Can A Police Officer Arrest Me Without Evidence

 Can A Police Officer Arrest Me Without Evidence?

A determination needs to be made by a police officer that there is probable cause in order to make an arrest.  Probable (or reasonable) cause for an arrest exists when the facts are sufficient to cause a fair minded person of average intelligence to believe that the Defendant committed the alleged crime.  If the police officer makes a probable cause determination, one of several things can happen:

1)  The police officer can make an arrest if a misdemeanor or felony is committed in a police officer’s presence, or when a police officer has probable (or reasonable) cause to believe a misdemeanor or felony was committed and probable (or reasonable) cause to believe that the Defendant committed the offense.

2)  For minor offenses such as local ordinances, the police officer can issue an appearance ticket which provides instructions as to how and where to address the criminal allegation.  If an appearance ticket is issued, the Defendant is not arrested unless he or she fails to go to Court by or on the date set.

3)  In some instances there is a delay in determining probable cause because the investigation is still ongoing.  In some instances there is a delay based upon the need to interview other witnesses.  Sometimes there is a necessity to gather and test forensic evidence (such as DNA analysis, drug analysis, fingerprint analysis, ballistic testing, blood testing, handwriting analysis, etc.) before a probable cause decision can be made.  During some investigations, there is a need to obtain records (such as medical records, telephone records, business records) to determine if there is probable cause to believe a crime occurred.  There are instances in which an expert needs to be consulted to make the proper determination (for example, in child abuse cases a specially trained doctor may need to see records and evidence to determine if an injury is consistent with intentional abuse).  Usually a police report is written in connection with the investigation.  Once the investigation concludes a police officer or detective speaks with a prosecutor, attorney general, or city attorney and submits the information that they have concerning the allegation.  If the prosecutor, attorney general, or city attorney determines that there is probable cause to believe a particular individual committed a particular offense, paperwork is prepared to be submitted to the District Court with jurisdiction over the case.  The prosecutor, attorney general, or city attorney also has the option to deny the warrant if the evidence is not sufficient or the complaining witness is not credible.   The police officer or detective is sometimes directed by the prosecutor, attorney general, or city attorney to make a further investigation in order to make a proper probable cause determination.

When is an arrest warrant issued?  The purpose for an arrest warrant is to bring a particular Defendant before a Court concerning an accusation. The accusation is contained in a document called a complaint. The complaint is a formal court document which recites the charge, possible penalty, and sometimes contains factual allegations. An arrest warrant is required whenever a misdemeanor or felony occurs outside the presence of a police officer (there are a few exceptions, such as Operating While Intoxicated offenses and domestic violence offenses).

Typically, the Court receives a complaint and warrant request from a police officer or detective.  The Court usually has the police officer or detective offer under oath a factual basis as to what occurred.  The police officer or detective must have either personal knowledge or disclose the source of their belief.  When the belief is based upon information from other people, the informant’s credibility must be shown as well.  Some Courts also require an affidavit to be submitted in support of the complaint that is filed.  

Instances in which an Arrest Warrant is not necessary:

1)  A police officer may issue a citation or an appearance ticket to a person who is arrested without a warrant for misdemeanor or local ordinance offense that does not exceed 93 days of possible incarceration, a fine, or both.

2) When a felony is committed in a police officer’s presence or when a police officer has probable (or reasonable) cause to believe a misdemeanor or felony was committed and probable (or reasonable) cause to believe that the Defendant committed the offense.    The probable (or reasonable) cause determination can be based on hearsay evidence.

3) An arrest warrant is not needed if the person accused has already been arrested without a warrant for a felony or a misdemeanor.  The complaint, in this instance, shall constitute both the complaint and warrant when the District Court Judge or Magistrate endorses upon the complaint a finding of probable cause and a direction to take the accused before a District Court Judge or Magistrate.

4) A private citizen may file a complaint for a felony or a misdemeanor charge when a prosecutor has not authorized the complaint and when security for costs is filed with the Court.  The amount of security should accurately reflect the likely expenses of the prosecution.