia.org/wiki/Warrant_(law)" rel="noreferrer">Warrants</a></h2>
<p>You say: &quot;Formerly if a person was NOT apprehended in the commission of a felony, but was merely a suspect, then the authorities had to INDICT the suspect to prove sufficient evidence.&quot; <strong>This is not true</strong>.</p>
<p>What the authorities had to do was issue a warrant which required no prerequisites or even suspicion that the person was involved in the crime. If I had the power, I could issue a warrant any time I felt like it.</p>
<p>The abuse of warrants was one of the grievances that led to the American Revolution and is the primary driver for the fourth amendment to the Constitution and the limit that warrants can only be issued on &quot;probable cause&quot;. Needless to say, all Western democracies have similar protections.</p>
<h2 id="statute-law-olu3"><a href="https://en.wikipedia.org/wiki/Statutory_law" rel="noreferrer">Statute law</a></h2>
<p>In common law jurisdictions, parliament/congress can overrule the common law by passing an act that effectively says &quot;the law is now this&quot;.</p>
<p>With the rise of professional Police starting with the Glasgow Police in 1800, the statutes that created (or regulated them) extended the power of arrest without a warrant beyond what the common law allowed.</p>
<p>For example, in <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a>, the police power of arrest without a warrant is in <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/s99.html" rel="noreferrer">s99</a> of the <em>Law Enforcement (Powers and Responsibilities) Act</em> 2002. The general power of arrest without a warrant is in <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/s100.html" rel="noreferrer">s100</a> (which also broadens the common law power to allow arrest where a person has &quot;just committed&quot; an offence or has committed a serious indictable offence for which they have not been tried at any time in the past) and the power to arrest <em>with</em> a warrant is in <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/s101.html" rel="noreferrer">s101</a>.</p>

<h3 id="a-brief-history-of-the-law-of-arrests-o4d9">A Brief History Of The Law Of Arrests</h3>
<p>The question greatly oversimplifies and misstates the history of the law authorizing arrests in common law countries.</p>
<p>There have always been arrests of people not in the act of committing a crime, prior to indictments for a great many offenses. Grand juries (which are what indictments come from) are now mostly residual and archaic with many U.S. states dispensing with them because they provide little or no material benefit to defendants in most cases. Grand juries can be replaced by giving prosecutors the power to issue investigative subpoenas to investigate crimes where probable cause for a prosecution does not yet exist, and allowing for post-arrest adversarial preliminary hearings to determine probable cause that provides much more meaningful review of prosecution decisions than grand jury indictments.</p>
<p>The authority of a magistrate, rather than a grand jury, to constitutionally issue an arrest warrant based upon probable cause has U.S. Constitutional roots in the Fourth Amendment to the U.S. Constitution (1791) in federal criminal cases, stating:</p>
<blockquote>
<p>The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.</p>
</blockquote>
<p>State practice in the late 18th century in the U.S. was substantially similar.</p>
<p>In the 20th century, the Fourth Amendment requirements were applied to state and local governments under the incorporation doctrine, although many states had already done so through state constitutional provisions with language similar to the federal Fourth Amendment to the U.S. Constitution. The seminal cases applying the Fourth Amendment warrant and warrantless arrest requirements to all of the states at the U.S. Supreme Court level were: <em>Wolf v. Colorado</em>, 338 U.S. 25 (1949) (dicta applied core provisions to the states), <em>Mapp v. Ohio</em>, 367 U.S. 643 (1961), <em>Ker v. California</em>, 374 U.S. 23 (1963) (warrantless searches and seizures), and <em>Aguilar v. Texas</em>, 378 U.S. 108 (1964) (warrant requirement).</p>
<h3 id="positive-legal-authorization-to-make-arrests-qqtl">Positive Legal Authorization To Make Arrests</h3>
<p>Arrests in most states and under federal law are authorized by statute, although I suspect that there are a few jurisdictions where this authority still arises as a matter of common law rather than statute.</p>
<p>Federal laws statutes authorizing arrests can be found, for example, in all federal criminal cases, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_4" rel="nofollow noreferrer">here</a>, and designated the FBI as a federal law enforcement agency with the authority to make arrests <a href="https://www.law.cornell.edu/uscode/text/18/3052" rel="nofollow noreferrer">here</a>.</p>
<p>In Colorado, the basis legal authority to make arrests is provided in multiple statutory sections at <a href="https://codes.findlaw.com/co/title-16-criminal-proceedings/#!tid=N74C469F0D88911DBA93CE8A0BD96DE4A" rel="nofollow noreferrer">Article 3 of Title 16 (Criminal Procedure)</a>. The most commonly used section of that Article is Colorado Revised Statues § 16-3-102, governing arrests by law enforcement, which states:</p>
