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Citizen Arrest Under Common Law
Common law and most State laws provides a citizen with extensive powers to
make an arrest without a warrant for felonies and "breaches of peace"
committed in the citizen's presence, or on probable cause for past felonies
providing they have been actually committed.
The State of Louisiana, whose law is based on Napoleonic Code rather than
on English common law, is an exception. In recent years, Louisiana laws
have been brought in line with those of other States, but they still
contain significant differences which CrimeFighters operating in the State
of Louisiana should keep in mind. Unless they are familiar with Louisiana
State laws and Napoleonic Code, CrimeFighters should seek the advice of a
lawyer before attempting citizen arrests.
Police vs. Citizen Arrests
It's easier for police to make an arrest and handcuff the person arrested
because the suspect knows police will use force when necessary and will
shoot back when shot at. When a citizen attempts a citizen arrest, the
first question in the mind of the person being arrested is "what authority
do you have?" And the next question is, "do you have a gun to enforce an
arrest?" Lawbreakers know citizens don't usually have permits to carry
handguns. If they intend to resist arrest, they may pull a gun or knife on
you. When making an arrest for a serious crime, the lawbreaker may be
desperate or doped up. They may try to wound or kill you to escape. If you
don't have a weapon to defend yourself you could get seriously wounded or
killed.
Lawyers and police officers will advise you to just report the criminal
activity and never attempt a citizen arrest. Generally, this is the best
advice you'll get. However, sometimes police aren't handy, a telephone is
far away, and the criminal will escape if you don't do something right then
and there -- and you might lose many thousands of dollars in reward money!
If (1) you know the difference between petty offenses, misdemeanors, and
felonies, (2) the simple rules of making a citizens arrest, (3) have the
required evidence or probable cause (felonies only), (4) and know the
danger (if any) and personal risk, and (5) think you're right: do it!
Misdemeanors vs. Felonies
Some States authorize a citizen arrest for misdemeanors committed in a
citizen's presence, but other States limit a citizen arrest for a
misdemeanor to "disturbing the peace," such as a fight or a noisy party
late at night that won't quiet down, for example. In some States, citizen
arrests for misdemeanors may be justified only if the person arrested is
later convicted! (Meaning you better have iron-clad evidence.)
In some jurisdictions, a citizen arrest may be authorized when a crime,
like purse snatching, is made and observed by the citizen even though it is
considered petty larceny or a misdemeanor. If violence is used to snatch
the purse it may upgrade the crime to a felony, depending on the degree of
violence used.
In some States a citizen is required by law to arrest anyone caught in the
act of committing a felony or immediately afterward. Citizens may be fined
or put in prison when they don't try to make an arrest. Although this is
seldom enforced, anyone witnessing a felony is supposed to make an arrest
or assist an officer or a citizen (when asked) to make an arrest. It's your
duty. Find out if there is such a law in your state, and if so, that law
is your authority to quote if anyone asks "what authority do you have?"
Title 18, Section 3059 is a Federal catch-all law that provides citizens
with authority to make arrests, by force if necessary, and by deadly force
if deadly force is required. If there is no state law that provides you
with authority to make citizen arrests, quote the federal law. Or display
your CrimeFighter I.D. card that has this Title 18: 3059 quotation.
State and Federal laws
In order to determine whether a crime is a felony or a misdemeanor, become
familiar with your State laws. About 80% to 90% of the violations a Crime-
Fighter will encounter are under State law. Most States have felony laws
that parallel Federal laws, with a few exceptions. State laws often vary;
some States have liberal laws and others restrictive laws. A misdemeanor in
one State may be a felony in another, and vice-versa. When in doubt, check
it out first. Know your own state laws.
A comprehensive listing of all the laws for all 50 States would fill a
large book. While it's possible to compile such a book, few readers would
want to buy a large, expensive book to obtain one chapter relevant to the
State in which they live. Instead, visit a public library, or law library,
and look up your State laws concerning petty offenses, misdemeanors, and
felonies. Compile your own list. At the same time you'll become familiar
with them. You'll also learn where to find references to Federal laws.
If there is a CrimeFighters Chapter in your area, contact them first. If
they have a lawyer as a member, he or she may have compiled such a list of
State laws.
How to Make a Citizen Arrest -- Simplified
When possible, introduce yourself by name and say "I am not a police
officer but I'm making a lawful citizen arrest." Then say" you are now
under arrest for .........)".
