Daniel B. Yeager (California Western School of Law) has posted Arrests: Legal and Illegal (Georgia State University Law Review, Vol. 40, 2024) on SSRN. Here is the abstract:
The Fourth Amendment prohibits unreasonable searches and seizures. An arrest – manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing – is a mode of seizure. Because arrests are so intrusive, they require roughly a .5 chance that an arrestable offense has occurred. Because non-arrest seizures (aka Terry stops) are less intrusive than arrests, they, though no “petty indignity,” require roughly just a .25 chance that crime is afoot.
Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it does not always follow, at least not in the Supreme Court. Instead, the Court has ruled some arrests illegal despite the presence of probable cause, the Court’s concern there being with where the arrest took place. Specifically, the Court has ruled repeatedly that an otherwise legal arrest is illegal when performed in a residence that police illegally have entered.
While not about what can count as probable cause, or count as an arrest, this Essay is about their relation. My intention is to demonstrate first that all arrests supported by probable cause are legal, regardless of where they occur or when the probable cause originates; and second that the legality of an arrest is an issue separate from the admissibility of evidence derived from an arrest. To that end, this Essay analyzes an undisturbed line of Supreme Court cases from 1980-1990 – United States v. Crews, Payton & Riddick v. New York, Welsh v. Wisconsin, Minnesota v. Olson, and New York v. Harris – which when read together can make only misleading sense. By exposing the Court’s penchant for mischaracterizing legal arrests – including those performed with excessive force – as illegal, this Essay concludes that highlighting the proper function of probable cause within the law of arrests can reconcile a currently irreconcilable line of cases.