You replay the events leading up to your arrest over and over in your mind. “How did I end up here? I don’t believe I should be going through this. Was my arrest wrong?” While some of the legalities can be tricky and hotly debated, unlawful arrests do occur. So what is an unlawful arrest? And more importantly, what can you do about it?
What is a Lawful Arrest?
One of the main factors of a lawful arrest is “probable cause.”
Until you have been formally arrested or otherwise detained, the officer cannot stop you from walking away. However, once you are no longer free to leave, an arrest has taken place.
The Fourth Amendment of the U.S. Constitution allows police to make an arrest as long as they have probable cause: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
FindLaw outlines probable cause as follows:
• Probable cause is established through factual evidence, and not just suspicions or hunches.
• Probable cause can be established through observation alone (sight, smell, sound, etc.), and includes observations that create suspicion based on a familiar pattern of criminal activity.
• Probable cause can be based on information from witnesses, victims, and informants.
• Probable cause can be based on police expertise, such as recognition of gang signs, detection of tools that could be used to commit certain crimes, or knowledge of movements or gestures that indicate criminal activity.
• Probable cause can be based on circumstantial evidence that only indirectly indicates that a crime has occurred, such as a broken window.
When someone is legally arrested, items they have may be taken.
In a 1969 court case, the court held that: “When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.”
What is an Unlawful Arrest?
A false arrest, or an unlawful arrest, is where the person who was arrested says he or she was arrested without legal justification or without an arrest warrant.
• Arrest of the wrong person.
• Arrest of someone without probable cause.
• Arrest without just cause.
• Arrest without an arrest warrant or legal justification.
• Arrest based on race.
• Arrest made for personal gain.
Most people who are involved in a wrongful arrest case usually file a lawsuit against the officer and police department for damages.
For example, in a landmark decision on April 20, 2012, the Michigan Supreme Court upheld 5-2 the “common-law” right to resist unlawful arrests, warrantless home invasions, and other unlawful conduct by the police. The case had involved Angel Moreno Jr. of Holland, Michigan, who was charged in December 2008 with violating a widely used state statute for physically resisting an attempt by two Holland police officers to shove their way into his home.
If you Need Help
It can be very difficult to know when, if ever, it is permissible to resist arrest and what amount of force may be used. Because of this, if you are being arrested, you should go peacefully. If you then feel that you have been wrongfully arrested, you can file a complaint for police misconduct.
If you feel you have been the victim of an unlawful arrest, you should seek help from an attorney.
You also may reach out to us anytime for answers to your questions or advice on where to find the answers. We are available 24 hours a day at 313-244-0669.
