Monday, January 11, 2021

Unlawful Arrests

We've all heard that police need probable cause to arrest.  What does that mean exactly?  Can't police arrest you anyway?

Probable cause means reason to believe a crime is being (or was) committed and the person arrested committed it.  Absent a written warrant (which takes time, planning and effort - plus probable cause - to get from a judge or magistrate), it is required to make a "lawful" (a constitutionally valid) arrest.

Of course people with badges, uniforms, guns, tasers, clubs, handcuffs, helpful buddies and sheer "official" force -  have the power to arrest ("take into custody") pretty much anyone anytime.  Fighting with police and resisting arrest are not good ideas.  However, if there is no probable cause, evidence obtained (like confessions or admissions, searches, fingerprints, DNA, contraband etc.) generally is subject to being suppressed (excluded) from a related criminal case against the arrested person.  

For example, recently the Colorado Court of Appeals reversed a murder conviction because "the show-up identification and gunshot residue" were obtained as a result of an arrest lacking probable cause following an otherwise valid stop by police.  The case is People v. Oliver, 2020 COA 150.

To be sure, this is small comfort to the person arrested, jailed for who knows how long, hugely inconvenienced, and prosecuted, but typically it is enough to help limit arrests to valid ones.  (Whether there is proof beyond reasonable doubt needed to convict is a whole different story.)  

In more serious cases, including where the suspect is roughed up, or bad faith otherwise is apparent, a civil lawsuit against the arresting agency and personnel, seeking money damages, might be available as a remedy (usually a long shot in any event).

Like the song says, Just because you've got the power, doesn't mean you've got the right.  (Motorhead:))

- Sanderson Law, P.C.  We can help.

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