Arrest

• Author: James Boyd White
• Pages: 119-120

Page 119

The constitutional law of arrest governs every occasion on which a government officer interferes with an individual's freedom, from full-scale custodial arrests at one end of the spectrum to momentary detentions at the other. Its essential principle is that a court, not a police officer or other executive official, shall ultimately decide whether a particular interference with the liberty of an individual is justified. The court may make this judgment either before an arrest, when the police seek a judicial warrant authorizing it, or shortly after an arrest without a warrant, in a hearing held expressly for that purpose. The law of arrest gives practical meaning to the ideal of the liberty of the individual, by defining the circumstances in which, and the degree to which, that liberty may be curtailed by the police or other officers of the government; it is thus a basic part of what we mean by the RULE OF LAW in the United States.

The principal constitutional standard governing arrest is the FOURTH AMENDMENT. This amendment is one article of the original BILL OF RIGHTS, which was held in BARRON V. BALTIMORE (1833) to apply only to the federal government. But in MAPP V. OHIO (1961) the Fourth Amendment was held to be among those provisions of the Bill of Rights that are "incorporated" in the FOURTEENTH AMENDMENT and is thus applicable to arrests by state as well as federal officers. (See INCORPORATION DOCTRINE.) Even without such a holding, of course, the Fourteenth Amendment, which regulates state interference with individual liberty, would have required the development of a body of law governing state arrests. The law so made might have been no less protective of the individual than the law actually made under the Fourth Amendment. As things are, however, the "unreasonableness" standard of the Fourth Amendment has been the basis of the constitutional law governing arrests by both federal and state officers.

What seizures are "unreasonable"? One obvious possibility is that seizures of the person should be held subject to the warrant clause, as searches are, and should accordingly be found "unreasonable" unless a proper warrant has been obtained or, by reason of emergency, excused. For many years the court flirted with such a rule, as in Trupiano v. United States (1948) and TERRY V. OHIO (1968), but it never flatly required a warrant for arrests, and in United States v. Watson (1976) it rejected that rule at...