Hello Forum Members,
The officer must be knowledgeable and ever--minded of his/her responsibilities in regard to the arrest of others.
The Fourth Amendment to the United States Constitution sets down the basic premise of law governing arrest, search, and seizure of a person suspected of violating the criminal laws.
"The right of 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."
It should be noted that the word "seized" in the Constitution context, is synonymous with "arrest."
Of primary concern is that the officer know what constitutes an "arrest" under the law. One widely accepted definition of "arrest", and one accepted by Texas courts, follows:
" An arrest in criminal law signifies the apprehension or detention of the person of another in order that he may be forthcoming to answer for an alleged or supposed crime."
An examination of the definition demonstrates two(2) major requirements that must be met in order for an "arrest" to be lawfully made:
(1) there must be an apprehension or detention (seizure; arrest), either actual or constructive ; and
(2) the person arrested must be seized with the intention of presenting him to a magistrate to answer for an alleged or suppose crime.
If either requirement is absent, a lawful arrest has not taken place.
For clarification, an "actual" seizure is the taking into custody another person by the use of hands and/or by the use of weapons. This will include the mere touching of the person if other elements of the arrest are present. It also includes the pointing, but not firing, a weapon at a suspect.
A "constructive" seizure is accomplished when the person to be arrested submits to the control of the officer without the use, whatsoever, of any physical force or weapons.
Through numerous decisions in many cases, the appellate courts of the various states and the United States have made it clear that for an arrest to be completed, certain elements must be present. Those elements may be stated as follows:
(1) there must be purpose and intent on the part of the arresting officer to take a person into custody in accordance with the law, thereby depriving the person of his liberty and freedom of movement. (better have a good reason for an arrest, or can be held for false arrest).
(2) An actual or constructive seizure must be made of the person to be arrested by one having the present power to control him/her.
(3) There must be a communication by the arresting officer to the person being arrested of the officer's intent and purpose then and there to arrest him. (There are some exceptions to this element; person too drunk to comprehend, mentally ill, unconscious. etc.)
(4) There must be an understanding by the person being arrested that it is the intention of the arresting officer to then and there arrest and detain the person.
When all four (4) elements have been satisfied, the arrest is complete.
Authority to arrest under Texas law.
The Texas Code of Criminal Procedure clearly grants the authority for any person, including a private security officer, to arrest, without warrant, other persons under certain circumstances.
Article 14.01(a). offense within view
A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or view, if the offense is one classified as a felony or as an offense against the public peace.
Have a wonderful Happy New Year and be safe.