Standards for Warrantless Arrests
A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
(a) Any peace officer may arrest, without warrant:
(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws;
(2) persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person;
(3) persons who the peace officer has probable cause to believe have committed an offense defined by Section 25.07, Penal Code, if the offense is not committed in the presence of the peace officer;
(a) Except as otherwise provided by this article, in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.
Arrest Versus Summons
(b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the person that contains:…
—a warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment
- in State v. Adams, 2016
Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is `reasonable,' " "[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, 332 U. S. 581, 585 (1948). Moreover, there is nothing in the Court's prior cases indicating that under the 417*417 Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary.
"The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony . . . ." Carroll v. United States, 267 U. S. 132, 156 (1925). In Henry v. United States, 361 U. S. 98 (1959), the Court dealt with an FBI agent's warrantless arrest under 18 U. S. C. § 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard. . . ." 361 U. S., at 100. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, 362 U. S. 217, 232 (1960), the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, 358 U. S. 307 (1959), was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful . . . ." Id., at 310. Ker v. California, 374 U. S. 23, 34-35 (1963) (opinion of Clark, J.), reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause . . ." and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely 418*418 because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U. S. 103, 113 (1975).[6]
The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant 22 Mich. L. Rev. 541, 547-550, 686-688 (1924); 419*419 Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (K. B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng. Rep. 585 (K. B. 1827). This has also been the prevailing rule under state constitutions and statutes. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals." Kurtz v. Moffitt, 115 U. S. 487, 504 (1885).
…
This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.[13] Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, 380 U. S. 102, 106 (1965); Aguilar v. Texas, 378 U. S. 108, 111 (1964); Wong Sun v. United States, 371 U. S. 471, 479-480 (1963). But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable 424*424 to get a warrant, whether the suspect was about to flee, and the like.
Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary.
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Justice GORSUCH, with whom Justice THOMAS and Justice ALITO join, dissenting.
Ultimately, the majority seeks to invoke Samuel Johnson's dictionary and Payton, 445 U.S., at 585, 100 S.Ct. 1371, to confirm only the anodyne point that some sort of "linkage" existed at common law between the concepts of "arrests" and "seizures." Ante, at 995-996. Yet, even here it turns out there is more to the story. The majority neglects to mention that Johnson proceeded to define an "arrest" as a "caption" of the person, "a stop or stay," a "restraint of a man's person, depriving him of his own will," and "the beginning of imprisonment." 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785). "To arrest," Johnson said, was "[t]o seize," "to detain by power," "[t]o withhold; to hinder," and "[t]o stop motion." Ibid. Meanwhile, the sentence fragment the majority quotes from Payton turns out to have originated in Justice Powell's concurrence in United States v. Watson, 423 U.S. 411, 428, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). And looking to that sentence in full, it is plain Justice Powell, too, understood an arrest not as a touching, but as "the taking hold of one's person." Ibid. Thus, even the majority's best sources only wind up pointing us back to the traditional possession rule.
…
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court explained that "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Id., at 19, n. 16, 88 S.Ct. 1868 (emphasis added). The restraint of liberty Terry referred to was "interference" with a person's "freedom of movement." United States v. Jacobsen, 466 U.S. 109, 113, n. 5, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). As the Court put it in Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), a decision issued just two years before Hodari D.: "It is clear, in other words, that a Fourth Amendment seizure" occurs "only when there is a governmental termination of freedom of movement through means intentionally applied." 489 U.S., at 597, 109 S.Ct. 1378 (emphasis deleted).
…
Nor, if we are honest, does today's decision promise much help to anyone else. Like Ms. Torres, many seeking to sue officers will be able to bring state tort claims. Even for those whose only recourse is a federal lawsuit, the majority's new rule seems likely to accomplish little. This Court has already said that a remedy lies under § 1983 and the Fourteenth Amendment for police conduct that "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 840, 845-847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). At the same time, qualified immunity poses a daunting hurdle for those seeking to recover for less egregious police behavior. In our own case, Ms. Torres has yet to clear that bar and still faces it on remand. So, at the end of it all, the majority's new rule will help only those who (1) lack a state-law remedy, (2) evade custody, (3) after some physical contact by the police, (4) where the contact was sufficient to show an objective intent to restrain, (5) and where the police acted "unreasonably" in light of clearly established law, (6) but the police conduct was not "conscience shocking." With qualification heaped on qualification, that can describe only a vanishingly small number of cases.