If the person appears to be ready to fight or make threatening words or
gestures, advise the person that resisting arrest is a misdemeanor, and if
the person hits you it will result in assault and battery charges, and if
he or she flees from arrest, additional charges of fleeing from arrest will
be made. (Memorize this part so, when it's called for, you can say it fast
before any physical action takes place.)
If the lawbreaker submits to the arrest, handcuffs may not be necessary or
available. It may be sufficient to say, "I have handcuffs, but if you give
me your word you won't try to escape and will come peacefully with me, I
won't put them on you. Do I have your promise to come peacefully?" In most
cases the suspect will either flee or will appreciate not being handcuffed
in public and will be resigned to the arrest.
Needless to say, the polite approach won't work if the suspect is a member
of Hell's Angels or another notorious gang. When the situation requires
tough street talk to properly communicate, and verbal commands are ignored
or useless, you may have to resort to physical force. If you must subdue
the person, match the degree of violence used against you -- fist against
fist, club against club, or even deadly force if deadly force is about to
used on you. But you mustn't escalate the degree of violence excessively
where it could be said you used considerably more force than was required
under the circumstances.
Never use violence or abusive language when it's not called for. Behaving
like a gentlemen lessens the probability of physical violence, or lawsuits
if the suspect is found not guilty. Police academies teach transactional
analysis, or how to stay in control of an argument. When a suspect shouts
or shows anger, it's recommended you don't allow his actions to make you
raise your voice and let your temper get out of hand. (He's leading you.)
Talk quietly and firmly and make the other person lower their voice to
match yours (if possible) to reduce the threat of further escalation of the
argument. (You're leading him.) That's theory. As police soon find out, it
doesn't always work. Sometimes force is necessary. That's why uniformed
police carry batons. If you happen to be carrying a 5-cell, rubber-cased
flashlight, it can be used like a baton, if and when the resistance
escalates to a fight.
(Police batons and similar items may be considered as "weapons". Citizens
in some States may be forbidden to have them. But there is usually no
restriction on having a long, sturdy 5-cell flashlight. It can be openly
carried without raising eyebrows of passing pedestrians. And, if you know
how to use a police baton, the flashlight can be an effective substitute.
(Books on how to use police batons are in CRIMECAT.) CFI will try to locate
a source of supply of rubber-case flashlights and make them available to
CrimeFighters. Look for announcements in future newsletters or CRIMECAT.)
If the violation involves a strong or violent argument, or force used in
resisting the arrest, you might consider putting handcuffs on the suspect
if you have them with you. (Nylon "ties" are inexpensive and lightweight.)
Search and Seizure
A search and seizure may be required as part of the arrest procedure when
the person being arrested might be known to be, or is reasonably suspected
of carrying a dangerous weapon or stolen property or drugs.
Law enforcement agents are trained to search a suspect's body (frisking).
If you don't know exactly what you're doing or how to go about it, don't
do it. It may put you into physical danger unless you have another person
backing you up. When it's known by police that the arrest may involve
women suspects, a policewoman is used to conduct a body search of female
suspects. A male citizen attempting a body search of a female suspect could
be accused of unlawful sexual assault.
Most lawbreakers won't become violent if they are just "talked to," but
they may strongly resent a citizen CrimeFighter forcing them into an
embarrassing situation -- such as "taking up the position" for a body frisk
and the further indignity of handcuffing. When possible, avoid such
tactics. Try to be polite and considerate as possible when dealing with
people. Bullying tactics can backfire by escalating a simple arrest into a
brawl and the possibility of tempers exploding with weapons being drawn and
used. Never start a fight or provoke someone into a fight. CrimeFighters
should try be a perfect gentleman as much as possible -- when practical.
Turning Suspects Over to Police
If you have a cellular phone, call the police and ask them to take the
suspect into custody. If you don't have a cellular phone, ask anyone at
hand to call the police for you. Or, tell the person to "come with me to a
pay phone so I can call the police".
Remind suspects that if they refuse to accompany you to a police station or
wait for the police to arrive at the scene, they can be charged with
"resisting arrest" and "escaping from an arrest" -- which are either
misdemeanors or a felonies depending on the charges pending. Refusing to go
with you to a pay phone where you can call the police might be considered
by the court as the same as resisting arrest and might justify force, if
force is required.
If you have no cellular phone to contact police, politely order the person
to accompany you to a police station via taxi. (Your own vehicle is not
recommended if you have to do the driving and are alone.)
