Okay, a show of hands, who’s ever heard them say this one on a TV show? POLICE: “You’re under arrest.” SUSPECT: “On what charge?” POLICE: “Suspicion of murder.”
Why did I think a show of hands would work in a written medium?
Here’s a little tip for the next time any of you might be writing dialog for a police procedural; unless you’ve got Joan Fontaine married to Cary Grant in a Hitchcock movie, there’s no such thing as suspicion of murder. Or suspicion of anything, for that matter.
In our criminal justice system, all crimes are statutory. That means laws were written which created the crimes and defined the crimes’ elements. Let’s take murder, for example, because that’s the crime people are arrested for “suspicion of” committing on TV. The elements of murder are, most commonly, that the actor 1) purposely, 2) caused the death, 3) of another person. So if Cain shoots Abel with a gun and Abel dies we have a crime of biblical proportions. We also have all the elements of murder. But if even one element is missing, we don’t have murder. We may have some crime, but it’s not murder.
Say Cain didn’t know the gun was loaded then shot Abel and Abel died. Then Cain wouldn’t be guilty of murder, because Cain didn’t kill Abel on purpose. It would be some form of a negligent homicide, but not a murder.
Or if Cain shot Abel and Abel didn’t die, you wouldn’t have a murder. You’d have an assault of some sort, but not a murder, because no one died.
Finally, if Cain killed Abel, but Abel was a dog you wouldn’t have murder, because no person died. You’d have some form of animal abuse, but not a murder. (And calm down, PETA, no animals were harmed in the writing of this hypothetical.)
Suspicion is not a crime whose elements are defined in a statute. At least, I’ve never seen any statute which created a crime called suspicion and I’ve looked at the statutes of a lot of states. If your jurisdiction has a crime called suspicion on its books, let me know. I’d love to find out what it’s elements are. (I’m guessing oxygen, because it would be a lot of hot air.) However, because there’s not crime called suspicion on the books, the police can’t arrest someone for suspicion.
In the same way that the police can’t arrest you for suspicion, because it’s not a crime, they also can’t arrest you simply because they suspect you committed a crime. An arrest has to be based on probable cause not suspicion.
To have probable cause, the police have to be able to establish that it’s more probable than not that every element of the crime exists. (You do remember the elements of the crime, don’t you? We’ve talked about them periodically today.) The police also have to be able to establish that it’s more probable than not that the person they suspect of committing the crime, performed the acts which violated the statute. If they merely suspect someone, but don’t have probable cause, they can’t legally arrest that person.
In Terry v. Ohio, the Supreme Court ruled that the police may temporarily stop someone if they reasonably suspect that the person may be about to commit a crime. If the police see someone who looks like he’s casing a store he intends to rob later, the police may reasonably suspect he’s going to commit a robbery. In that case, the police may stop that person and ask him questions find out what he’s up to. Once the police have done that, they have to let the person go. The bad news is they can’t arrest him. The good news is, as the person knows the police are on to him, he’ll probably abandon his plans to rob the store.
If the police happen upon a crime – say someone has just been murdered in an alley – and the police see somebody lurking around, they may reasonably suspect that somebody met the body while the body was still alive and killed him. Under the Terry rule, the police may approach that person and ask him some questions. But they may not arrest him no matter how reasonable their suspicion may be.
Sometimes while questioning the person they suspect, the police get some actual information which gives them probable cause. A witness might come up and say he saw that person commit the murder. Or the suspect might make the classic Murder, She Wrote http://www.imdb.com/title/tt0086765/combined mistake and says something about the corpse that only the murderer could know. Once something like that happens and the police get probable cause, then they can arrest the person. But not before. Not when they only suspect him.
So, if the police can’t arrest someone for suspicion of committing a crime, how did that whole cliché start? Here’s my theory.
Last week, I talked about another common, but illegal, police practice: the investigatory hold. That’s when the police put someone they suspect of committing a crime into custody so that they can investigate the matter further. If the police get enough information to charge the person, they will present the case to the district attorney for formal charging. If they don’t they’ll release the person. I suspect arresting “on suspicion” was simply another way of saying performing an investigatory hold that the police started using because it sounds cleaner. It sounds more like the person being detained actually did something wrong – after all, he’s suspected of something rather than being investigated.
Well, police in movies and on TV, anyway. Did the police in the real world ever actually say that? I don’t know. But I have my suspicions.
