Probable cause is the legal standard that a police officer needs to reach to make an arrest. Law officers can use any number of factors to decide whether there is probable cause to make an arrest for domestic violence, including claims made by witnesses or the alleged victim.

Do Police Have to Arrest Someone When Domestic Violence is Reported?

Probable Cause Computer ScreenDifferent states have different laws about when an officer should make an arrest when responding to a domestic violence call. Under Mass. Gen. Laws Ann. Ch. 209A § 6(7), arrest for domestic abuse may be:

  • Mandatory. A law officer must make an arrest when someone at the scene has violated a temporary or permanent vacate, restraining, or no-contact order or judgment.
  • Preferred. A law officer should make an arrest whenever the officer witnesses (or has probable cause to believe) a person has committed a felony, certain types of assault and batteries, or a misdemeanor involving abuse (usually and assault and battery on a family member--often called domestic violence). Officers are encouraged to make an arrest even if the accuser doesn't want to press charges. In most cases, a person arrested for domestic violence cannot be released on bail sooner than six hours after their arrest. Indeed, the key point is that if the police are called to a domestic assault incident,an  arrest is preferred and indeed very likely to happen.
  • Attempted. If an officer has probable cause to make an arrest, but the suspect has fled the scene, the officer has a duty to alert patrols in any jurisdictions where the suspect is believed to be going in order to locate and arrest the suspect.

What Constitutes Probable Cause?

In a domestic violence case, a police officer will consider the safety of the victim, children, and other family members in making the decision to arrest a suspect. If an officer has reason to believe that a family or household member has been abused, or is in danger of being abused, the officer can use any reasonable means to prevent further abuse.

When a report of domestic violence has been made, officers may judge whether there is probable cause based on:

  • Attempts to cancel the call. If a second call to the police is made to cancel the original call, the responding officers will be informed of the second call but continue to respond to and investigate the situation.
  • Initial observations of the scene. Weapons, broken furniture, smashed windows, broken locks, and other damage may be considered evidence of a domestic violence incident. Officers may also consider any arguments, threats, or physical assault overheard at the scene.
  • Both parties' explanations. Officers should listen to each party's version of events individually, without unnecessary interruptions from the other party. Officer may separate the parties to avoid one party overhearing, influencing, or intimidating the other.
  • Evidence inside the premises. Officers responding to a domestic violence call may enter private premises without a warrant if they are requested to do so by someone in lawful control of the premises, if there is imminent danger of violence, if a breach of the peace occurs in the officer's presence, or after repeated attempts to contact residents.
  • Past behavior. An officer may consider an alleged aggressor's past criminal history or behavior when making the decision to arrest. This can include whether the alleged aggressor is known to possess weapons, has a history of abusing the current accuser or other victims, has used threats or weapons to break the law in the past, has made any suicide attempts, has been the subject of current or past protective orders, or has other reason to be considered dangerous.

While nearly anything can be considered in a law officer's decision to make an arrest, the arresting officer can be called upon to defend the grounds for the arrest. If there wasn't a good enough reason to believe that you were dangerous or that members of your household were in danger, the charges against you may be dropped.

At Nate Amendola Defense, we help clients overcome accusations of domestic violence and do everything we can to prevent these charges from ruining their life. Contact us today to set up a confidential consultation and have us get started on building your best defense.

 

Nate Amendola
Massachusetts criminal defense attorney, helping resolve OUI, domestic violence, drug and criminal charges