What happens when someone is arrested (by an ill-informed officer) and put in jail for a non-existent crime? I’m assuming you’d eventually be released, but would it occur when you go to trial or when the officer is typing the report and fails to find the desired statutes? Is there a formal name for this phenomenon? How common is it? Do you even get an apology? 
When all else fails, there is always Mopery
Mopery
Loitering while walking. Hanging out in an environ, i.e. a particular block; moving so as to avoid arrest on more traditional loitering charges. Mopery is not a real charge or violation of the law, but a descriptive term, stretching the legalities of loitering, which would include staying in one place.
So you are convicted of mopery, not loitering
I’m sure the real lawyers will be along shortly, but the short answer is that attorneys, judges and magistrates get involved long before a trial actually occurs. After an arrest, you’ll be arraigned in fairly short order, at which time the judge will hopefully notice that the action you were arrested for is not actually a crime.
Unless you’re talking exclusively about the US, this is common in Cuba. There are a number of “crimes” that anyone can be charged with that don’t involve any actual criminal activity. The most used of these is “peligrosidad preventiva”, or “preventive dangerousness.” Which is defined more or less as someone who is arrested, convicted, and sentenced because there appears to be a posibility that they might comit a crime at some time, it usually gets you a four year sentence.
It’s not common, but not unheard of.
In Virginia several years ago, someone was alarmed to notice two men wearing holstered handguns in a shopping mall and called the Fairfax police. The responding officer arrested both men for violating a Virginia law which prohibits carrying a loaded firearm in a public place. Upon his return to the station, the officer discovered that while the title of the law was indeed “Carrying loaded firearms in public areas prohibited…” the definition of “firearm” in that law was that it had to have “…a magazine that will hold more than 20 rounds of ammunition…” or be “… designed by the manufacturer to accommodate a silencer…” He contacted both men to apologize and arrange the return of their property, and destroyed the arrest/summons paperwork.
Sometimes the issue can go further – there may be a genuine dispute as to whether the acts in question constitute a crime. It’s conceivable, and has happened, that a criminal trial may commence before a judge rules that “X,” may have happened, but isn’t a crime. Indeed, it might even be an appellate court ruling that sets the matter to rest.
I’ve had a somewhat similar situation I’ve always been curious about. If your car is old enough, my state lets you permantly register it and put on “year of manufacture” plates. In 2006, the first year it was eligable, I put 1976 plates on my old pickup. They kept the '76 plates here for a long time and they didn’t used to make you get new plates, so until fairly recently you still saw them on the road with tabs on them.
Well, one day I got pulled over by a cop who was unaware of the Year of Manufacture rule and apparently thought I hadn’t paid my registration fees since the Carter administration. I got a no insurance ticket, but I was able to clear it up since I just didn’t have the cards with me, but I’ve always wondered if I’d had a pound of weed or something in the front seat if the traffic stop due to the cop’s ignorance of this particular rule would count as a valid search or if it would be grounds for dismissal.
If there was no reasonable suspiscion for the stop, the evidence would be suppressed. Under the Fourth Amendment, an illegal stop taints all evidence obtained pursuant to the stop, unless the taint is purged by subsequent events. This will occassionally happen when an officer initiates a traffic stop for not using a turn indicator, only to find out later that use of the the turn indicator in that circumstance isn’t required.
Incidentally, “purging of the taint” is also one of the most unintentionally funny phrases in law.
The scariest thing I’ve read this week.
If memory serves, from “Revenge of the Nerds” there was a scene where the nerds go to the police for help. The desk sergeant points to a guy in a trench coat and says, “See that guy over there? He’s here for mopery.”
Nerds: “What’s that?”
Desk Sergeant: “Describing yourself to a blind person.”
This sort of thing happens when a law is found to be unconstitutional – the law still sits on the books, and is occasionally enforced by ill-informed officers. For example, regarding the general age of consent for anal intercourse here in Ontario, R. v. C.M. has set out that s. 159(2)(b) of the Criminal Code of Canada should read 14 rather than 18. The federal government has not re-written the law, so it still sits there on the books, despite it no longer being the law.
When arrests are now made under this provision, it is open for debate whether the officers are ignorant of the law, or are deliberately misusing it to roust people.
I believe he said “Exposing yourself to a blind person.”
As for the OP, the officer doesn’t actually charge you with the crime. The State Attorney’s Office will read the Arrest Affidavit and then decide to charge you or not. If they read the affidavit and see that there was no real crime committed or that you did not meet the criteria for that particular crime, they will issue a “No Information Notice” or something and you will never be charged with a crime. So it’s then possible to have been arrested but never charged with a crime.
In his autobiography ‘Will’, G. Gordon Liddy told about the drug bust he participated in at Timothy Leary’s home. (IIRC, this was after Liddy had left the FBI and become a prosecutor). Liddy released a frightened young boy after the boy told Liddy that his father was president of some corporation, but not until Liddy had threatened to charge the boy with ‘mopery with intent to creep’.
Could charges of false arrest and/or false imprisonment be levied in some cases of this? If so, any real chance of the officer(s) involved being found guilty?
This also happened in Tom Delay’s case. He was charged with a certain kind of conspiracy that wasn’t made a crime until after he was alleged to have committed it. BBC NEWS | Americas | DeLay conspiracy charge dropped In his case, the trial judge dismissed the charge, and the prosecutor appealed the dismissal, which was upheld. There were other charges, so he’ll be tried on those.
Not automatically. If the there is no reasonable suspicion or probable cause then the evidence would would thrown out. If the officer acted in good faith and it was later revealed that the reasonable suspicion was false then it is not so automatic.
Massachusetts had anti-witchcraft laws on the books until the mid-1970’s (Gov. Dukakis got most of them removed). But is it still illegal to practice sorcery (the harm of a person via magical means)?
Is blasphemey (the insult of God) still a crime?
Just being a woman with a male foreigner at night can get you arrested. I was walking with a friend in Vedado one night when she suddenly grabbed my hand and said, “Run! Fast!” It seems the police were rounding up any woman just for being out late as a possible prostitute. From what she said, though, they just put them in jail for a day or two, and there’s no trial.
It appears the law is not well-settled on this point.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=sc\20050805\04-0791&invol=1
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9950338 (no probable cause where officer falsely believed that vehicle’s state of origin required two license plates)
I agree, it’s not.
Nitpick: 1976 was the Ford administration.