ON THE USE OF EXCESSIVE FORCE IN MAKING AN ARREST
Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the countervailing governmental interests at stake.
- in Bland v. Lyle, 2020
aham set forth several evaluation guidelines and factors to be taken into consideration when evaluating an officer’s use of force. These evaluation guidelines include one overarching direction to anybody who chooses to opine about an officer’s force response:
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.
Once the person that chooses to render his/her opinion understands this overarching direction, they also need to be aware of these guidelines while making their determination of the reasonableness of the officer’s force response:
1.) Judged through the perspective of a reasonable officer
a. Officer with same or similar training and experience
b. Facing similar circumstances
c. Act the same way or use similar judgment
2.) Based on the totality of the facts known to the officer at the time the force was applied
a. No matter how compelling the evidence is to be found later
b. No hindsight evaluation
3.) Based on the facts known to the officer without regard to the underlying intent or motivation
4.) Based on the knowledge the officer acted properly under established law at the time
In order for an officer’s use of force to be deemed “objectively reasonable,” his/her force response (“what” and “how”) must be reasonably balanced with the governmental interests at stake (“why”). The officer’s force response level (quantum) can be measured by evaluating:
1.) “what” force option was used, and
2.) “how” it was used.
Another way of viewing this would be to ask the question, “What was the reasonable expectation of injury?”
In Graham, the SCOTUS gave law enforcement several factors to examine when evaluating the “why” of an officer’s force option including, but not limited to:
1.) the severity of crime at issue,
2.) the threat of the suspect, and
3.) the level of resistance offered by the suspect.
Held: Because the car chase respondent initiated posed a substantial and immediate risk of serious physical injury to others, Scott's attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. Pp. 1773-1779.
(a) Qualified immunity requires resolution of a "threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272. Pp. 1773-1774.
(b) The record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff's version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion. Pp. 1774-1776.
I agree with Justice Scalia that a probable-cause hearing is sufficiently "prompt" under Gerstein only when provided immediately upon completion of the "administrative steps incident to arrest,"
- in Countyof Riverside v. McLaughlin, 1991
"Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships." Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Incarcerated defendants also face obvious obstacles to participating in their defense and are more likely to be convicted and sentenced to prison. See Campbell v. McGruder, 580 F.2d 521, 531 (D.C. Cir. 1978) (citing "disturbing evidence" that defendants on pre-trial release stand "a better chance of not being convicted or if convicted, of not receiving a prison sentence")
in JB v. ONONDAGA COUNTY, 2019
Detentions for Less Than 48 Hours
"[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein."
- in Johnson v. Crawford, 2015
Remedy for a McLaug hlin Viol a tion
—finding suppression of evidence was not the proper remedy for the McLaughlin rule violation—instead—a Bivens claim was the possible remedy for a McLaughlin rule violation
- in United States v. MISIOLEK, 2004
A Bivens action generally refers to a lawsuit for damages when a federal officer who is acting in the color of federal authority allegedly violates the U.S. Constitution by federal officers acting.
The plaintiff in a Bivens action must prove that a constitutionally protected right has been violated by the federal officers.
The term “Bivens action” comes from Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which the Supreme Court held that a violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures.
Arrests in t he Home
The Payton Rule
It is a "basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable."
- in US v. Chaparro, 2014
—the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest."
- in Williams v. Goodfriend, 2018
Reason to Believe the Suspect Is at Home
The appellate courts for the Second, Tenth, and District of Columbia Circuits have concluded that Payton's "reason to believe" standard refers to something less than probable cause. Id
- in United States v. Maley, 2020
ls the Arrest at Home or in Public?
The Second Circuit has held that "common halls and lobbies of multi-tenant buildings are not within an individual tenant's zone of privacy even though they are guarded by locked doors."
- in Waller v. City of Middletown, 2014
Hotels and Motels
“The protections against warrantless intrusions into the home announced in Payton apply with equal force to a properly rented hotel or motel room during the rental period. See, e.g., United States v. Morales, 737 F.2d 761 (8th Cir.1984). However, this is only the case as long as the arrestee has rightful possession of the room.”
Arrests in the Home of a Third Party
The Supreme Court has held that an arrest warrant does not carry with it the authority to enter the home of a third person to seize a suspect, and that to enter such a home police need to get a search warrant.
