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Thread: Arrest powers

  1. #1
    Yolanda Quizhpi Guest

    Wink Arrest powers

    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.

  2. #2
    Kathleen O'Connell Guest
    As a citizen you have the right to make a citizens arrest. There are times this needs to be done to protect someone else from harm.
    Last edited by B Ann Craig; 04-13-2004 at 02:41 AM.

  3. #3
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    Arrest

    In the state of Washington you must have the power to arrest. The General Authority is in Washington RCW 10.93.070. This might help the PI in Washington.
    Bill Van Meter
    Badge # 10038

  4. #4
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    Yes, what about citizens arrest. It has been said the PIs don't have arrest authority, but is there actually such a thing?
    Mark Cox
    PI Trainee
    Badge # 10061
    Central Illinois

  5. #5
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    PI's have the powers of citizens arrest. Which means, if you yourself witness a crime in your presence, you can arrest and detain. Bounty Hunters get their authority to arrest from the constitution.

    As for carrying handcuffs, it is a liability, be sure you are very well trained.

  6. #6
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    A citizens arrest can only be executed if you your self witnessed a felony crime. An arrest is seperate from detaining someone. Depending on the state law and requirments, you can carry handcuffs, but using them to detain a someone usually requires certification to do so. For example an LP person can detain a subject, but not arrest them. The reason is that depending on the value of the stolen property it may not be considered a felony but a misdemeanor. And then again being an LP Officer doesn't mean your employer wants the use of handcuffs to be applied. I Believe persons on the run from Bounty Hunters have already given up some of their rights, but thats not to say you shouldn't have special training or cert. to make that arrest.

    I myself am in the Security Buisness and carry Cuffs, OC, firearm and Baton. The company I work for is made up of 40% Part time Police Officers, even the owner of the company is a police officer. A lot of the Officers are working in Security or LP for supplimental income, but they are able to make arrests as long as they are a sworn in Law Enforcement Officers and they have on duty Officer respond to pick up the subject.

  7. #7
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    Nelson,

    Thanks for the information. Great post! I wasn't aware of the difference between detaining and arresting. I thought it was pretty much the same. Thanks again!

  8. #8
    Hi Nelson; thanks for helpful advise; I would like to know how do you go about detaining someone when making a citizens arrest, I know the laws differ in all states but i do know from what i've read that holding someone against their will is a form of kidnapping...Please clearify as i'm new here and would like to reinforce my learning abilities..... thanks in advance...
    Jplh

  9. #9
    It is extremely important to research and review the laws for the state in which you will be working in.

    I'm seeing confusion by the term "detainment" vs. "arrest." The two are the SAME. The ability to detain is held for police officers. This gives them the authority to hold a suspect for a "reasonable amount of time" to determine if any crime has been committed ot to determine if the person being detained is the person who commited the crime. It still restricts the persons freedom of movement. Because of the reasonable belief that a crime has been commited and that the person being detained may have commited the crime, gives police officers the authority to hold(detain) them.

    As citizens, we (as required by our states law) have to have seen the person commit the crime. We are not able to act upon the "reasonable belief" clause. But having seen the crime can act upon it. The state will specify what circumstances or events must occur before we can act, and will even specify what "force" it's citizens can use in effecting the arrest.

    Good idea to use your investigative skills and research your states laws. Alot of states list their "codes" on the internet now and you can research the law from home or work (if the boss says it's okay). Do searches for "arrest", "detainment", "false arrest", citizens arrest", "misdemeanor", and "felony". This will provide you with definitions and codes which will answer alot of your questions.

    Enjoy the research..it can be very informative!

  10. #10
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    This very interesting. I'm going to research arrest in Florida and will come back to share it. I do believe that Florida does not allow citizen arrest but I will verify that.

    Joe Krause

  11. #11
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    Quote Originally Posted by Yolanda Hernandez
    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.
    Yolanda,

    I moved your post here to keep the website nice and neat.

    Jamie
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  12. #12
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    Quote Originally Posted by Troy Lusk
    It is extremely important to research and review the laws for the state in which you will be working in.

