ARRESTARRESTARRESTARRESTARREST
(See also, ESCAPE, OBSTRUCTION OF
JUSTICE, RESISTING ARREST, SEARCH and
SEIZURE, SELF-DEFENSE, this Digest)
I. DEFINITIONS
“In criminal law an arrest is the taking of a person into
the custody of the law in order that he may be held to
answer for a criminal offense or be prevented from
committing one.” State v. Harbatuk, 95 N.J. Super. 54,
59-60 (App. Div. 1967), citing Schlosser, Criminal Law
of New Jersey § 11:1 (3d ed. 1970).
The test for determining whether a defendant was
arrested is that of the objective reasonable person. The
inquiry is, after “considering all the surrounding
circumstances,” would a reasonable person conclude that
he or she is not free to leave. State v. Craig, 237 N.J. Super.
407, 412 (App. Div. 1989), certif. denied, 121 N.J. 662
(1990). It is not necessary to announce an arrest in formal
language. Rather, restraint of the person and restriction
of liberty are the important factors. State v. Evans, 181
N.J. Super. 455, 458 (App. Div. 1981).
II. PROBABLE CAUSE FOR ARREST
In order to effectuate an arrest, the police must have
probable cause to believe that an offense has been or is
being committed. See, e.g., State v. Contursi, 44 N.J. 424,
428-29 (1965). There is no precise definition of the
concept of “probable cause.” Wildoner v. Borough of
Ramsey, 162 N.J. 375, 389 (2000); State v. Davis, 50 N.J.
16, 23 (1967), cert. denied, 389 U.S. 1054, 88 S.Ct. 805,
19 L.Ed.2d 852 (1968). Probable cause is more than
mere suspicion but less than the legal evidence necessary
to convict. State v. Mark, 46 N.J. 262, 271 (1966);
Sanducci v. City of Hoboken, 315 N.J. Super. 475 (App.
Div. 1998); State v. Judge, 275 N.J. Super. 194, 200
(App. Div. 1994). It is a reasonable basis for the belief
that a crime has been or is being committed. Wildoner,
162 N.J. at 389; State v. Waltz, 61 N.J. 83, 87 (1972);
State v. Burnett, 42 N.J. 377, 386 (1964); Sanducci, 315
N.J. Super. at 481.
A reasonable belief may be supported in part by
evidence inadmissible in a courtroom, including hearsay
and prior convictions. State v. Burnett, 42 N.J. at 387.
Whether there was probable cause to arrest is judged by
examining the practical considerations of everyday life as
tested by reasonably prudent persons. Brinegar v. United
States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879
(1949); Wildoner, 162 N.J. at 389; State v. Waltz, 61 N.J.
at 87; State v. Grant, 196 N.J. Super. 470, 476 (App. Div.
1984). The reviewing court can rely upon a police
officer’s “common and specialized experience” when
dealing with everyday evolving conflicts on the streets.
Wildoner, 162 N.J. at 390; Sanducci, 315 N.J. Super. at- There is no discernible difference in the standard for
determining probable cause for searches and arrest. State
v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033,
119 S.Ct. 576, 142 L.Ed.2d 480 (1998); State v. Sims, 75
N.J. 337 (1978).
III. WARRANTLESS ARRESTS BY POLICE OFFICERS
A. Adults
A police officer has the authority to arrest without a
warrant if he has a reasonable basis to believe that a crime,
punishable by imprisonment for more than one year in
state prison, has been or is being committed by the
person to be apprehended, whether or not the crime was
committed in the officer’s presence. State v. Henry, 133
N.J. 104, 110, cert. denied, 510 U.S. 484, 114 S.Ct. 486,
126 L.Ed.2d 436 (1993); State v. Doyle, 42 N.J. 334, 349
(1964); N.J.S.A. 40A:152.1. Police officers also are
empowered by statute to arrest a person for breach of the
peace or any disorderly offense committed in their
presence. N.J.S.A. 40A:14-152. See, State v. Vonderfecht,
284 N.J. Super. 555, 558 (App. Div. 1995) (police can
arrest a person without warrant for any petty or disorderly
conduct when committed in the officer’s presence); State
v. Hurtado, 219 N.J. Super. 12, 27-28 (App. Div. 1987)
(Skill man, J.A.D., dissenting), rev’d on dissent, 113 N.J.
1 (1988)(littering or potentially not responding to
summons is not a breach of peace and therefore invalid
warrantless arrest). Police officers are empowered by
statute to engage “in fresh pursuit” of any suspect whom
the officer reasonably believes committed a high
misdemeanor or for any criminal offense in the officer’s
presence. N.J.S.A. 2A:156-1.“Presence” has been defined as the requirement that
the officer knew of the event by the use of his senses. State
v. Smith, 37 N.J. 481, 495 (1962), cert. denied, 374 U.S.
835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963). See, State
v. Judge, 275 N.J. Super. at 202 (smell of burnt marijuana
in motor vehicle that violated motor vehicle laws
established probable cause). An admission to the police
that an offense was committed satisfies the “presence”
requirement. State v. Morse, 54 N.J. 32, 36 (1969). See
also State v. Dickens, 130 N.J. Super. 73, 76-77 (App. Div.
1974); State v. Macuk, 57 N.J. 1, 8 (1970). Arresting