If the lawbreaker refuses to accompany you to a police station or wait for
police to arrive, try to obtain a name and address by tailing the person or
obtaining the vehicle's license plate number. If you have witnesses, obtain
their names and addresses. If you have all the information and witnesses
(or other evidence such as a videotape recording) notify police as soon as
possible. Let the police take the suspect into custody. Never use brute
force when force isn't required -- or can be avoided.
According to Bob Burton, a seasoned veteran at making arrests in his bail
recovery business, most people arrested (about 70% of the time) recognize
they're caught and don't offer physical resistance. The majority who resist
arrest do so by attempting to run away. You might get shoved or pushed but
seldom knifed or shot. But you never know. Expect violence and be prepared
for it. Always have a backup person with you when you know you're arresting
a lawbreaker who is known to be a dangerous person.
Common sense should be exercised when making an arrest. Unless it's an
emergency, try to avoid making an arrest inside a shopping mall or public
place where there are many pedestrians. If the suspect is a woman, a common
tactic is making a screaming accusation of sexual assault or molestation
against you. Other people might then get involved by thinking you are
unlawfully attacking an innocent person and may otherwise block or thwart
the attempted arrest. If you or the suspect use weapons, innocent bystand-
ers may get hurt -- or become hostages. When possible, wait for a better
time and place to apprehend lawbreakers. Choose uncrowded places to reduce
risk to bystanders and to yourself.
When and if violence is required, or is considered imminent by the law-
breaker against you, it's wise to back off if you can. Report it as soon
as possible and let law enforcements agents make the arrest. Although
there may be exceptions to this rule of "no violence," it's better to be
safe than sorry. Other than physical risk to life and limb to either party,
there's also a lawsuit liability to consider and avoid.
Follow Up
If the lawbreaker drives away, write down the license plate number and
describe the vehicle. Follow the car if you can while you notify the police
on your cellular phone and ask for their assistance. If the pursued suspect
notices you and takes evasive action, such as a high-speed driving, abort
the chase. Immediately contact the police, advise them of the particulars
and let them dispatch patrol cars to intercept and apprehend the violator.
Other Things to Know and Understand
When an arrest is made the person is physically detained or "taken into
custody" (usually by handcuffing). The general rule was (note the past
tense) actual contact had to be made. For many years it was considered
important to at least touch the person, however gently, when saying "you
are under arrest". That is no longer the rule.
Reaching out to touch a person on the arm or shoulder could be dangerous.
Such a move could be interpreted as a hostile gesture and the beginning of
physical violence. It could prompt a similar or more violent reaction. The
resultant shoving and pushing could escalate to a fist fight or the drawing
of weapons. However, if someone resists arrest, physical contact and
matching force is usually necessary.
Elements of an Arrest
1. Intent: Stopping a person without intending to make an arrest is not an
arrest. For example, just stopping someone to ask questions doesn't
constitute an arrest.
An arrest isn't official until the intent to arrest is communicated to the
person being arrested by the person making the arrest. The arrestor must
identify himself or herself and the authority to make the arrest (if the
arrestor is not in police uniform) and the reason for the arrest.
The Fourth Amendment of the U.S. Constitution includes specific phrases to
protect citizens from unreasonable search and seizure ("The right of the
people to be secure in their persons,... against unreasonable search and
seizures ... shall not be violated, and no warrants shall issue, but upon
probable cause, and particularly describing the persons...to be seized.")
In addition, the Fourth Amendment's guarantee of the right of privacy is
enforceable through the due process clause of the Fourteenth Amendment, and
identical or similar provisions are found in the constitutions of each
state. Law officers (and private citizens) are not permitted to randomly
stop anyone for "questioning" unless they have probable cause. It also
means that officers or anyone else can't stop someone and say that they are
under arrest in order to detain them for personal reasons (false arrest).
Example: A motorcycle cop sees a pretty woman in a car and wants to talk to
her to get her name and address, and perhaps a date. He signals her to pull
over to the curb under authority of law (his uniform) to answer his
personal questions and engage in ordinary conversation. If she wasn't
amused, and complained, the amorous cop could be sued for violating her
civil rights. He could also face disciplinary action. But she couldn't sue
for false arrest if she wasn't placed under arrest and the officer didn't
intend to arrest her. Stopping someone doesn't, by itself, constitute an
arrest until the intent to arrest and to detain the person is communicated.
Apprehending or physically stopping anyone from continuing on their way,
for personal reasons but under the guise of law, is a violation of civil
rights.
