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Subject Area: Law
Topic: The American Revolution and Constitution

§ 34.: Arrests without a warrant.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 34.

Arrests without a warrant.—

Although it is the general rule of law that there can be no arrest without a warrant of the nature just described, yet there are cases in which the requirement of a warrant would so obstruct the effectual enforcement of the laws, that the ends of justice would be defeated. For public reasons, therefore, in a few cases, the personal security of the citizen is subjected to the further liability of being arrested by a police officer or private individual without a warrant. But the right thus to arrest without a warrant must be confined to the cases of strict public necessity. The cases are few in number and may be stated as follows:—

1. When a felony is being committed, an arrest may be made without warrant to prevent any further violation of the law.1

2. When the felony has been committed, and the officer or private individual is justified, by the facts within his knowledge, in believing that the person arrested has committed the crime.2

3. All breaches of the peace, in assaults and batteries, affrays, riots, etc., for the purpose of restoring order immediately.3

4. The arrest of all disorderly and other persons who may be violating the ordinary police regulations for the preservation of public order and health, such as vagrants, gamblers, beggars, who are found violating the laws in the public thoroughfares.4

The constitutional principle, that arrest without warrant is permissible only in cases of strict public necessity, is very clearly set forth in a case from the Michigan courts, which pronounces a statute of that State unconstitutional, in that it authorizes the recaption without warrant and imprisonment of a convict, who is charged with the violation of the conditions of his pardon. No public necessity required this summary arrest without warrant; and, consequently, his deprivation of liberty had not been procured by “due process of law.”1

SECTION35.The trial of the accused.
36.Trial must be speedy.
37.Trial must be public.
38.Accused entitled to counsel.
39.Indictment by grand jury or by information.
40.The plea of defendant.
41.Trial by jury—Legal jeopardy.

[1]Ruloff v. People, 45 N. Y. 213; Keenan v. State, 8 Wis. 132. But see Somerville v. Richards, 37 Mich. 299.

[2]But the belief must be a reasonable one. If the facts within his knowledge do not warrant his belief in the guilt of the innocent person whom he has arrested, he will be liable in an action for false imprisonment. State v. Holmes, 48 N. H. 377; Holly v. Mix, 3 Wend. 350; Reuck v. McGregor, 32 N. J. 70; Commonwealth v. Deacon, 8 Serg. & R. 47; State v. Roane, 2 Dev. 58; Long v. State, 12 Ga. 233; Eames v. State, 6 Humph. 53. Less particularity, in respect to the reasonableness of the suspicions against an individual, is required of an officer who makes an arrest without warrant, than of a private person. The suspicions must be altogether groundless, in order to make the officer liable for the wrongful arrest. See Marsh v. Loader, 14 C. B. (n. s.) 535; Lawrence v. Hedger, 3 Taunt. 14; Rohan v. Sawin, 5 Cush. 281; Holley v. Mix, 3 Wend. 350; Burns v. Erben, 40 N. Y. 463; Dreunan v. People, 10 Mich. 169.

[3]Philips v. Trull, 11 Johns. 477; Respublica v. Montgomery, 1 Yeates, 419; City Council v. Payne, 2 Nott & McCord, 475; Vandeveer v. Mattocks, 3 Ind. 479.

[4]See Mitchell v. Lemon, 34 Md. 176, in which it was held that one may be arrested without a warrant, who was found violating the rules laid down by the city board of health for the preservation of the public health. In Burroughs v. Eastman, 101 Mich. 419, it was held that an ordinance did not contravene the constitutional requirement of “due process of law,” which authorized police officers to arrest without warrant persons who were violating any of the ordinances in their presence, even in those cases in which the offense committed did not amount to a breach of the peace. But see contra, State v. Hunter, 106 N. C. 796.

[1]People v. Moore, 62 Mich. 496.