Was defendant arrested illegally if the case was dismissed in court because the plaintif never signed the complaint?

Recently on our legal forum a user asked, “I was wondering about the legality of my arrest. Is it considered an illegal arrest if I was arrested but the complaint was never signed?”

What is a legal arrest?

Under the Fourth Amendment of the U.S. Constitution Americans rights to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Given these rights it’s understandable that you are concerned that your rights may have been violated. A lawful arrest, however, can be performed as long as the police officers are able to establish probable cause for the arrest. Probable cause for an arrest can be established by any of the following:

  • Observation of criminal activity
  • Information from witnesses, including informants and victims
  • Police expertise
  • Circumstantial evidence
  • An arrest warrant issued by a judge

Victim refuses to sign the complaint

So let’s get back to your question. What I think you are really asking has less to do with whether or not the actual arrest was legal and more to do with whether or not you should actually be charged with the crime if the complaining witness or alleged victim has decided not to “press charges,” or further still, they have told the prosecuting attorney that they want the charges “dropped.”

Given the information provided above for establishing evidence or probable cause that a crime may have occurred, we will assume, for this discussion, the arrest was legal. A legal arrest, as mentioned, can be made with or without a complaint from a victim.

Now, let’s talk about what really happens after the arrest. If an alleged victim contacted the police and told them that someone had assaulted them and the police showed up at the house and there is evidence of an assault (e.g., the alleged perpetrator is standing there icing his hand and the victim has a black eye), the police may have enough evidence to establish probable cause for the arrest.

After the arrest, however, it is the prosecuting attorney (rather than the victim) who actually reviews the evidence gathered during the arrest and decides whether to file criminal charges against you. This is true whether the alleged victim made the initial phone call to the police station or filed a criminal complaint against you.

What often happens after the arrest, however, is that the alleged victim refuses to provide additional evidence for the case and they tell the police they don’t want charges filed. Although this can make the state’s case difficult or often impossible to prosecute, it is still up to the prosecuting attorney to determine if they have sufficient evidence to proceed forward with the case against you.

If the prosecuting attorney decides to dismiss the case they can file a motion with the court. This is not likely to occur, however, simply because the alleged victim decides they no longer want charges to be pressed. In fact, whether the victim wants the case to continue is generally not relevant to the prosecution’s will to prosecute, although it could make the prosecutor more willing to offer a more favorable plea agreement to the defendant.

Bottom Line:

The police can make a lawful arrest with or without a complaint from an alleged victim. In fact, they may simply observe criminal activity or receive information from another person that a crime has been committed. If the alleged victim filed the initial the complaint but later decides they do not want charges filed, this may not stop the prosecuting attorney from filing charges against the defendant after the arrest.


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