<blockquote>
<p>(1) A peace officer may arrest a person when:</p>
<p>(a) He has a warrant commanding that such person be arrested;  or</p>
<p>(b) Any crime has been or is being committed by such person in his
presence;  or</p>
<p>(c) He has probable cause to believe that an offense was committed and
has probable cause to believe that the offense was committed by the
person to be arrested.</p>
</blockquote>
<p>A fairly typical modern statute authorizing the use of force by law enforcement to make such arrests in a criminal code based upon intellectually influential but not widely adopted the Model Penal Code is Colorado Revised Statutes § 18-1-707 which provides (with provisions related to deputized citizens, citien's arrests, and detention facilities omitted; bold headings in brackets are inserted editorially) that:</p>
<blockquote>
<p>[<strong>Ordinary Arrests By Law Enforcement</strong>]</p>
<p>(1) Except as provided in subsections (2) and (2.5) of this section, a
peace officer is justified in using reasonable and appropriate
physical force upon another person when and to the extent that he
reasonably believes it necessary:</p>
<p>(a) To effect an arrest or to prevent the escape from custody of an
arrested person unless he knows that the arrest is unauthorized;  or</p>
<p>(b) To defend himself or a third person from what he reasonably
believes to be the use or imminent use of physical force while
effecting or attempting to effect such an arrest or while preventing
or attempting to prevent such an escape.</p>
<p>[<strong>Arrests Made Using Deadly Physical Force By Law Enforcement</strong>]</p>
<p>(2) A peace officer is justified in using deadly physical force upon
another person for a purpose specified in subsection (1) of this
section only when he reasonably believes that it is necessary:</p>
<p>(a) To defend himself or a third person from what he reasonably
believes to be the use or imminent use of deadly physical force;  or</p>
<p>(b) To effect an arrest, or to prevent the escape from custody, of a
person whom he reasonably believes:</p>
<p>(I) Has committed or attempted to commit a felony involving the use or
threatened use of a deadly weapon;  or</p>
<p>(II) Is attempting to escape by the use of a deadly weapon;  or</p>
<p>(III) Otherwise indicates, except through a motor vehicle violation,
that he is likely to endanger human life or to inflict serious bodily
injury to another unless apprehended without delay.</p>
<p>[<strong>Chokeholds</strong>]</p>
<p>(2.5)(a) A peace officer is justified in using a chokehold upon
another person for the purposes specified in subsection (1) of this
section only when he or she reasonably believes that it is necessary:</p>
<p>(I) To defend himself or herself or a third person from what he or she
reasonably believes to be the use or imminent use of deadly physical
force or infliction of bodily injury;  or</p>
<p>(II) To effect an arrest, or to prevent the escape from custody, of a
person whom he or she reasonably believes:</p>
<p>(A) Has committed or attempted to commit a felony involving or
threatening the use of a deadly weapon;  or</p>
<p>(B) Is attempting to escape by the use of physical force;  or</p>
<p>(C) Indicates, except through a motor vehicle, that he or she is
likely to endanger human life or to inflict serious bodily injury to
another unless he or she is apprehended without delay.</p>
<p>(b) For the purposes of this subsection (2.5), “chokehold” means a
method by which a person holds another person by putting his or her
arm around the other person's neck with sufficient pressure to make
breathing difficult or impossible and includes, but is not limited to,
any pressure to the throat or windpipe, which may prevent or hinder
breathing or reduce intake of air.</p>
<p>[<strong>Definitions and Caveats</strong>]</p>
<p>(3) Nothing in subsection (2)(b) or subsection (2.5) of this section
shall be deemed to constitute justification for reckless or criminally
negligent conduct by a peace officer amounting to an offense against
or with respect to innocent persons whom he is not seeking to arrest
or retain in custody.</p>
<p>(4) For purposes of this section, a reasonable belief that a person
has committed an offense means a reasonable belief in facts or
circumstances that if true would in law constitute an offense.  If the
believed facts or circumstances would not in law constitute an
offense, an erroneous though not unreasonable belief that the law is
otherwise does not render justifiable the use of force to make an
arrest or to prevent an escape from custody.  A peace officer who is
effecting an arrest pursuant to a warrant is justified in using the
physical force prescribed in subsections (1), (2), and (2.5) of this
section unless the warrant is invalid and is known by the officer to
be invalid.</p>
</blockquote>
<p>Note, however, that this statute purports to authorize some arrests that 4th Amendment case law has held are unconstitutional (not all of which are easily summarized succinctly).</p>
