Arrests in Public and Not in One's Home

• Jurisdiction: Maryland

II. Arrests in public and not in one's home

There is a considerable difference between making an arrest in public and making an arrest in one's home. A public arrest requires the right to intrude on the person, while an in-home arrest requires both the right to intrude into the home and the right to intrude on the person.

A public arrest usually does not require a warrant, but it requires probable cause to believe that a crime was committed and that the arrestee committed it. An in-home arrest requires that same probable cause to arrest, but it also requires a valid authorization into the home. The only four ways for police to validly enter a home are (a) with an arrest warrant and reasonable cause to believe that the arrestee is present; (b) with a search warrant; (c) with consent; or (d) with exigent circumstances.

A. Fourth Amendment

1. Felony arrests in public

The Fourth Amendment permits felony arrests in public, with or without an arrest warrant, provided there is probable cause to believe that a felony was committed and probable cause to believe that the arrestee committed it. In United States v. Watson, 423 U.S. 411, 417-18, 423 (1976), the Supreme Court held that if police have probable cause that a felony was committed and probable cause to believe that the defendant committed it, they may arrest the defendant, in public, without a warrant, based on the probable cause. "In public" includes the curtilage of a home.

In United States v. Santana, 427 U.S. 38, 42 (1976), the Supreme Court held that a doorway of a house is a "public place." Curtilage includes those outdoor areas that are near the residence and the "intimate activity associated with the 'sanctity of a man's home and the privacies of life.'" Oliver v. United States, 466 U.S. 170, 180 (1984).

2. Misdemeanor arrests in public

The Fourth Amendment permits misdemeanor arrests in public, with or without an arrest warrant (a) whether or not the offense is committed in the arresting officer's presence, see Atwater v. City of Lago Vista, 532 U.S. 318, 330 (2001); (b) whether or not the misdemeanor is a "breach of the peace" misdemeanor, id.; (c) whether or not the misdemeanor is subject to incarceration; and (d) whether or not the misdemeanor is even an "arrestable" offense, provided there is probable cause to believe that a misdemeanor was committed and that the defendant committed it.

Misdemeanors not subject to incarceration

The Fourth Amendment permits an arrest for a misdemeanor not...