What Constitutes “in the presence” Authorizing an Officer to Make a Warrantless Arrest

Origins

It is almost basic to law enforcement that certain arrests (oftentimes misdemeanors) must take place “in the presence of” the officer before that officer can make a warrantless arrest.  However, this is not a rule that comes from the 4th Amendment, but from local statutes.  In fact, there are a number of situations where statutes have allowed officers to make warrantless arrests for certain misdemeanors not committed in the officers presence (e.g., protective orders, DUI accidents, domestic assaults with injury).  However, as these statutory restrictions are at least relevant to the 4th Amendment seizures involving an arrest, they will be addressed.

Sight, Smell, and Hearing

Cleary, if an officer can witness the crime, it is in his presence.  This typically includes visual aid such as a binoculars.  Likewise, if an officer is able to hear an offense, it is typically considered to have been committed within his or her presence.  Finally, if an officer is able to smell an offense (like the odor emanating from the illegal possession of drugs), the crime is considered to be committed within the officer’s presence.

Admissions of the Suspect

Interestingly, there is a body of law that suggests when a person admits he or she is presently committing an offense, the offense is considered to be in the presence of the officer (for instance, if a suspect tells the officer he or she is currently illegally possessing narcotics or a weapon).

Fellow Officer Rule

The fellow officer rule basically allows the police to rely on the collective knowledge of the officers.  For instance, if an offense has 4 elements, two are observed by Officer 1, and two are observed by Officer 2, then the offense is considered to be committed in its entirely in the presence of a police officer.

Legal Supplement

Thompson v. State, 1969 OK CR 136, 453 P.2d 314,

Here the officer perceived the fact of the defendant speeding by observing the radar screen and seeing the car in his rear view mirror. This was not something communicated to the officer by some other person, but something the officer observed by his sense of sight.

People v. Steinberg, 307 P.2d 634 (Cali. 1957),

[A]ided by a pair of field glasses, Kubiak again clearly saw appellant talking on the telephone in his same upstairs room. [Which indicated appellant was engaged in illegal bookmaking]

Appellant had the misfortune to commit his crime in the presence of the officer.

Cooper v. Commonwealth, 577 S.W. 2d 34 (Kentucky 1979),

It is a fundamental principle that a policeman may "observe" with any of his five senses for purposes of a misdemeanor arrest.

Therefore, when Trooper Arnold approached the car and smelled marijuana smoke, he had probable cause to believe that a misdemeanor was being committed in his presence by Cooper, and the arrest without a warrant was proper. 

People v. Ward, 252 N.W. 2d 514 (Mich. App. 1977),

Once the defendant confirmed that he had no valid license, the officer in this case then had sufficient information to arrest the defendant for a misdemeanor committed in the officer's presence.

People v. Dixon, 222 N.W.2d 749 (Mich. 1974),

Another police officer is not a third person within that policy. Courts in other jurisdictions have developed a "police team" qualification of the presence requirement, permitting officers who are working together on a case to combine their collective perceptions so that if the composite otherwise satisfies the presence requirement that requirement is deemed satisfied although the arresting officer does not himself witness all the elements of the offense.

All Internal Citations Omitted