A Arrests of Persons

• Library: Illinois Decisions on Search and Seizure (2017 Ed.)

A. Arrests of Persons

1. General Rules

General Rule: Police have probable cause for an arrest when "the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing that the [defendant] had committed or is committing a crime." This is an objective standard rather than a subjective one, lest arrests be based on the unfettered "discretion of the police." Beck v. Ohio, 379 U.S. 89 (1964). It is a standard that is more than a "mere suspicion" and less than the "reasonable doubt" required for a conviction at trial. Brinegar v. U.S., 338 U.S. 160 (1949). Although the test is objective, an officer's expertise is relevant. U.S. v. Ortiz, 42 U.S. 891 (1975) ("officers are entitled to draw reasonable inferences from these facts in light of their knowledge in the area and their prior experience with aliens and smugglers"); Johnson v. U.S., 333 U.S. 10 (1948) (officers initially had probable cause to arrest based on distinctive odor of opium emanating from hotel room where they were "qualified to know the odor"; however, they lacked probable cause because they were unable to identify who was involved). Information from ordinary citizens - eyewitnesses and victims - where there is no motive to fabricate, e.g., Chambers v. Maroney, 399 U.S. 42 (1970) (teenagers who witnessed a robbery), or other police officers, e.g., U.S. v. Ventresca, 380 U.S. 102 (1965) is generally viewed as reliable for purposes of an arrest. Information from informants who are part of the criminal milieu will generally be viewed as less reliable. Jaben v. U.S., 381 U.S. 214 (1965) ("[U]nlike narcotics informants, for example, whose credibility might be suspect, the sources in [a] tax evasion case are less likely to produce false or untrustworthy information"). Obviously, whether the information, including an officer's first-hand observations, will add up to probable cause will depend on all the surrounding facts and circumstances.

Devenpeck v. Alford, 543 U.S. 146 (2004) (The defendant's vehicle was pulled over by police for suspicion of false impersonation of an officer after the officer noticed that the defendant had used a wig-wag light to assist a third party with a flat tire, he then noticed the defendant had a police scanner in his vehicle. The defendant lied to the police about his actions in assisting the third party. When another officer arrived at the scene, the defendant began to record their conversation without the officer's consent. The officer arrested the defendant because he thought the recording was a criminal violation of the State of Washington Privacy Act. But a recent Washington State appellate opinion said the tape recording was not illegal. The officer declined to lodge charges against the defendant other than the supposed Privacy Act violation, because he said he didn't want to "stack" charges against the defendant. The Privacy Act/ recording charges against the defendant were subsequently dismissed. The defendant brought a §1983 civil rights action against the arresting officers. The Ninth Circuit held that unless an offense for which there really was probable cause is "closely related" to the offense specified by the arresting officer, the Fourth Amendment is violated. HELD: Probable cause to arrest is to be based on an objective assessment of facts known to the arresting officer at the time of an arrest. "[A]n arresting officer's [actual] state of mind...is irrelevant to the existence of probable cause," and "his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Here, the defendant was initially stopped for the criminal offense of impersonating an officer, and there was ample probable cause for that offense as well as lying to officers and obstructing their investigation, therefore the defendant's Fourth Amendment rights were not violated even though the officer subjectively arrested the defendant for the Privacy Act violation).

Ornelas v. United States, 517 U.S. 696 (1997) (holding that the question of whether probable cause or reasonable suspicion exists is determined based on two principal components: first, what are the totality of the facts and circumstances that occurred leading up to the stop or search; and second, whether the totality of the facts and circumstances, when viewed from the perspective of an objectively reasonable police officer, adds up to probable cause or reasonable suspicion. The standard of review for determining probable cause is de novo, because the second component is a mixed question of fact and law).

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (The County of Riverside, California, had a policy combining probable cause determinations following warrantless arrests with the arrestees' arraignment proceedings. These proceedings were to be conducted without unnecessary delay but "within two days of arrest, excluding weekends and holidays." The district court held that probable cause determinations must take place within thirty-six hours of arrest except in exigent circumstances, and the court of appeals affirmed. HELD: The appellate court judgment is vacated. A judicial determination of probable cause or Gerstein hearing that takes place within forty-eight hours of a warrantless arrest generally complies with the requirements of the Fourth Amendment. A forty-eight hour rule makes "reasonable accommodation between legitimate competing concerns." A hearing beyond forty-eight hours is presumptively unreasonable, and the burden shifts to the prosecution to show exigent circumstances to justify a delayed hearing). See also People v. Willis, 215 Ill. 2d 517, 831 N.E.2d 531 (2005) (holding that where the defendant was held approximately 72 hours following his warrantless arrest the failure of the police to give him a prompt court appearance consistent with the Gerstein and McLaughlin mandate, this did not render inadmissible defendant's confession taken from him during period of unnecessary delay so long it was given voluntarily).

Graham v. Connor, 490 U.S. 386 (1989) (holding outcome of § 1983 civil rights action based on claim of excessive force by police during arrest, investigatory stop or other seizure turns on Fourth Amendment "objective reasonableness" standard); Tennessee v. Garner, 471 U.S. 1 (1985) (same).

United States v. Watson, 423 U.S. 11 (1976) (holding an arrest in a public place, such as a restaurant, need not be supported by an arrest warrant).

Whiteley v. Warden, 401 U.S. 560 (1971) (Here, a police officer received a radio broadcast that an arrest warrant had been issued for two individuals who were involved in a burglary. The officer stopped their automobile, arrested the two individuals who fit the descriptions and recovered burglary tools from their car. HELD: The probable cause necessary to effectuate an arrest with an arrest warrant or without one is the same standard. Here, the complaint for the arrest warrant was clearly not supported by probable cause. The reliability of the unnamed informant could not be verified by a neutral magistrate, and therefore any information from him could not establish probable cause. Likewise, the subsequent radio dispatch was also lacking probable cause and could not authorize the arrest of the defendant. Also, the arresting officer did not observe anything that would corroborate the unnamed informer's tip that the defendant had committed a crime. Therefore, "the evidence secured as an incident to this arrest warrant should have been excluded from his trial for want of probable cause," and that the arrest of the defendant was in violation of his Fourth Amendment rights).

Draper v. United States, 358 U.S. 307 (1959) (In this case, a police officer arrested the defendant without an arrest warrant in a public place based on a tip from an informant. The officer had used this informant before and had found his information to be reliable. The informant told the officer that the defendant would arrive at a certain train station on a specific day, at a given time. The informant also gave a detailed physical description of the defendant and his clothing and predicted that he would be carrying a brown zipper bag and narcotics. The defendant arrived at the train station a day later as predicted and wearing the described clothes and carrying a brown zipper bag as previously detailed. The officer arrested the defendant, searched him incident to this arrest, and seized narcotics. HELD: A warrantless arrest in a public place is proper if it is based on probable cause. Here, the arrest and seizure. The police officer had probable cause to arrest the defendant based on the tip from the informant, one who the officer had previously used, finding him to be reliable, and the officer had independently verified the information that he had received. Because there was probable cause to arrest, a warrantless arrest in a public place was proper as were the subsequent search of his person and the seizure of the contraband. Probable cause, as the very name implies, "deals with probabilities." These are not technical determinations but are "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." In other words, "[p]robable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed").

Gerstein v. Pugh, 420 U.S. 103 (1975) (HELD: After a warrantless arrest, the arrestee has a right to a judicial probable cause hearing within a reasonable time. When an arrest follows the issuance of an arrest warrant by a neutral magistrate, the judicial branch was given an opportunity to insure that the restraining of a person's...