What is an Illegal Arrest?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 30 January 2020
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An illegal arrest is an arrest made in a situation where it would not be authorized by law. This usually becomes an issue when people are detained illegally after being arrested. There are a number of settings where illegal arrests can occur and the legal penalties vary. Most commonly, private security companies are charged with illegal arrest, but law enforcement officers can also potentially violate the law when conducting an arrest, detaining a suspect, or searching a suspect under arrest.

Laws about making arrests vary worldwide. Some nations place a very high priority on personal freedom and bodily autonomy for their citizens, and they spell out clear rules for situations when arrests are warranted and how those arrests may be conducted. Other nations believe national security and public safety to be more important than individual liberties in certain situations, and may have more lenience in the laws surrounding arrests.


As a general rule, an arrest is illegal if the person making the arrest cannot show probable cause. Anyone can potentially make an arrest, but private security firms and overzealous civilians are the most likely to make an illegal arrest due to an imperfect understanding of the law, as they do not have the training available to police officers. In a simple example, a police officer cannot arrest a man walking down the street because he happens to be of a certain race or ethnic background. However, a police officer could arrest the man if he resembles a suspect in a crime that has just been reported in the area.

An arrest can also be illegal if someone is detained beyond the limit permitted by law. For many traffic infractions, for example, people can be arrested for a citation, but they must be released immediately afterward unless there is a legitimate concern that they will not appear in court to respond to the citation. If people are held beyond the period needed for a citation for minor infractions, it can be considered an illegal arrest.

People can choose to resist illegal arrest, although they cannot use excessive force in doing so. Some gray areas can be entered when people resist what they believe to be illegal arrests. Cases where police officers have failed to identify before making an arrest or where the situation was not clearly communicated to the suspect have been deemed illegal arrests in some cases, justifying evasion of arrest on the part of the subject.


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Discuss this Article

Post 5

What would happen if the warrant was issued based on verbal evidence? Detectives stated they had pictures/videos of the crime. This so called "evidence" has yet to be produced and it has been a little over a year.

Post 4

@Crispety- I have read books where people did things like that. And no, I don't always believe that books show these things accurately, but I remember they were clear in one story I read about the concept of a person being arrested so that they could not evade taking the witness stand.

I think that it is a good thing that law enforcement in the US can do this, because among other things it reminds us that being arrested and actually having charges pressed against you are different. It's like if someone is called in for questioning after getting into a car accident. They aren't necessarily being accused of anything, but they need to fill a report and make sure that everything is recorded.

Post 3

@Suntan12 - I wanted to add that I was reading about a fourth amendment arrest that was really interesting. Apparently under the fourth amendment a judge can grant an arrest warrant for a person that is a material witness to a criminal case that for some reason will be impossible to them to give a deposition or have them reply to a subpoena.

This happened in a case involving former Attorney General John Ashcroft vs. Abdullah Al-Kidd. Al-Kidd argued that he was arrested and detained unlawfully, but the Supreme Court ruled against him and reminded him that he was a material witness to a criminal case and because of the improbability that he would respond to a subpoena

or a deposition, Ashcroft was within his rights under the fourth amendment to arrest him even though he was only a witness.

I really didn’t even know that they could do that but it makes sense especially if you have information that could help an investigation.

Post 2

@Sunshine31 - I also think that police officers use probable cause when they arrest someone. For example, suppose a police officer pulls over a motorist that they believe is under the influence of some drug, they fail the sobriety test, and the officer feels that the subject has drugs in their trunk.

The police officer has the legal right to search the trunk of the vehicle in order to see if his suspicions are correct. If he finds drugs then he can arrest the motorist and charge him with possession of drugs. These types of arrest searches are perfectly legal.

Post 1

I don’t think that there are too many cases in the United States for illegal arrest because in the United States in order for a police officer to arrest someone in their home there has to be a warrant for arrest that was signed off my a judge.

The police officer had to have gone to a judge and given the judge the evidence that the police officer had and if the judge felt that it was sufficient then he would issue an arrest warrant. This is not a false arrest because the judge approved the arrest before it took place.

Sometimes police officers will seek a search warrant because they have evidence that strongly links the suspect

to a crime, but will need to search the suspect’s home in order to get more evidence against them.

This right is also granted by a judge and the person that is being searched has to comply is not they will be subject to a search warrant for arrest.

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