Power of Arrest                                                                       Report   700 words
Howard R Music
July 2020

The following is a small sample of old judicial decisions and opinions from various sources I've come across. The writings of old Americans whose policies, reverence to scripture, and courage helped build our country into one of the world's richest and powerful nations are not much in vogue these days. However, they offer insights on how our society was originally structured and the interaction of citizens with government. In this case the power of arrest.

Under the common law the powers of state agents were limited and the requirements for an arrest warrant was strictly enforced: United States v Tarlowski, 305 F. Supp. 112, 116, (1969)

This foundation principle of the common law, designed and intended to protect the people against the abuses of arbitrary arrests, is of ancient origin. It derives from assurances of Magna Carta and harmonizes with the spirit of our constitutional precepts that the people should be secure in their persons. Nevertheless, to this general rule that no man should be taken into custody of the law without the sanction of a warrant of other judicial authority, the processes of the early English common law, in deference to the requirement of public security, worded out a number of exceptions related in the main to cases involving felonies and suspected felonies and to breaches of the peace. State v. Mobley, 240 N.C. 47, 83 S.E. 2d 100, 102 (1954).

In Texas it was held that an arrest without a warrant, for selling in the officer's presence a railroad ticket in violation of a city ordinance prohibiting the selling of such tickets, was unlawful, as the offense charged was not a felony, nor an offense "against the public peace." M.K. & T. Ry. Co. v. Warner, 19 Tex. Civ. App. 463 (1898)

At the common law an officer had no authority to make an arrest for a misdemeanor though committed in his presence unless it involved a breach of peace. The right of personal liberty is a very high prerogative right, and to deprive one of that right, without due process of law, we must find specific authority for doing so. It can not be left to inference or some strained construction of statute or ordinance. State v. Lutz, 85 W. Va. 330: 101 S.E. 434, 43 (1919).

The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, or on view a breach of the peace, has never been extended to any and all misdemeanors.
Treatise on the Limitations of Police Power (1886)

The Radloff case involved a shoplifter who was stopped and arrested by store employees for taking two cartons of cigarettes. The State Supreme Court (Wisconsin) said that the employees had the right to stop the shoplifter and recover the goods he had stolen, and were not negligent per se in so doing. However, since the taking of the cigarettes constituted a misdemeanor, the store employees had no right to arrest the shoplifter when they had no warrant to arrest.
Radloff v National Food Store, Inc, 20 Wis.

Apprehend felons? Recover their own stolen property? It would appear that under our founding principals that a peace officer, much like a fire-fighter or city maintenance worker, is hired to do a job that any able-bodied citizen could do if so inclined. An American would not prostrate himself before a fireman, allow an electrical linemen to paw over his body, permit the garbage man to rifle through his goods and confiscate those he was suspicious of, or let a building inspector arrest him for a burned out bulb, yet, these are the day to day realities of dealing with modern policemen, who have been elevated to the status of untouchable; blue deities whose every command must be followed under penalty of death.
You could fill a book with excerpts such as these, unfortunately, most venues are courts of record or administrative that magistrates have deemed outside the scope of the constitutions, and they rule accordingly. However, they do serve an historical purpose and, perhaps as a blueprint for the future if we decide God and country are worth saving.


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