Arrests and Search and Seizure

by | Oct 14, 2015 | criminal law | 0 comments

Arrests and Search and Seizure?

Arrests

Arrests can be made by police officers, judges, county coroners, and private citizens. Police officers have the authority to arrest if they: have a warrant; have probable cause of a felony; saw a person committing a misdemeanor; or have probable cause regarding drunk driving, hit-and-run driving, battery, or violation of a restraining order.

Judges have the authority to arrest when they have probable cause to believe a person has committed either a felony or a misdemeanor.

County coroners have the authority to arrest persons they believe to be responsible for a death and persons with a warrant. Coroners also have the same authority as the county sheriff if the sheriff is busy or incapacitated. Under some circumstances, the governor can give a coroner the authority to arrest someone for a crime committed in another state.

Private citizens are authorized to make arrests of other citizens if they have probable cause to believe that the person committed a felony or if the person is breaching the peace.

Probable Cause

Probable cause is based on reliable information, which must be known to the person making the arrest (usually a police officer), at the time of the arrest, and which is important in leading a reasonable person to believe the person has committed a crime. This information may be firsthand information gathered by the officer himself, or it may come from other officers, cooperative citizens, professional informers, or anonymous tipsters. Cooperative citizens are eyewitnesses, victims, or other good citizens; they are considered reliable unless given a reason to be considered otherwise. Professional informers are self-serving (because they receive something for their information), and their reliability must therefore be assured. Anonymous tipsters must also be proven reliable. The guidelines for proving reliability include: informants’ credibility based on references or history, verification of informers’ information through other sources, implication of informant in criminal activity, or great detail that makes the information self-verifying. Probable cause holds up whether the arrest is made with or without a warrant.

Warrants

Generally, Indiana courts have held that warrants are required for all searches and only for arrests for misdemeanors committed outside of an officer’s presence. No warrant is necessary if the officer sees the misdemeanor being committed. In regards to a felony arrest, a person can be arrested either in public or in their private residence. In order to make an arrest in a private home, an officer must obtain permission to enter the home. This can be consent to entry, a search warrant, an arrest warrant, or exigent circumstances. In the event of an arrest warrant, an officer is required to knock and announce himself prior to breaking down any doors or windows. This also applies to arrests made without warrants. However, exigent circumstances may apply. Exigent circumstances include a hot pursuit, medical need of victim or offender, or observation of a crime in progress in the home.

Use of Force

The use of force in an arrest is only lawful when an officer believes it is necessary for a lawful arrest. This means that tackling an offender to the ground to make the arrest, as well as hitting an offender who bites, is allowed. However, in the event of a fight, officers are expected to be calm and not use excessive force. As a general rule, deadly force is not permitted when making an arrest for a misdemeanor or stopping an offender from fleeing if it is a misdemeanor offense. Deadly force is lawful only in self-defense, or when the officer believes the offender is a danger to the public if allowed to escape. (Keep in mind that a private citizen making an arrest is not authorized to use deadly force unless it is in self-defense.)

In some cases, an illegal or unlawful arrest can occur. If you have been unlawfully or illegally arrested, you may have a case for false arrest. Call criminal defense attorney Alex Mendoza to discuss your case today.

Search and Seizure

Generally, all searches require a warrant, but there are exceptions to this. Searches without a warrant are lawful if there is probable cause. This means that the officer must have reason to believe that there is an item in a specific location that is subject to seizure. The officer’s information is subject to the same reliability tests as the probable cause described above. This also means that the retrieval of a search warrant would be impractical given the situation, meaning there is no time to get a search warrant.

If there is a search warrant, it must specifically say what places are to be searched and what objects or persons are to be seized if found. The idea is that any place where an item may be hidden is to be searched for contraband, evidence, and the like. Bank accounts are considered property of the bank, and therefore are able to be searched without a warrant or consent from the person to whom the account belongs.

Whether searching with or without a warrant, officers are required to knock and announce themselves before breaking down any door or window.

If you have been subjected to an unlawful or illegal search, you may have a case. Call criminal defense attorney Alex Mendoza today.

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