2. Authority. Police officers are restricted to their own respective areas
of jurisdiction. An officer who crosses into another area outside his or
her jurisdiction has no legal authority as an officer to make a lawful
arrest. There are two exceptions. A hot pursuit of a felony suspect can be
arrested in another jurisdiction. (Generally, "hot pursuit" authority to
make an arrest in another State does not apply to misdemeanors.) And, a
police officer can make a citizen arrest outside his or her jurisdiction.
3. Control. The actions of the person making an arrest must result in
physical and mental control over the person arrested. In 1889 the Supreme
Court of North Carolina stated: "The certain and most unequivocal method of
making an arrest is by the actual seizure of the person to be arrested, but
this is not essential; it is sufficient if the person be within the control
of the officer, with power of actual seizure if necessary. The officer need
not touch the person of such party to make the arrest effectual, but he
must have, or intend to have, control of the party's person. This seems to
be necessary to constitute a valid arrest."
4. Probable Cause. Reasonable cause, probable cause, or good reason to
believe, have been deemed to exist when: (a) a person resembles the one
accused and fails to identify himself or herself as a person who did not
commit the felony. (b) the person's movements or actions are similar to
those of the suspect; (c) it becomes known that the person to be arrested
committed a felony or was in the company of the perpetrator before or after
commission of same; or (d) the person to be arrested has some of the
proceeds of the felony in his or her possession or has been seen leaving
the place where the felony was committed.
Probable cause may be defined as: having many known facts, based on what
has been seen and heard, knowledge of the person, time of day or night, and
other incriminating circumstantial evidence, plus the officer's experience
and training, all of which might lead a person to a conclusion the suspect
is probably guilty and should be arrested. A few excerpts from court
decisions may help to provide better understanding on the subject of
probable cause:
"We have indicated on many occasions that there are a few absolutes in the
area of law dealing with what constitutes probable cause for arrest. We
have also emphasized from time to time that probable cause is not to be
evaluated from a remote vantage point of a library, but rather from the
view point of a prudent and cautious police officer on the scene at the
time of the arrest."
"Mere suspicion is not enough to constitute probable cause...especially if
it is mere general suspicion. An arrest cannot be justified on the mere
belief that a person has been guilty of an offense, if such belief has no
foundation in fact or has insufficient circumstances on which to rest, or
if the person arresting unreasonably acts at the request of a third person
who himself has a mere suspicion of the guilt of the one arrested.
Furthermore, to afford a justification, there must be not only a real
belief and reasonable grounds for it, but also, where there is opportunity
to make inquiry, proper investigation into the facts."
"Mere suspicion, based on the arrested person's reputation and his presence
in the vicinity where the crime occurred, does not constitute probable
cause. Thus, the fact that the person arrested has a jail record and has
admitted previous commissions of the same offense for which he is arrested
does not enlarge the authority of the officer to arrest, and is no justi-
fication for an illegal arrest without a warrant."
"Flight of the suspect is an important circumstance in the knowledge of the
officer, tending to justify arrest without a warrant. However, it has been
said that every man has a right to oppose an illegal arrest by flight, and
the fact that he does so will not authorize his arrest as a fugitive."
Comment: If an officer receives first-hand information from a witness, plus
tangible and intangible facts also known to the officer, that may create
probable cause.
Citizen Arrest Based on "Suspicion"
Police often make arrests based on "probable cause" or" sufficient reason"
to believe a crime has been committed or might be committed. A citizen
arrest for misdemeanors is restricted in this sense. In most States, a
citizen arrest for misdemeanors or petty offenses based on suspicion only
isn't authorized no matter what the circumstances might be.
Citizen arrests for felonies should not be made on "probable cause." Few
citizens are trained and experienced enough to make this important judgment
call. If the arrest is not lawfully made and violence was required to
subdue the arrested person fleeing from an unlawful arrest, it could result
in a valid lawsuit against the citizen.
Disturbing the Peace
Almost any illegal activity could be broadly interpreted by some courts as
"disturbing the peace." The law states that it is a citizen's right and
duty to make a citizen's arrest of the parties involved for disturbing the
peace (1) to prevent its continuance, (2) immediately after it has been
committed, or (3) if it appears that the disturbance may be continued
afterwards. This right and duty usually includes the right for a citizen to
pursue and apprehend lawbreakers but doesn't include high-speed pursuit by
a vehicle to make an arrest after suspects leave the scene of the crime.
