An arrest of a person is a seizure of that person. The arrest must be reasonable under the Fourth Amendment. This means there must be a factual basis for believing that the person to be arrested has committed a crime. This factual basis is also known as “probable cause”. Probable cause will be found if there is a “fair probability” that the person committed the crime. Is it likely the person committed the crime? In other words, was a crime probably committed and did the accused probably commit that crime? Each case is different.
Factors the Court uses to determine if there is Probable Cause to Make an Arrest:
| The officer’s observation of conduct that, in light of his training and experience, appears to be criminal |
| Information the officer receives from other officers, citizens, and informants |
| The time of day or night |
| Whether the area is a high crime area |
| The suspect’s proximity to the location where a crime recently was committed or to the home, car, or business were criminal activity may be taking place |
| Whether the suspect is a stranger to the area |
| The suspect’s reaction to the officer’s presence, including flight after seeing the officer |
| The officer’s knowledge of the suspect’s prior criminal record and activities, if they are relevant to the crime the suspect may be committing |
| The suspect’s flight from the scene of a crime |
| Particularly in airport drug arrest, the suspects actions that may match factors set out in a profile of criminal behavior |
Possible Remedies for an Unlawful Arrest:
| Exclusion of resulting evidence from criminal proceedings | Possible depending on case, See N.C.G.S. 15 A-974 |
| Civil lawsuit against the officer who made the illegal arrest | Difficult, See Section 1983 of Title 42 of the United State Code |
| Criminal prosecution against the officer | Unlikely, see 18 U.S.C. Section 241, 18 U.S.C. Section 242; possible prosecution under state criminal laws as assault and battery, but unlikely. |
| Disciplinary action against the officer by the officers employing agency | Unlikely |
Important Note: A brief stop of a person on a street by a law enforcement officer to question the person does not constitute an arrest. An investigative stop is not an arrest.
Arrest Without a Warrant
Felonies: A law enforcement officer may arrest a person without a warrant for a felony if there is probable cause to believe the person has committed a felony. It is not necessary that the felony actually have been committed in the officer’s presence. However even for a felony, the officer may have to obtain an arrest or search warrant if the officer needs to enter a person’s home to make the arrest.
Misdemeanors: A law enforcement officer may arrest a person without a warrant for a misdemeanor if there is probable cause to believe the person has committed a misdemeanor in the officer’s presence.
A law enforcement officer may arrest a person without a warrant for a misdemeanor out of theofficer’s presence and there is probable cause to believe the person has committed a misdemeanor and the person 1)will not be apprehended unless immediately arrested; or 2) the person may cause physical injury to himself or herself or others unless immediately arrested; or 3) a person may damage property unless immediately arrested; and the person has committed one of the following offenses:
- shoplifting
- driving while impaired
- commercial impaired driving
- domestic criminal trespass
- simple assault or affray, assault inflicting serious injury, assault with a deadly weapon, assault on a female, or assault by pointing a gun (victim and accused had personal relationship).
- violation of domestic violence protective order
Arrest With a Warrant
A law enforcement officer may arrest a person at any time if he or she has a warrant in their possession for that person. A law enforcement officer may arrest a person at any time if the officer has knowledge that a warrant has been issued for that person.
Issuance of the Arrest Warrant
Warrants valid in the State of North Carolina may be issued by magistrates, clerks, judges, and justices. Warrants must be based upon probable cause, supported by an oath or affirmation.
Special Note: Hearsay evidence may be considered by the person issuing the warrant when considering if there is probable cause.
Gregory Kornegay,
