criminal-law massachusetts
Under what conditions can a cop arrest someone?
<p>I know in the old days, a person could only be arrested if they were actually observed in the commission of a crime. If someone accused someone else of a crime, they could not be arrested, but only indicted. In other words, a public prosecutor would receive the complaint and draw up an indictment. Then a warrant for the arrest would be made out to bring the person to trial.</p>

<p>This procedure seems to have been aborted and now police apparently arrest suspects based on complaints even though they have no warrant. This seems rather lawless to me.</p>

<p>If this is true, what is the legal basis, if any, for this new way of doing things?</p>

<p>(If the answer would be different in different states, then use Massachusetts as the example.)</p>

<p><strong>Concrete Example</strong></p>

<p>As a concrete example of what I am talking about, <a href="https://abc7.com/4297967/" rel="nofollow noreferrer">recently a mother was arrested and taken to jail in Michigan for "stealing" her daughter's cell phone</a>. The women's ex-husband called the police and falsely told them the phone belonged to him. Based on this complaint, the woman was arrested.</p>

<p>Now, according to my understanding of the law to arrest the woman on a complaint like this, since it is criminal and only the state can bring criminal charges in Michigan, what would be normal is that the complaint would be reviewed by a prosecutor. The prosecutor would then charge the woman in a court of law, the court would then issue an arrest warrant, and she would be arrested.</p>

<p>This is not what happened, however. The deputy simply arrested her without taking any action in court or involvement of a prosecutor. How is that police can now arrest people like this without warrants? What is the legal basis?</p>

<p>First off: </p>

<blockquote>
  <p>I know in the old days, a person could only be arrested if they were actually observed in the commission of a crime. </p>
</blockquote>

<p>This was the traditional common-law rule for <em>misdemeanors</em>. It was not the rule for felonies. The rule for misdemeanors was actually stricter than that: the misdemeanor had to be a breach of the peace, and the arrest had to happen without delay. Because felonies were more serious at common law (and by "more serious" I mean "the term basically meant 'capital crime'"), you could arrest for those without taking the time to get a warrant and giving the suspect a chance to flee. So I'm going to be focusing on the misdemeanor rules, since that's the only time the crime had to be in an officer's presence.</p>

<p>Arrests by state and local officers have to comply with two basic sets of rules: constitutional rules prohibiting unreasonable seizures of persons and state criminal procedure laws setting out when arrests are legal. The constitutional rules are <em>generally</em> those found in the Fourth Amendment (many states interpret rights provisions in their own state constitutions to exactly match the scope of the federal constitution), while the criminal procedure laws vary by state. </p>

<p>Under the Fourth Amendment, unreasonable seizures of persons are unconstitutional. Just because something was a requirement at common law, doesn't mean it's <em>unreasonable</em> to make an arrest without it. Courts have pretty uniformly held that it's not a constitutional violation to arrest for a misdemeanor committed in the officer's presence if the misdemeanor was <em>not</em> a breach of the peace. Sure, that was the rule back when constables were employed to keep the peace, but these days police are also supposed to enforce the law. In most cases, courts have not treated the in-the-presence requirement as a constitutional limit. Some states have, but most haven't.</p>

<p>All of this is meaningless, though, if state criminal procedure law doesn't give officers the power to arrest without warrant for a misdemeanor not committed in the officer's presence. In most states, this is only allowed for specific crimes (e.g. domestic violence). Massachusetts appears to follow this rule, although the best sources I can find at the moment are police department manuals (like <a href="http://www.truropolice.org/on%20line%20manuals/arrest.pdf" rel="nofollow noreferrer">this one</a>). Massachusetts is also a bit interesting in that it has <em>not</em> generally abolished the breach-of-the-peace rule; only certain misdemeanors can result in a warrantless arrest.</p>

<p>Arresting, Charging and Indicting are distinct steps in Federal or State authority pursuing a conviction. (Your tax dollars at work.)</p>

<p>As explained above, an officer of the law can arrest somebody on a reasonable suspicion that the suspect is breaking the law. </p>

<blockquote>
  <p>“Probable cause exists when the facts and circumstances known to the police officers at the time of the search would lead a reasonably prudent person to believe that a crime has been or is being committed and that evidence will be found in a particular place.” <em>People v. Beuschlein</em>, 245 Mich.App. 744, 750, 630 N.W.2d 921 (2001). </p>
</blockquote>

<p>In your example, the woman would be arrested, charged and taken to jail. Then a bail would be set and she would appear in front of the magistrate judge within twenty-four hours, when she could enter a plea of guilty pay the fine and be released, or plead innocent and post bail. </p>

<p>What would happen, if the woman plead innocent and decided to take her case to trial, but did not have money to post bail?</p>

<p>Well, she would be stuck in jail until:</p>

<ul>
<li>The court released her on bail due to her Sixth Amendment right;</li>
<li>The prosecution did not file indictment pursuant to Speedy Trial or dropped the charges;</li>
<li>She plead guilty to the charge, and got out in a month time, instead of waiting for 3 or more months in jail to go to trial. </li>
</ul>