"Reading The Rights"
Most readers are aware of this standard procedure when an arrest is made by
police. For those not familiar with the Miranda case, it's the right of a
person arrested to call a lawyer for advice, and not to incriminate
oneself, among others. The following rights statement is recited to persons
who have just been arrested:
Miranda Warning
1. You have the right to remain silent and not make any statements at all
and any statement you make may be used against you at your trial;
2. Any statements you make may be used as evidence against you in court;
3. You have the right to have a lawyer present to advise you prior to and
during any questioning;
4. If you are unable to employ a lawyer, you have the right to have a
lawyer appointed to advise you prior to and during any questioning; and
5. You have the right to terminate the interview at any time.
Waiver
After the warning is made, and in order to secure a waiver, the following
questions should be asked and an affirmative reply secured to each
question)
1. Do you understand each one of these rights that are explained to you?
2. Having in mind these rights, do you want to talk with us now?
* * * * * *
An arrest properly made in all other respects may or may not be valid if
the officer doesn't advise the lawbreaker of these rights. A police
officer making an arrest is required by law to advise the suspect of his
rights "as soon as possible," -- but not necessarily at the time of the
arrest! It can be at a later time, but should be before questioning begins.
A police officer who interrogates a suspect without a Miranda warning can
find any inculpatory statements suppressed by the courts.
A private citizen is not constrained by this constitutional issue. Few, if
any, citizens carry Miranda cards in their pockets to read from and haven't
memorized them. Accordingly, damaging statements made to a private citizen
without Miranda warnings have been admissible in court.
Again, it boils down to the Constitution and the restrictions on "police
powers." In this case, the Fifth Amendment is designed to prevent police
from browbeating or forcing persons to confess or testify against them-
selves. Although a security guard may dress like a police officer, the
guard isn't a sworn officer. Any questioning by a security guard or a
private citizen that results in the admission of guilt ("I did it") is
admissible in court even if the Miranda warning was not given.
Legal Terminology & Search Warrants
Complaint
A complaint is a charge, presented to a magistrate or Justice of the Peace
having legal jurisdiction, that a person named (or an unknown person) has
committed a particular offense, in order that a prosecution may be started.
To allow a magistrate to issue a warrant, a proper complaint under oath
must be brought before the magistrate. The magistrate will then decide
whether a crime has been committed and if probable cause exists to suspect
the accused.
(A "magistrate" is the title of a judge of an inferior (lower) court with
limited criminal, and sometimes limited civil, jurisdiction.)
Arrest by Warrant
A warrant is a writ issued by an authorized magistrate to an officer,
requiring the officer to arrest the lawbreaker or suspect named in the
warrant, and to bring that person before the magistrate to be dealt with
according to law.
(A "writ" is an order issued by a court or judge directing a public officer
or private person to do a specific act.)
Issuance of a Warrant
To obtain a warrant for an arrest, a formal complaint must be made before a
magistrate. The complaint must show either that a crime has been committed
or that probable cause exists to suspect the accused. After indictment, a
bench warrant for the accused's arrest is usually issued.
(Indictment: A formal accusation made by a grand jury charging a person
with having committed a crime. Bench warrant: An arrest warrant issued from
the bench, or court, for the arrest of one named or described therein.)
Method of Arrest with a Warrant
When making an arrest by virtue of a warrant, the officer or CrimeFighter
must tell the suspect of the cause of the arrest and that a warrant has
been issued for the arrest. This requirement is waived if the suspect runs
away or forcibly resists lawful arrest. (The officers or CrimeFighters may
not have the opportunity to tell the suspect who they are or why the arrest
is being made.) The officer or CrimeFighter doesn't need to have the arrest
warrant at the time of the arrest but it must be produced as soon as
possible after the arrest.
Method of Arrest Without a Warrant
The officer or CrimeFighter must tell the suspect of his or her authority
(if not in police uniform) as well as the reason for their arrest. This
requirement is waived when the suspect is caught in the commission of a
crime, is chased immediately after the crime was committed, after an escape
from custody, or if the suspect forcibly resists arrest before the officer
or CrimeFighter can identify himself and say why the arrest is being made.
Warrants -- General
A citizen's arrest is usually authorized (or required, for a felony
committed in the arrestor's presence), but a citizen making an arrest is
restricted in some ways that a police officer is not. The most common
restriction, when applicable by State law, is that a citizen arrest may or
may not be made without a warrant. It is also usually further restricted
to felony violations only. (Check with your District Attorney or lawyer.)