    How right you are, Troy.

    I was talking with a Deputy Sheriff, who used to be one of our Tribal Officers, and he said if I was going to get into this business it would be to my best advantage to get a copy of the state statutes. There are currently 85 statutes in the state of Oklahoma, I didn't get a hard copy, but I did find a website that shows them all.

    http://www.lsb.state.ok.us/
    Will Brassfield

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  13. #13
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    Quote Originally Posted by William Brassfield
    I was talking with a Deputy Sheriff, who used to be one of our Tribal Officers,
    What do you mean?

    Julie Mercer

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    Julie

    Tribal Officer means that they are Indian Reservation Police.


    Jamie
    Jamie Van Hook
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  15. #15
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    Jamie,

    Thanks for the information! That is what I thought, but I just wanted to make sure.

    Julie Mercer

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    Once again, another very good question answered. Thanks you to Yolanda and everyone else who answered a question that I didn't even know enough to ask. I am curious, however, about the use of hand cuffs in citizen's arrests. They were briefly mentioned in these posts but do most investigators recommend them or do they NOT recommend them when making citizen's arrests? Being accused of making a false arrest is a very good point but couldn't I also be accused of making a false arrest without the use of hand cuffs? I guess (to me, anyway) there are still a few grey areas concerning this topic. Thanks to everyone.

  17. #17
    Mark,

    I attended a seminar on private investigations and the law last week, and though I am new to the forum, might have some answers for you about false arrest. I should also add that my knowledge could be limited according to some differences in state laws.

    One, regardless of the method of arrest you use (including handcuffs, pepper spray, etc.), you should be VERY sure that the crime has been "in fact committed," a legal term which basically means they did it, but doesn't necessarily mean they are prosecuted/convicted of it. Secondly, no matter what the result of the arrest, you are still liable in CIVIL court if you make a false arrest. I would be very careful to avoid making arrests unless you absolutely have to because of this. Civil cases can cost millions if you happen to arrest the wrong person. Finally, make sure that your state and city actually allow you to carry handcuffs; some do not. I wouldn't want to be caught with contraband weapons while making an arrest.

    All that being said, most prosecutors will not prosecute you in a criminal matter if it can be shown that you had justification.

    Good Luck!

    Laura K. Brown

  18. #18
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    Hello All! I would be very careful about carrying handcuffs and performing citizens arrest. First and foremost, You could get hurt! You do not know the circumstances of the crime. What if the subject is on drugs? Or forgot to take their medication? Or has a weapon?! Second, unless you are someone that has power to carry cuffs and has the TRAINING, I would not recommend this. Again, you could get hurt or in the course of you trying to cuff the subject, someone else gets hurt. You could also be breaking laws and not even knowing it. I do disagree that arrest and detainment are the same. Maybe in some states, but I can detain you for the purpose of the investigation, then let you go and you were never under arrest. This does get tricky and every state is different. But I believe technically there is a difference. Stay safe guys!!!

  19. #19
    Does anyone out there know where I can obtain a copy or view on a website the State Statutes for Texas?

  20. #20
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    Quote Originally Posted by Beverly Shipman
    Does anyone out there know where I can obtain a copy or view on a website the State Statutes for Texas?
    Hi Beverly,
    Go to search and type in Texas Statues. There is a thread with that information.
    Have a good day.
    Julie Mercer

  21. #21
    Thanks Julie, will do.

  22. #22
    Quote Originally Posted by Jolene Devries
    Hello All! I would be very careful about carrying handcuffs and performing citizens arrest. First and foremost, You could get hurt! You do not know the circumstances of the crime. What if the subject is on drugs? Or forgot to take their medication? Or has a weapon?! Second, unless you are someone that has power to carry cuffs and has the TRAINING, I would not recommend this. Again, you could get hurt or in the course of you trying to cuff the subject, someone else gets hurt. You could also be breaking laws and not even knowing it. I do disagree that arrest and detainment are the same. Maybe in some states, but I can detain you for the purpose of the investigation, then let you go and you were never under arrest. This does get tricky and every state is different. But I believe technically there is a difference. Stay safe guys!!!
    Thanks Jolene, for pointing out the need for training when using handcuffs. It is difficult, to say the least, and damn near impossible for a lay person to cuff someone who is struggling. Watch "Cops" sometime, and see how long it takes them to cuff someone, while three officers are holding the suspect down I've seen many a trainee dislocate and even break a finger while attempting to handcuff a suspect

