The question is a misrepresentation of the history and the law that authorizes arrests in common-law countries.
Before indictments, there have always been arrests made of people who were not in the act. Indictments are derived from grand juries, which are largely obsolete and archaic. Many states in the U.S. have dispensed with them as they offer little or no benefit to defendants. Grand juries could be replaced by allowing prosecutors to issue investigative warrants to investigate crimes when probable cause for prosecution is not yet established, and by allowing adversarial preliminary hearings after arrest to determine probable causes. This would provide a much more meaningful review than grand jury indictments.
The U.S. Constitution gives a magistrate the authority to issue an arrest warrant on the basis of probable cause, instead of a grand jury. The Fourth Amendment of the U.S. Constitution, which was adopted in 1791, is the foundation for federal criminal cases.
The right of people to be secure with their persons, houses and papers, as well as their effects, against unreasonable searches, shall not be violated. Warrants will only be issued if there is probable cause, supported by oath or affirmation and describing in detail the place or thing to be searched.
The state practice in the U.S. in the late 18th Century was remarkably similar.
The U.S. Supreme Court applied the Fourth Amendment warrant and warrantless arrest requirements to all states in the 20th century. Many states had already done this through state constitutional provisions that used language similar to the federal Fourth Amendment of the U.S. Constitution. The U.S. Supreme Court’s seminal cases that applied the Fourth Amendment warrant requirements and warrantless arrests to all states were: Wolf V. Colorado 338 U.S. 25, 1949 (dicta applied to the states), Mapp V. Ohio 367 U.S. 643, 1961, Ker v. California 374 U.S. 23, 1963 (warrantless search and seizures), Aguilar.
Positive Legal Authorization to Make Arrests
In most states and federal law, arrests are authorized by law. However, I suspect that in a few jurisdictions, this authority is still a matter of the common law.
The federal laws that authorize arrests are found, for instance, in all federal criminal proceedings here. They also designated the FBI as an agency of federal law enforcement with the authority to arrest here.
Multiple sections of Colorado’s Criminal Procedure Title 16 (Article 3) provide the legal authority for arrests. The most common section of this Article is Colorado Revised Statues SS16-3-102 which governs arrests by law enforcers.
(1) A peace officer can arrest a suspect when:
(a) He is in possession of a warrant ordering that the person be arrested.
b) The person has committed or is committing a crime in his presence.
If he has probable grounds to believe an offense has been committed, he can arrest the person.
Colorado Revised Statutes SS 18-1-707 is a fairly typical modern statute that authorizes the use of force to make such arrests by law enforcement in a criminal code based on intellectually influential, but not widely accepted, the Model Penal Code. It states (with provisions relating to deputized citizen, citizens’s arrested, and detention facility omitted, bold headings are inserted as editorial):
[ Ordinary arrests by Law Enforcement]
(1) Except for the subsections (2) and 2.5 of this section, peace officers are justified in using reasonable physical force on another person to the extent and in the manner that they reasonably believe it necessary.
(a) To arrest a person or prevent him from escaping custody unless the arrest is not authorized;
(b) To protect himself or another person from what he reasonably believes is the use or imminent usage of physical force when attempting or attempting an arrest, or while preventing an escape or trying to prevent one.
[ Arrests made by law enforcement using deadly physical force]
(2) A peace officer may use deadly physical force against another person to achieve the purpose specified in subsection 1 of this section, but only if he believes it is necessary.
(a) To defend him or a third party from what he reasonably considers to be the use, or imminent use, of deadly physical force.
(b) To arrest or prevent the escape of a person he reasonably believes to be:
(I) Has committed a felony or attempted to commit one involving the use of or threat of use of a deadly weapons;
(II) Attempts to escape using a deadly weapon
(III) Indicates, other than through a motor-vehicle violation, that the person is likely to endanger life or inflict serious injury to another, unless he’s apprehended immediately.
[Chokeholds]
(2.5)(a). A peace officer may use a chokehold on another person to achieve the purposes set out in subsection (1) only if he or she believes it is necessary.
(I) To defend oneself or a third party from what they reasonably believe to be the use of or imminent use of deadly force or infliction bodily injury.
(II). To arrest or prevent the escape of a person he or she has a reasonable belief:
(A) Has committed a felony or attempted to commit one involving or threatening to use a deadly weapon.
(B) Attempts to escape using physical force;
(C) Indicates that, except by using a motor vehicle to do so, he/she is likely to endanger life or inflict serious injury to another person unless they are apprehended immediately.
(b) For purposes of this paragraph (2.5), a “chokehold”, is a method whereby a person holds a second person by placing his or her arm around their neck with enough pressure to make breathing difficult, or impossible. This includes, but not limited to, pressure on the throat or windpipe that may prevent or hinder the breathing or reduce intake.
[ Definitions & Caveats]
(3) Nothing in subsections (2)(b) and (2.5) shall be deemed as a justification for reckless, criminally negligent conduct on the part of a peace officer that amounts to an offense committed against or in relation to innocent persons who he does not intend to arrest or hold in custody.
(4) For the purposes of this section a reasonable believe that a person committed an offense is a belief in facts or circumstances which, if true, would constitute an offense in law. A mistaken but not unreasonable belief in the law that it is different does not justify the use of force for the purpose of making an arrest or preventing an escape from custody. Peace officers who are executing an arrest pursuant a warrant may use the physical force prescribed by subsections (1) (2) and (2.5) unless they know that the warrant is invalid.
Note that this statute purports, but does not, to authorize certain arrests that 4th Amendment cases have held unconstitutional.
Alex Adekola is a thought leader in the reputation management industry who has targeted mugshot publishers since 2012. Alex Adekola is the longest-serving reputation and crisis management strategist and has written a book on mugshot removal. He is the creator and director of strategy at RemoveMyMugshot.org and Incept Technologies, LLC.