A warrant for an arrest is allowed only for a specific violation(s) and a
person must be named in the warrant. A "John Doe" warrant may be used, but
requires extenuating circumstances not usually available for a citizen
arrest. A separate application and warrant must be issued for each
individual being arrested. Warrants for arrest are usually obtained from a
magistrate, a Justice of the Peace, or a judge.
In some situations, a citizen may be issued a warrant for the arrest of a
lawbreaker but they aren't issued easily to a private person who is unknown
to the magistrate or Justice of the Peace.
Exceptions: In a felony observed by a citizen or when an act involves
disturbing the peace, a warrant for the arrest is usually not necessary.
It's usually not necessary when a crime is being committed or a "wanted"
person is seen in a public place where an arrest can be made.
Warrants are sometimes required for misdemeanors but never issued for petty
offenses. A summons to appear in court is the usual procedure for
prosecution of petty offenses and most misdemeanors. Failing to answer the
summons and appear in court is a "contempt of court" violation, which may
result in a felony charge.
Search Warrants
Search warrants are not required when an arrest has been made and a frisk
(not a strip) search is made for hidden weapons. The "pat down" for weapons
is incidental to the arrest and no search warrant is needed. When a
vehicle is stopped for a driving infraction, it's permissible for the
officer to look around the immediate area (including the interior of a car)
for dope, booze, and guns that may be visible.
A complete search of the vehicle is not authorized without a search
warrant, unless there is "probable cause" to believe the vehicle or its
occupants have contraband or incriminating evidence. The common-sense
reason is that if a search isn't made at that time, the vehicle will be
moved and the evidence also removed. When police make an arrest, they are
authorized to make a cursory search "incidental to the arrest."
Search warrants are required when a suspect's vehicle or home is searched
for contraband before an arrest is made. Police who make such illegal
searches "looking for a reason to make an arrest" would be violating a
citizen's rights against unreasonable search and seizure laws. Any evidence
found during an illegal search would not be allowed as evidence. This law
discourages unlawful searches by excluding any such evidence. This is
called the "exclusionary rule".
The exclusionary rule applies to law enforcement agents to prevent abuse of
police powers. It does not apply to citizens. If a CrimeFighter were to
obtain evidence by an illegal search and gave it to the police it could be
used as evidence. The qualifier is the citizen must not be working under
the direction of police. If the CrimeFighter was working with the police,
or under their control, it could be said the action was instigated by
police. Any such evidence obtained would fall under the exclusionary rule.
If a citizen acting on his own initiative, without police knowledge or
sanction, and unknowingly or accidentally but illegally, obtained certain
evidence and later gave the evidence to the police anonymously (or under a
confidential agreement when negotiating for a reward), it could be used
against the lawbreaker in court.
That doesn't make it legal for any citizen to break the law, but he might
get away with it if police were to later (after the fact) guarantee
immunity from prosecution in exchange for the evidence they need. This is
standard procedure when a lawbreaker is flipped to provide information on
other lawbreakers. The snitch's own crime is overlooked or dismissed in
order to get information on other criminals who are more important. I
believe that's called "police's discretionary powers". As the official
prosecutor, you may have similar discretionary powers.
Of course, there is a possibility the citizen might be sued for violating
the lawbreaker's civil rights -- if the defendant learned the name of the
citizen who illegally obtained the evidence.
But, if the information or physical evidence was given to police under a
confidential agreement by an informant, or anonymously by mail, the source
of the information can't be disclosed. Confidentiality of informants is
guaranteed by law. That law is Title 5 USCS 552.
Civil Rights
Courts are protective of the civil liberties of its citizens - even though
it means a few criminals may go free. Criminal law and civil law systems
are different and carry different burdens of proof. Even if criminal
charges are accepted (and in some cases even if the suspect is found
guilty) the person making an arrest can be sued for civil damages. This is
a dilemma every police officer faces daily. (And police are better trained
than CrimeFighters!)
Example
Five person arrested in a Dekalb, Illinois, drug raid were awarded $22,000
by a Federal jury which found that three policemen had violated the
plaintiff's civil rights. The former Northern Illinois University students
and their wives were among 12 persons who sued the police for $1.2 million
in damages. The suit alleged that three law enforcement officers planned
and executed the raid without search or arrest warrants. One Northern
Illinois University security officer, a Dekalb city police officer, and a
Dekalb County sheriff's deputy were held liable for false arrest, false
imprisonment, and assault and battery. (Richards vs. Busby)
As you can see, police aren't exempt from the law either. Many such
incidents are generally ignored by citizens without lawsuits, mainly
because of intimidation factor by a badge and uniform. Be that as it may,
citizens will be quickly pounced upon for infringing anyone's civil rights.
