Unreasonable Arrests Under the Fourth Amendment
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall1 and is now established law.2 At common law, warrantless arrests of persons who had committed a breach of the peace or a felony were permitted,3 and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained.4 To determine whether an officer has probable cause to make a warrantless arrest, courts consider the totality of the circumstances, examining the events leading up to the arrest and deciding whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.5 Probable cause is not a high bar,6 requiring only a probability or substantial chance of criminal activity, not an actual showing of such activity.7 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.8
The Fourth Amendment applies to seizures and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants, or probable cause in instances in which warrants are not required.9 Some objective justification must be shown to validate all seizures of the person,10 including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary.11
The Fourth Amendment does not require an officer to consider whether to issue a citation rather than arresting (and placing in custody) a person who has committed a minor offense—even a minor traffic offense. In Atwater v. City of Lago Vista,12 the Court, even while acknowledging that the case before it involved gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment, refused to require that case-by-case determinations of government need to place traffic offenders in custody be subjected to a reasonableness inquiry, lest every discretionary judgment in the field be converted into an occasion for constitutional review.13 Citing some state statutes that limit warrantless arrests for minor offenses, the Court contended that the matter is better left to statutory rule than to application of broad constitutional principle.14 Thus, Atwater and County of Riverside v. McLaughlin15 together mean that—as far as the Constitution is concerned—police officers have almost unbridled discretion to decide whether to issue a summons for a minor traffic offense or whether instead to place the offending motorist in jail, where she may be kept for up to 48 hours with little recourse. Even when an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause.16
Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure—unlike evidence obtained as a result of an unlawful search—remains subject to custody and presentation to court.17 But the application of self-incrimination and other exclusionary rules to the states and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded.18 Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed tainted by the former.19 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.20
More on the Fourth Amendment
1. Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).
2. Giordenello v. United States, 357 U.S. 480, 485–86 (1958); United States v. Watson, 423 U.S. 411, 416–18 (1976); Payton v. New York, 445 U.S. 573, 583–86 (1980); Steagald v. United States, 451 U.S. 204, 211–13 (1981).
3. 1 J. Stephen, A History of the Criminal Law of England 193 (1883). At common law warrantless arrest was also permissible for some misdemeanors not involving a breach of the peace. See the lengthy historical treatment in Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001).
4. United States v. Watson, 423 U.S. 411 (1976). See also United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless arrest of suspect in her home when she was initially approached in her doorway and then retreated into house). However, a suspect arrested on probable cause but without a warrant is entitled to a prompt, nonadversary hearing before a magistrate under procedures designed to provide a fair and reliable determination of probable cause in order to keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975). A prompt hearing now means a hearing that is administratively convenient. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (authorizing as a general matter detention for up to 48 hours without a probable-cause hearing, after which time the burden shifts to the government to demonstrate extraordinary circumstances justifying further detention).
5. Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal citations and quotations omitted). The totality of circumstances approach requires courts to consider the whole picture and to not look at each fact as presented to the reasonable officer in isolation. See District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). Moreover, the existence of an innocent explanation for a particular circumstance is insufficient to deny probable cause for an arrest when, in considering all of the circumstances, including any plausible innocent explanations, a reasonable officer can conclude that there is a substantial chance of criminal activity. Id. at 588.
6. Kaley v. United States, 571 U.S. 320, 338 (2014).
7. Illinois v. Gates, 462 U.S. 213, 232 (1983).
8. Payton v. New York, 445 U.S. 573 (1980) (voiding state law authorizing police to enter private residence without a warrant to make an arrest); Steagald v. United States, 451 U.S. 204 (1981) (officers with arrest warrant for A entered B’s home without search warrant and discovered incriminating evidence; violated Fourth Amendment in absence of warrant to search the home); Hayes v. Florida, 470 U.S. 811 (1985) (officers went to suspect’s home and took him to police station for fingerprinting).
9. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave). See also Reid v. Georgia, 448 U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Terry v. Ohio, 392 U.S. 1, 16–19 (1968); Kaupp v. Texas, 538 U.S. 626 (2003). Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985) (police officer’s fatal shooting of a fleeing suspect); Brower v. County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end car chase with fatal crash); Scott v. Harris, 550 U.S. 372 (2007) (police officer's ramming fleeing motorist's car from behind in attempt to stop him); Plumhoff v. Rickard, 572 U.S. 765 (2014) (police use of 15 gunshots to end a police chase).