  23. #23
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    Anytime you arrest someone you open yourself up for a possible lawsuit, so anytime you think there is a need to do so make sure that your on solid ground legally. And just because your right or think your right does'nt mean the offender will cooperate, so you also have to be ready for the alltercation and ramifications. Think before you react, because there may be no turning back once you start, good luck.

  24. #24
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    Just one thing to remember regarding citizen's arrest. I have worked undercover security for a long time and have made around 350 citizens arrests in Washington State. If you have to make a citizen's arrest do so after contacting local police. It can save your butt when there is a 911 tape of you telling the police whats going on before going physical and in most cases the citizens arrest is going to be due to a violent act so chances are the suspect is going to resist anyways. This gets a much faster police response and makes it safer for you if you have to go physical. If possible though don't make the arrest yourself. Follow from a distance with a cell phone and give info as to location of the suspect to the police. Let them take the liability.

    Dave Swift

  25. #25
    This is a good question for trainees and folks without alot of experience in this area. Handcuffs area tricky thing, but can be a valuable tool if you ahve the proper training and are authorized, and have cause to carry and use them. Some states have strict laws and such regarding private citizens carrying and using them, some don't.

    Jolene,

    I agree that there is a difference in a detention and an arrest. However, when talking about actions of a private citizen, there isn't really enough difference to save your butt in a civil action. By definition, once a person is confronted and made to believe he or she cannot leave on his or her own accord, an arrest has been made as that persons personal freedom to move about freely has been taken away. You don't have to actually tell them they can't leave, but if they, for whatever reason believe they cannot, that is all it takes. As private citzens, we can ask that a person "stick around" while we investigate but cannot make them. If you make them stay...verbally or physically or worse, make them come with you to a separate location away form the actual location of the incident or initial contact, then find out through your "investigation" they are not involved....bad scene! That opens you up to allot of civil as well as crminal issues. Police officers have the luxory to "detain" for investigation, unfortuantely, as private citizens, we do not.

  26. #26
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    What about after the fact? After you have witnessed a crime, made your arrest, and the police have been called, what then? Say you've witnessed a drug deal gone bad and someone was attacked and injured. You arrest the attacking party and have called the police and an ambulance for the injured. When they show up, do you think there would be any questions of where the drugs came from? Is there a possibility of them thinking you may have "planted" them? Or that you acted in an unlawful manner? I don't think there would be a problem with making the citizens arrest because you definately witnessed the attack, but if you search the individual for weapons and discover drugs, things could get a little tricky. You don't want to let the perp keep the drugs on him, because he could swallow them. But if you confiscate the drugs, the police might question your story. Although we are private investigators, we are not legal authorities and most police officers will probably not be familiar enough with you to know that you have no direct involvement.

    Very circumstancial, but a possiple scenario nonetheless.

    Any comments?

  27. #27
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    PERSONAL OPINION Only:

    Yes, making an arrest as a private citizen is based on what the citizen witnesses within public view. It does not provide for the witness to take on search and seizure - which in itself goes beyond just being a passerby or witness.

  28. #28
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    Re: Arrest powers

    Quote Originally Posted by Joseph Krause
    This very interesting. I'm going to research arrest in Florida and will come back to share it. I do believe that Florida does not allow citizen arrest but I will verify that.

    Joe Krause
    Florida allows common law citizens arrest. Which is for a Breach of peace which creates a threat the life or safety of others or the person to be arrest, or a felony in your presence or a felony out of your presence which you know in fact was committed and you have probable cause the person you are arresting has committed it.

    sources are Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). and http://www.ca11.uscourts.gov/opinions/ops/200416113.pdf

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