CrimeFighters will be even more vulnerable. Be extra cautious. Make sure
you know what you're doing. Protect yourself against such lawsuits.
Federal vs State laws
The information in this book pertains to Federal law, but you can use it as
a guide. When working with the FBI and prosecution in federal courts
federal law is used. Most misdemeanors will be prosecuted under State laws,
which are similar to but not always identical to Federal law. Every State
has different standards for search warrants. You will need to know the laws
of the State in which you reside.
Arrest Laws (Federal)
Title 18 USCS 2231
Assault or Resistance (search and seizure)
(a) Whoever forcibly assaults, resists, opposes, prevents, impedes,
intimidates, or interferes with any person authorized to serve or execute
search warrants or to make searches and seizures while engaged in the
performance of his duties with regard thereto or on account of the
performance of his duties, shall be fined not more than $5,000 or
imprisoned not more than three years, or both; and-
(b) Whoever, in committing any act in violation of this section, uses any
deadly or dangerous weapon, shall be fined not more than $10,000 or
imprisoned not more than ten years, or both."
Title 18 USCS 2232
Destruction or removal of property to prevent seizure.
Whoever, before, during, or after seizure of any property by any person
authorized to make searches and seizures, in order to prevent the seizure
or securing of any goods, wares, or merchandise by such person, staves,
breaks, throws overboard, destroys, or removes the same, shall be fined not
more than $2,000 or imprisoned not more than one year, or both.
Title 18 USCS 2233
Rescue of seized property
Whoever forcibly rescues, dispossess, or attempts to rescue or dispossess
any property, articles, or objects after the same shall have been taken,
detained, or seized by any officer or other person under the authority of
any revenue law of the United States, or by any person authorized to make
searches and seizures, shall be fined not more than $2,000 or imprisoned
not more than two years, or both.
Title 18 USCS 2234
Authority Exceeded in Executing Warrant
Whoever, in executing a search warrant, willfully exceeds his authority or
exercises it with unnecessary severity, shall be fined not more than $1,000
or imprisoned not more than one year.
Title 18 USCS 2235
Search Warrant Procured Maliciously
Whoever maliciously and without probable cause procures a search warrant to
be issued and executed, shall be fined not more than $1,000 or imprisoned
not more than one year.
Title 18 USCS 2235
Searches Without Warrant
Whoever, being an officer, agent, or employee of the United States or any
department or agency thereof, engaged in the enforcement of any law of the
United States, searches any private dwelling used and occupied as such
dwelling without a warrant directing such search, or maliciously and
without reasonable cause searches any other building or property without a
search warrant, shall be fined not more than $1,000 or imprisoned not more
than one year, or both.
This section shall not apply to any person-
(a) serving a warrant of arrest; or
(b) arresting or attempting to arrest a person committing or attempting to
commit an offense in his presence, or who has committed or is suspected on
reasonable grounds of having committed a felony; or
(c) making a search at the request or invitation or with the consent of the
occupant of the premises.
Unofficial Analysis
Search warrants are normally restricted to law enforcement agents. However,
under (2236)(a) any citizen who has obtained a warrant for an arrest would
seem to be operating "under color of law" and have the same authority to
search without a separate search warrant.
By the same reasoning, a private person who has authority under common law
to arrest any person who falls into the description in 2236 (b) and (c)
(above) might also have the same authority for search warrants as a police
officer, when acting under the guidelines and provisions of common law or
under various State laws pertaining to citizens arrests.
The Law is Not Guaranteed to be Equal Everywhere
The law is not determined by a precise mathematical formula. Court
decisions are based on many unique circumstances with varying degrees of
intent or guilt determined by the evidence presented to the court. In
different courts, and in different States, the verdict and penalties imposed
are often quite different. Lawyers recognize this and often try to obtain a
change of trial date or a different jurisdiction to avoid a judge with a
known harsh attitude towards certain offenses ("shopping for judges").
Criminal law is not determined equally or justice rendered the same in
every court. In civil law, decisions are influenced more by the best
lawyer's argument, and how it's presented, than by anything else.