- in US v. Veal, 2006
“After Steagald, it is important for the officer to determine whether the suspect lives in the premises (in which case an arrest warrant is sufficient) or is merely a visitor (in which case a search warrant is required).”
When the police act without a warrant, the burden of proof is on the government. United States v. Melendez, 301 F.3d 27, 32 (1st Cir.2002)…
Consent is not voluntary if it is merely the acquiescence to a claim of lawful authority. Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788. Moreover, "[w]here there is coercion, there cannot be consent." Id. at 550, 88 S.Ct. 1788. Consent must be voluntary and courts look to several factors in order to determine whether consent was given voluntarily or through coercion. United States v. Barnett, 989 F.2d 546, 554-55 (1st Cir.1993)… In Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Supreme Court held that, in the absence of valid consent or exigent circumstances, warrantless searches are per se unreasonable and violate the Fourth Amendment.
Medina attacks the search of Cruz's residence on many fronts. The first and most significant hurdle he must overcome is his standing to challenge the search at all. The Supreme Court has held that the
capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.
Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990)(quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). An individual's "subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable". Id. at 95-96, 110 S.Ct. 1684 (internal quotations 268*268 and citations omitted). In Olson, the Supreme Court established that overnight guests have a legitimate expectation of privacy in their host's home. Id. at 98, 110 S.Ct. 1684. See also United States v. Romain, 393 F.3d 63, 68 (1st Cir.2004)(finding that a defendant who was a "fairly regular overnight guest" in a third party's apartment fell "squarely within the rule that an overnight guest has a legitimate expectation of privacy in his host's abode").
Temporary Visitors
"[I] n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; ie, one that has `a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and … - in People v. Pickett, 2013
—holding that a person who is present in another's home for a drug-related business purpose has no reasonable expectation of privacy - in US v. Nickens, 2004
Material Witness
“ In addition to the Federal statute·, every state provides for detention of material witnesses. The Supreme Court has cited the practice with approval in Stein v. New York, 346 U.S. 156, 184 (1953) and Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617 (1929).”
Arrest and Detention of Material Witnesses: Federal Law In Brief and Section 12 of the USA PATRIOT and Terrorism Prevention Reauthorization Act (H.R. 3199)- This report is an overview of the law under the federal material witness statute which authorizes the arrest of material witnesses, permits their release under essentially the same bail laws that apply to federal criminal defendants, but favors their release after their depositions have taken. A list of citations to comparable state statutes and a bibliography of law review articles and notes are appended.
Pretextual Use of Material Witness Detention: Ashcroft v. Al-Kidd
Held:
(a) Qualified immunity shields a government official from money damages unless (1) the official violated a statutory or constitutional right, and (2) that right was "clearly established" at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396. Where, as here, a court considers both prongs of this inquiry, this Court has the discretion to correct the lower court's errors at each step. P. 2080.
(b) Whether a detention is reasonable under the Fourth Amendment "is predominantly an objective inquiry." Indianapolis v. Edmond, 531 U.S. 32, 47, 121 S.Ct. 447, 148 L.Ed.2d 333. Courts ask whether "the circumstances, viewed objectively, justify [the challenged] action." Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168. Except for cases that involve special needs, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564, or administrative searches, e.g., Michigan v. Clifford, 464 U.S. 287, 294, 104 S.Ct. 641, 78 L.Ed.2d 477, this Court has almost uniformly rejected invitations to probe subjective intent. The Court of Appeals was 2078*2078 mistaken in believing that Edmond established that "`programmatic purpose' is relevant to Fourth Amendment analysis of programs of seizures without probable cause." 580 F.3d 949, 968. It was not the absence of probable cause that triggered Edmond's invalidating-purpose inquiry, but the checkpoints' failure to be based on "individualized suspicion." 531 U.S., at 47, 121 S.Ct. 447. Here a neutral Magistrate Judge issued a warrant authorizing al-Kidd's arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear. A warrant based on individualized suspicion grants more protection than existed in most of this Court's cases eschewing inquiries into intent, e.g., Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89, and Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889. Al-Kidd's contrary, narrow reading of those cases is rejected. Because he concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretext; there is no Fourth Amendment violation here. Pp. 2080-2083.
Cited in:
Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation marks omitted). "The judges of the district courts . . . [may] exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). "A right is clearly established in this circuit when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains." Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks omitted). The plaintiff bears the burden of demonstrating that the law was clearly established at the relevant time. Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000).
- in McFadden v. MEEKER HOUSING AUTHORITY, 2019
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