One of the fundamental powers of law enforcement officers is the power to make arrests. The better that officers understand and appreciate the origin and scope of their arrest powers, the better they will be able to appropriately exercise those powers. Because the arrest power directly impacts individual liberty, it is controlled by different types of laws to make sure that it is exercised properly. These laws include:
State Statutes: The main authority for a police officer’s power to make arrests is usually found in the state’s statutes. Often, there are multiple statutes that govern this authority, including statutes that date from the earliest state code books and newer statutes that give different powers to different types of officers in different circumstances. For example, statutes may give special arrest powers to state-certified police officers, or they may grant specific arrest powers under interstate compacts and during emergency response situations. Sometimes, specific powers of arrest in one statute overlap with broader powers of arrest given in another statute.
Municipal Ordinances: Many municipalities (e.g., counties and cities) have their own law enforcement agencies. Officers commissioned by these agencies are governed by the powers granted and limitations imposed by the municipal ordinances that cover their jurisdiction.
Constitutional Law: The Fourth Amendment of the United States Constitution prohibits unreasonable seizures, including arrests. States are bound by this law, and states generally have similar versions of the Fourth Amendment in their own constitutions. The Constitution is the supreme law of the land, so if an officer’s arrest violates the constitution, it is illegal, even if it seemed allowed under state statutes or municipal ordinances. On the other hand, an arrest that goes beyond what a statute or local ordinance allows might not violate the Fourth Amendment.
Common Law: Hundreds of years ago in England, judges began writing court decisions that defined and limited the government’s power over its citizens, including the power of the king’s officers to make arrests. This “common law” has been explicitly adopted by many states, and state and federal courts consider this law in deciding whether a police officer’s actions are prohibited by the Fourth Amendment. For example, under the common law:
Law enforcement officers are “conservators of the peace” with the duty to arrest those who make breaches of the peace in their presence.
Peace officers are usually required to knock and announce before forcibly entering a home.
Police officers may make a warrantless arrest in a public place for a misdemeanor or felony committed in the officer’s presence; but if the crime was not committed in the officer’s presence, a warrantless arrest is allowed only if the crime is a felony and the officer has reasonable grounds (probable cause) for making the arrest.
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