The law on citizen's arrest and search and seizure varies from State to
State and often seems contradictory. What's valid in one State may be
invalid in another or simply not enforced under circumstances that are
often unknown at the time of pursuit and a citizen arrest.
The above Federal laws are useful as guidelines for general information.
State laws vary and all laws are constantly being changed. Before you
assume you have the right to make citizen arrests or searches, verify your
standing first. Check it out with a magistrate, justice of the peace, chief
of police, or a lawyer who specializes in criminal law.
Get Specific Legal Advice
There is no Federal law (as such) on citizens arrests, but many States have
enacted statutes that provide guidelines as well as restrictions. In the
absence of State law, common law and common sense prevail. If you plan on
being an active CrimeFighter, obtain specific advice from a lawyer in in
your State on making citizen arrests.
Obtaining Further Information
Visit a library to read case law under the subjects "Arrest," and "Search
and Seizure." They are mentioned in detail in American Jurisprudence
volumes. Case law mentions the problems of both prosecution and defense and
the courts' decisions on same. Use case law as a guide to how the courts
might rule on your similar actions.
Like Qui Tam law, common law on citizen arrests has been established by
precedents that go way back in time. Decisions handed down from various
cases (case law) help to ascertain what can be done or shouldn't be done.
R E V I E W
The Steps Involved in a Citizen Arrest
(1) A CrimeFighter may make an arrest when the person to be arrested has,
in his or her presence, committed a misdemeanor amounting to a breach of
the peace or a felony, or when a felony has been committed and reasonable
grounds exist to believe the person to be arrested has committed the act.
(2) A CrimeFighter, when making an arrest, must tell the suspect being
arrested of the intention to arrest and the cause of the arrest. That's not
necessary if the suspect is engaged in the commission of an offense, is
chased after its commission, after an escape, or forcibly resists before
the CrimeFighter has opportunity to inform the person.
(3) After making an arrest a citizen must, without unnecessary delay,
deliver the suspect to a police officer, or take them to a magistrate or
police station.
Other Things to be Considered
(4) The fact that an authorized arrest is made in an unauthorized manner
(excessive force or illegal actions) may make the CrimeFighter liable, but
will not adversely affect the state's right to detain the accused if lawful
cause exists.
(5) If an arrest is authorized, attempted, or made in a proper manner, the
person making it, whether an officer or a CrimeFighter, merely performs a
duty, and that person incurs no liability, because the law protects the
arrestor. An honest mistake by a CrimeFighter will usually be forgiven by
an innocent person -- if you act like a gentleman. Lawful citizen arrests
(under color of law) are protected by law from malicious lawsuits the same
as policemen are. However, if the CrimeFighter uses unnecessary force on
anyone or subjects them to verbal abuse, and the arrest is later considered
unlawful a CrimeFighter can expect a lawsuit.
(6) If the suspect resists arrest, he or she is criminally liable for the
result of the resistance. That is, if the resistance involves force, the
suspect is liable for assault and battery charges. If the suspect, or
anyone helping the suspect in resisting, kills the officer or CrimeFighter
making the arrest, the charge will be murder.
(7) If a person unlawfully flees from custody after having been legally
arrested, he or she is guilty of a misdemeanor known as "escape." If the
suspect breaks from or forcibly escapes from the place of imprisonment, he
or she is guilty of "prison breach," which is either a misdemeanor or a
felony, depending on the circumstances.
(8) Third parties: If third persons interfere and try to prevent an arrest,
such interference is considered a misdemeanor or a felony. If they use
force, they are also guilty of assault and battery. If any deadly force
used results in the killing of the officer or CrimeFighter trying to make
the arrest, they are guilty of murder. If they help the escape of the
person after the arrest has been made, they are guilty of "rescue," which
can be either a misdemeanor or a felony.
(9) An illegal arrest, without legal authority, warrant, or probable cause
may result in charges of false arrest and false imprisonment. If unnecess-
ary force was used, the arrest may lead to charges of assault and battery.
(10) A false arrest may be lawfully resisted by anyone using any necessary
force required to obtain freedom from restraint. This resistance does not
include the use of deadly force which could kill or cause serious harm.
(11) If the person resisting an unlawful arrest kills the person trying to
make the illegal arrest, the fact that the arrest was illegal is a
mitigating factor which may downgrade homicide charges to manslaughter.
(12) Within certain limits, other people, especially relatives, may legally
interfere to prevent an unlawful arrest.
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