What Constitutes an 'Arrest' within the Meaning of the Fourth Amendment

Posted: 7 May 2010

See all articles by Thomas K. Clancy

Thomas K. Clancy

University of Mississippi School of Law

Date Written: 2003


The word “arrest” cannot be found in the language of the Fourth Amendment. Yet, the fact of an arrest, and the definition of an arrest, is of fundamental importance in applying Fourth Amendment principles. A primary reason the term is important is because, when a valid arrest is made, the right to search incident to that arrest is automatic. It is also significant because, if an arrest is made without probable cause, the subsequent seizure of evidence may be considered a fruit of that unlawful arrest. The timing of an arrest is also important in civil actions for claims of false arrest. Remarkably, the Supreme Court has never defined the word "arrest" with any precision and decisions of the lower courts are in conflict as to its meaning.

Adding to the confusion are several disparate legal principles that have influenced the development of the concept of an arrest. These influences include numerous mutations of the common law definition of an arrest, the intermingling of state law arrest requirements with the Fourth Amendment’s requirements, and the Supreme Court’s utilization of numerous and irreconcilable concepts or visions of an arrest. Indeed, the Supreme Court’s development of the Fourth Amendment jurisprudence has greatly complicated the core question of what constitutes an arrest. Moreover, courts have manipulated the concept of an arrest to avoid application of the search-incident-to-arrest rule.

The proper resolution of the problem is based on the proposition that there are only two types of seizures of criminal suspects under the Fourth Amendment–stops and arrests. A stop is well-defined in Fourth Amendment jurisprudence; it is a brief detention of a person suspected of criminal activity. An arrest, properly understood, is any detention exceeding the scope of a permissible stop. Under what circumstances a search incident to that arrest is proper raises different concerns and is a separate question that should not influence the definition of an arrest.

Keywords: Fourth Amendment, Search and Seizure, Constitutional Law, Criminal Procedure

Suggested Citation

Clancy, Thomas K., What Constitutes an 'Arrest' within the Meaning of the Fourth Amendment (2003). Available at SSRN: https://ssrn.com/abstract=1602054

Thomas K. Clancy (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-832-5244 (Phone)

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