Elements of an Arrest

Man in handcuffs
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Real arrests do not work like they do in many movies and television shows. In fiction, arrests often happen quickly and without the constitutional requisites. This is for dramatic effect. In reality, arresting police officers must respect civilians’ constitutional rights when making arrests, even when an officer makes a warrantless arrest.

The Fourth Amendment of the United States Constitution contains multiple requirements that must be met for an arrest to be legally valid. These requirements center on one document: a valid arrest warrant, which is necessary for most arrests. An arrest warrant is valid only when it is supported by an oath or affirmation, there is probable cause to issue the warrant and the warrant is specific enough to accurately describe the individual under arrest.

A Specific Warrant

There are a few types of warrants a judge can issue to law enforcement. The type of warrant necessary for an officer to make an arrest is known as an arrest warrant. The procedure for obtaining an arrest warrant varies somewhat from state to state, but typically the procedure is similar to the following:

To obtain an arrest warrant, the officer must provide a written affidavit to the presiding judge. This affidavit must contain all relevant, specific information about the alleged incident. It is given under oath or, when the officer cannot take an oath due to religious restrictions, with an affirmation that the facts contained within are true. The affidavit must be specific enough to demonstrate that there is probable cause to arrest the alleged perpetrator. This specific information should include descriptive details about the alleged perpetrator, such as her approximate height, hairstyle and witnesses’ agreement that she was the one who committed the offense. An affidavit cannot be based on hearsay or vague descriptions.

If the judge approves the affidavit, he signs the warrant and the officer may arrest the individual named within it. There are often stipulations included in the arrest warrant, such as the window of time during the day the individual may be arrested. The warrant must also list the specific offense for which the individual will be charged. In some cases, an arrest warrant also includes information about the arrestee’s bail.

An Oath or Affirmation

The oath or affirmation requirement for obtaining an arrest warrant simply means that the officer must affirm that the facts provided are true or that she reasonably believes them to be true. Knowingly providing false information to obtain an arrest warrant renders the warrant invalid and can halt a criminal investigation, potentially to the point of making it impossible to prosecute the suspect.

Probable Cause

Without probable cause, an officer cannot obtain an arrest warrant or make a warrantless arrest. There is no hard definition of “probable cause.” Rather, probable cause can be anything an arresting officer knows or reasonably believes to be true about the alleged offender and offense when the arrest is made.

Only a judge can decide whether an officer has sufficient probable cause to obtain an arrest warrant. She makes this determination based on the facts the officer presents in his affidavit.

Under certain circumstances, an officer can make an arrest without a warrant if he has sufficient probable cause to make the arrest. An example of this would be an officer witnessing a drug deal and then arresting both the dealer and the buyer in the moments that follow.

Read More: Affidavit of Probable Cause

Actual Arrest or Detainment

The final component of a lawful arrest is the arrest or detainment itself. An arrest is the act of taking the suspect into custody and restricting his movement while doing so. Detainment is a more brief interaction that does not always lead to arrest. When a suspect is detained, she is not free to leave until the officer tells her she may leave. The officer may question or search the suspect while she is detained in an effort to develop probable cause to make an arrest. When there is sufficient evidence to support an arrest, the officer may arrest the suspect.

The U.S. Constitution includes specific requirements arresting officers must follow, like avoiding the use of excessive force during an arrest. Like an invalid warrant, excessive or inappropriate force used during an arrest can render the arrest void.


  • Arrests are governed by a few constitutional requirements. In certain cases, one of these requirements, the warrant, does not have to be present.

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