Criminal Justice: The Arts of Arrest

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The mistake can be fatal; it is legal for a cop to use all necessary force, even to kill a fleeing felon; but his power to use force is much more limited in the case of a fleeing misdemeanant. There comes a point when the arrester may be subject to murder charges—and when the arrestee is entitled to shoot back in self-defense.

Search for Balance. To bypass such complexities of arrest, some states have invented "pre-arrest detention." This device was designed to permit police to act on "reasonable suspicion" rather than the higher standard of "reasonable belief." Delaware, Rhode Island and New Hampshire have adopted the Uniform Arrest Act, which allows a policeman to stop, question, detain and frisk any person "whom he has reasonable ground to suspect" of having committed a crime. Unless there is probable cause for actual arrest, the person must be released after two hours.

This amounts to "investigative arrest" —already widespread in many states. But knowledgeable lawyers say the practice may flunk a Supreme Court test. As a compromise, New York's new "stop and frisk" law imitates the Uniform Arrest Act—except that suspects may not be detained if the frisk or questioning fails to yield probable cause for actual arrest.

Before the stop and frisk law was passed, a thief could sometimes beat arrest in New York even if a cop caught him carrying concealed loot—unless the cop reasonably believed beforehand that a theft had been committed. But even the new New York law is not necessarily constitutional. If detention really means arrest, then it must meet the standards of probable cause. And recent Supreme Court decisions indicate that state courts must exclude evidence seized during searches accompanying arrests made without probable cause. In short, a search cannot be justified by its fruits alone.

Relaxed Standards. The Supreme Court, though, is well aware of public cries that "the pendulum has swung too far in favor of criminals." And to redress the balance, the court may devise more relaxed standards. As the court said in 1960: "What the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." As an instance, the court in 1963 upheld the right of California police to make an arrest and search after they entered a narcotics peddler's room with a passkey but without a warrant.

Those who yearn to see New York's law upheld avidly quote the court's California decision: "The states are not precluded from developing workable rules to meet the practical demands of effective criminal investigation and law enforcement in the states, provided that the rules do not violate the Constitution's proscription of unreasonable searches and seizures."