The Court has also made clear that the Fourth Amendment applies to pre-trial detention. See Manuel v. Joliet, 137 S. Ct. 911, 914 (2017) (holding that a petitioner who was held in jail for seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime could challenge his pretrial detention on the ground that it violated the Fourth Amendment).
10. The justification must be made to a neutral magistrate, not to the arrestee. There is no constitutional requirement that an officer inform an arrestee of the reason for his arrest. Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (the offense for which there is probable cause to arrest need not be closely related to the offense stated by the officer at the time of arrest).
11. Delaware v. Prouse, 440 U.S. 648, 650 (1979) (unreasonable seizure . . . to stop an automobile . . . for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that a law was violated); Brown v. Texas, 443 U.S. 47, 51 (1979) (detaining a person for the purpose of requiring him to identify himself constitutes a seizure requiring a reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed); Reid v. Georgia, 448 U.S. 438, 441 (1980) (requesting ticket stubs and identification from persons disembarking from plane not reasonable where stated justifications would apply to a very large category of innocent travelers, e.g., travelers arrived from a principal place of origin of cocaine); Michigan v. Summers, 452 U.S. 692, 705 (1981) (it is constitutionally reasonable to require that [a] citizen . . . remain while officers of the law execute a valid warrant to search his home); Illinois v. McArthur, 531 U.S. 326 (2001) (approving securing of premises, preventing homeowner from reentering, while a search warrant is obtained); Los Angeles County v. Rettele, 550 U.S. 609 (2007) (where deputies executing a search warrant did not know that the house being searched had recently been sold, it was reasonable to hold new homeowners, who had been sleeping in the nude, at gunpoint for one to two minutes without allowing them to dress or cover themselves, even though the deputies knew that the homeowners were of a different race from the suspects named in the warrant).
12. 532 U.S. 318 (2001).
13. 532 U.S. at 346–47.
14. 532 U.S. at 352.
15. 500 U.S. 44 (1991).
16. Virginia v. Moore, 128 S. Ct. 1598 (2008). See also Heien v. North Carolina, 574 U.S. 54, 60–61 (2014) (holding that a mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure of a vehicle). The law enforcement officer in Heien had stopped the vehicle because it had only one working brake light, which the officer understood to be a violation of the North Carolina vehicle code. Id. at 57–58. However, a North Carolina court subsequently held, in a case of first impression, that the vehicle code only requires one working brake light. Id. at 58–59. In holding that reasonable suspicion can rest on a mistaken understanding of a legal prohibition, a majority of the Supreme Court noted prior cases finding that mistakes of fact do not preclude reasonable suspicion and concluded that reasonable men make mistakes of law, too. Id. at 61 (citing Illinois v. Rodriguez, 497 U.S. 177, 183–86 (1990), and Hill v. California, 401 U.S. 797, 802–05 (1971), as cases involving mistakes of fact).
17. Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 (1952).
18. Wong Sun v. United States, 371 U.S. 471 (1963). Such evidence is the fruit of the poisonous tree, Nardone v. United States, 308 U.S. 338, 341 (1939), that is, evidence derived from the original illegality. Previously, if confessions were voluntary for purposes of the self-incrimination clause, they were admissible notwithstanding any prior official illegality. Culombe v. Connecticut, 367 U.S. 568 (1961).
19. Although there is a presumption that the illegal arrest is the cause of the subsequent confession, the presumption is rebuttable by a showing that the confession is the result of an intervening . . . act of free will. Wong Sun v. United States, 371 U.S. 471, 486 (1963). The factors used to determine whether the taint has been dissipated are the time between the illegal arrest and the confession, whether there were intervening circumstances (such as consultation with others, Miranda warnings, etc.), and the degree of flagrancy and purposefulness of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982); Kaupp v. Texas, 538 U.S. 626 (2003). In Johnson v. Louisiana, 406 U.S. 356 (1972), the fact that the suspect had been taken before a magistrate who advised him of his rights and set bail, after which he confessed, established a sufficient intervening circumstance.
20. Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687 (1982). In United States v. Crews, 445 U.S. 463 (1980), the Court, unanimously but for a variety of reasons, held proper the identification in court of a defendant, who had been wrongly arrested without probable cause, by the crime victim. The court identification was not tainted by either the arrest or the subsequent in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815 (1985), suggesting in dictum that a narrowly circumscribed procedure for fingerprinting detentions on less than probable cause may be permissible.