No, the Officer Doesn’t Have to Announce the Offense When He Makes An Arrest (UPDATE: Although Some State Laws May Require Such Notice)

This video of columnist Mona Eltahawy being arrested after she vandalized a subway advertisement and spray-painted a woman in her way brings up an often-misunderstood question of criminal procedure: If an officer places a person under arrest, do they have to tell the person what crime they are under arrest for having violated? Eltahawy certainly thinks so. Watch the video at the 1:56 mark:

Here’s the transcript at that point, as best I could make out:

Officer: You’re under arrest.
Eltahawy: For what? For what?
Officer: You’re under arrest. Turn around.
Eltahawy: For what? Tell me what I’m under arrest for. For what? I need to know what you’re arresting me for. It’s my right to know what you’re arresting me for. It is my right as a U.S. Citizen to know what you are arresting me for. What are you arresting me for? Tell me! Tell me what you are arresting me for. Is everybody watching? What is he arresting me for? Tell me what it is, I want to know what the charge is. I seriously want to know the charge.

That’s often how it happens on TV, in part because it makes for good drama. On TV, the officer announces the arrest, announces the crime of arrest, and then reads the suspect Miranda rights. But these are not actually constitutionally required. As the Court explained in Devenpeck v. Alford, 543 U.S. 146 (2004): “While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.” In Devenpeck, the Court rejected a requirement that probable cause for an arrest must be measured by reference to the offense that the officer named at the time of arrest. Such a rule was improper because it hinged on the subjective belief of the officer, and because it would have “perverse” consequences:

[T]he predictable consequence of a rule limiting the probable-cause inquiry to offenses closely related to (and supported by the same facts as) those identified by the arresting officer is not, as respondent contends, that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather that officers will cease providing reasons for arrest. And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist.

The right to notice instead comes later, after the arrest has occured. A person arrested must be given a probable cause hearing, ordinarily within 48 hours of their arrest. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The government will have to inform the suspect of the reason for arrest then, as the government has to establish probable cause based on a specific offense. Statutes provide for additional notice of the nature of the charge and the maximum penalty at that time, as well. See, e.g., Fed. R. Crim. Pro. 5.

I should add that this is the federal rule, and as far as I know most states follow it as well. However, there may be some states that have a statute or state constitutional rule requiring or encouraging notice of the crime of arrest at the time of arrest. If so, I hope commenters will point them out in the comment thread.

Finally, although it’s not directly at issue in the Eltahawy arrest, it might be helpful to point out a similarly widespread but mistaken belief that officers must read arrestees their Miranda rights. There is no right to be read Miranda rights on arrest. Miranda merely impacts what statements are admissible in response to police questioning after arrest or its functional equivalent. If the police don’t want to question the person, or if they want to question the person but either don’t want to use the statements at trial or they think one of many exceptions to Miranda will apply, they are free not to read the suspect Miranda rights. See generally Chavez v. Martinez, 538 U.S. 760 (2003).

Anyway, it’s probably not so surprising that Eltahawy misunderstands her constitutional rights.  As the video shows, she also seems to think she has a First Amendment right to vandalize the private property of others that carries a message she opposes.  (!) But I thought I would leave the First Amendment issue to others, and just focus on the rights at arrest.

UPDATE: It turns out that New York state law does have a statutory notice requirement, but it’s somewhat unclear if it applies when the officer catches the suspect in the act. The general notice requirement is found in N.Y. CPL. LAW § 140.15:

The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.

The uncertainty as to whether it applies here follows from its history. Section 140.15 is an updated version of the former Code of Criminal Procedure § 180, which had an explicit exception when the defendant was arrested in the actual commission of the crime. New York courts reasoned that this made sense because a person arrested in the middle of a crime “is fully aware of what he is doing and why he is being taken into custody.” Squadrito v. Griebsch, 1 N.Y.2d 471, 474 (1956). The circumstances created an implied notice. See People v. Coffey, 12 N.Y.2d 443, 453, 240 N.Y.S.2d 721, 191 N.E.2d 263 (1963) (where a defendant was arrested for speeding but not informed of the reason for arrest, there is no requirement of notice because “on the whole picture [the person arrested] had for our present purposes sufficient notice as to the cause for his capture and detention”). The updated version of the statute was passed without commentary, and there is some uncertainty as to whether the new version was meant to incorporate the caselaw on the earlier version on the theory that the person has implied notice as to the reason of their arrest if they are caught in the act. People v. Henry, 152 Misc.2d 848, 579 N.Y.S.2d 565 (N.Y.Sup. 1991). If any New York practitioners know more of the details, please send them on.