Chapter 3. Arrest

AuthorKen Wallentine
Making an Arrest
Defining an arrest and when an arrest is considered to
have been effected
Defining probable cause
Sources of probable cause to arrest
Constructive possession and probable cause to arrest
Misdemeanor arrests
Felony arrests
Use and preparation of arrest warrants
Place of arrest
Exceptions to the rule of
exigency, and hot pursuit
Fresh pursuit and peace officer authority
Vienna Convention arrest and detention issues
Diplomatic immunity
Fingerprinting and photographing
Restricting a person’s liberty in a significant way is a sei-
zure. Classifying a seizure as either an investigatory deten-
tion or an arrest is important to determine: a) whether
applies, and b) whether a person may be lawfully
searched incident to arrest. All arrests are seizures, but not
all seizures are arrests.
It is possible for an officer to unintentionally arrest a
person. If an officer arrests a person without sufficient prob-
able cause, this is often called a “false arrest.” The conse-
quences of an improper arrest can include suppression of
any testimonial statements by the suspect, suppression of
physical evidence, and personal civil liability for the of-
Making an Arrest
Defining an arrest and when an arrest is considered to
have been effected
The traditional definition of arrest by an officer includes four
Intent to arrest communicated by words or actions of the
Show of the officer’s authority,
Submission to custody or sufficient force to effect cus-
tody by the officer, and
The person’s understanding that he or she is under arrest.
Most states statutorily define an arrest simply as “the taking
of a person into custody when and in the manner authorized
by law, including restraint of the person or the person’s sub-
mission to custody.” Iowa Code § 804.5 (2005); Cal. Penal
Code § 834 (“taking a person into custody, in a case and in
the manner authorized by law”); Texas Code Crim. Proc.
Ann. Art. 15.22 (2003) (arrest occurs when person is actu-
ally restrained or taken into custody); Arizona Rev. Stat. §
13-3881 (2001) (“arrest is made by an actual restraint of the
person to be arrested, or by his submission to the custody of
the person making the arrest”).
An arrest occurs when an officer deprives a person of
liberty in a significant way, and to the degree traditionally
associated with a formal arrest. To decide if an arrest was

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