Duty of off-duty officers to arrest

[CookingWithGas]

In Cecil’s column on searches by concert promoters he says

The question is somewhat complicated by the fact that the “private security people” employed by concert promoters are often off-duty coppers. An off-duty police officer has the right–nay, the duty-- to make an arrest when he or she witnesses a crime. This means that your friend–the one with the Columbian–could have been charged with possession and carted off to the slammer.

However, the search was not based on probable cause, so could an arrest really occur? If someone took out a bag of drugs and said, “Hey, look what I’ve got,” that’s one thing, but if the drugs were found in a search, albeit a consentual one, would the stuff be legal evidence? Does an off-duty cop need to identify himself as such when performing a search on behalf of a private employer, so the searchee knows that he could be subject to arrest if he has anything illegal on his person?

[bordelond]

*Originally posted by CookingWithGas *
**1) If someone took out a bag of drugs and said, “Hey, look what I’ve got,” that’s one thing, but if the drugs were found in a search, albeit a consentual one, would the stuff be legal evidence?

2)Does an off-duty cop need to identify himself as such when performing a search on behalf of a private employer, so the searchee knows that he could be subject to arrest if he has anything illegal on his person? **

In Louisiana and Mississippi …

1. Yup.

2. Nope.

[Nametag]

Everywhere in the U.S. (and I suspect 'most everywhere), a search based on consent is absolutely legal, and all of its fruits are admissible as evidence at trial. The question is whether the consent was coerced or not, and I think this would be a clear “not.”

[Riboflavin]

The police only need probable cause for a **non-**consentual search; if you consent to a search, then anything the police find can be used against you in court. The police will often try to get someone to consent to a search even if they have probable cause because a consentual search is always admissable, but a judge might disagree about what constitutes probable cause. As far as ‘does an off-duty cop have to ID himself’, that’s going to vary depending on location, but I would expect the answer to be ‘no’. I also wouldn’t be surpised if the fine print on the ticket agreement said something like ‘by attending this function, you agree to be searched before entry. Management reserves the right to prosecute for any violation of the law’ (or something similar, that wording is probably screwey), so you probably had your warning that you could be arrested anyway.

FYI, Cecil’s comment about off-duty cops having a duty to arrest is not true for all of the US. In NC, for example, police officers can only make arrests in their own jurisdiction (generally one city or county); elsewhere they can only preform a detention like an ordinary citizen, and some departments restrict what off-duty cops can do in their jurisdiction. Note also that it’s not legal in NC to detain someone for typical drug possession, since that’s not a felony or one of the other ‘detention allowed’ crimes.