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When a person is arrested, the law enforcement agency responsible for the arrest creates an arrest record (also known as an arrest report), a type of criminal report filled with the details of the incident, along with information about the arrested individual. Generally, the arrest record then becomes public information accessible to everyone.
Arrests are usually made either when a law enforcement officer witnesses a crime, or responds to the report of a crime, or as a result of the issue of an arrest warrant on account of substantial evidence that a person committed a crime. In both cases, an arrest record is produced.
An arrest record is made regardless of the final outcome of the situation, or whether the arrested individual is found guilty of their crime(s).
This may seem like a silly question, but it’s important to clarify what legally constitutes an arrest. Technically, an arrest occurs when a legal authority takes a person into custody against their will, often through the use of force. In the event of an arrest, the arrested person is not free to leave.
An arrest is almost always made by an officer of the law, either a federal, state, county, or local police officer. However, in rare cases, a civilian not affiliated with law enforcement may make a “citizen’s arrest”. An example of this is in the case of a shoplifting incident when an employee or manager of a story can legally detain a suspect until the arrival of law enforcement personnel.
Courts use the “reasonable man” principle to determine whether a person has been arrested or not. This entails asking a reasonable person to put themself in the position of the defendant and asking them whether they believe they were free to leave of their own volition during the incident.
In a majority of cases, arrest records are considered part of the public record and are available to the general public. This is due to the Freedom of Information Act (FOIA) of 1967, which requires federal agencies to release requested documents and information if they are not protected by one of nine special exemptions. The FOIA has made background checks easy to perform by individuals and organizations, and documents including police reports, court records, and vital records such a birth and death certificates are not difficult to track down.
There are a number of reasons why you may not be able to access an arrest record. One of the main ones is that releasing the arrest record violates one of the special exemptions listed in the FOIA.
The FOIA includes nine exemptions that allow agencies to withhold documents, such as arrest records, and not release them to the public. They are:
Additionally, some state laws limit the availability of arrest records due to the fact that they are perceived as one-sided documents that do not include the arrested person’s account of the incident.
Similar to Exemption 7, arrest records may be kept from public access at the state level in the case of an ongoing investigation, or if the release of the arrest records involves a risk to public safety, to an individual connected to the arrest, or to the arrested person.
Compared to an arrest record, a criminal record is a more thorough document that details an individual’s entire criminal history, including arrest warrants, arrests, third party complaints, convictions, and even dropped cases.
An arrest record merely details the incident of an arrest and does not include information about whether or not the arrested person was found guilty of the associated crime.
While crime has steadily dropped in the United States over the past several decades, arrests have gone up, particularly for younger age groups. Typically, law enforcement makes around 10 million arrests each year. Here are some key statistics on arrests in the United States:
Sources: Federal Bureau of Investigation, RAND Corporation
In 2018, the greatest number of arrests were made for:
Source: Federal Bureau of Investigation
Physical copies of arrest records are generally kept by the law enforcement agency responsible for the arrest, usually by the county sheriff’s office or the local police department.
While there is currently no way to have a federal criminal record cleared, in some cases, an arrest record may be cleared, or expunged, at the state level, depending on local jurisdiction.
However, state laws vary considerably on how expungement can be performed, and the process is frequently rather complicated, typically requiring the services of a law professional.
Sometimes it’s simple: if a person is found not guilty in court for the crime they were arrested for, the arrest record may be cleared.
Another scenario wherein an arrest record may be cleared is if the crime was committed when the party was a juvenile. However, for certain types of crimes, like sex crimes and some traffic offenses, arrest records may not be cleared.
There are also situations in which an arrest record may be “sealed” by court order, in that it still technically exists within the system but it is no longer accessible to the public, except under special circumstances.
If an arrest record contains incorrect information, one should make a direct appeal to the law enforcement agency responsible for the arrest to have the information removed or corrected. Often, states will have an official form available to fill out and submit to correct false information found in arrest reports or other documents related to a person’s criminal record.
The best way to acquire an arrest record is to visit the local courthouse or police department and make a request for a copy of the record. The clerk may ask for an administration fee of around $10-$30.
In addition to visiting the local office of a court or law enforcement agency, people can often submit a request to a centralized state law enforcement agency through the mail or via the internet in order to view arrest records.
In many states, the executive branch of the state government includes a law enforcement agency that oversees all other state law enforcement agencies and is in charge of coordinating public safety. These agencies typically accept mailed requests to view government records.
One can also make an FOIA request to view an arrest record through contacting the FBI, which also comes with a fee.
In addition to making direct requests to local courts and law enforcement agencies to obtain arrest records, there are also online services that provide access to these and other public records in exchange for a membership fee.
While many of these sites claim to offer “free background check” searches, most will inevitably ask visitors to pay before delivering the results of the search.
However, despite the fact that users must pay to obtain an arrest record from an online service, it’s nevertheless a convenient means of getting these documents. The offices of government agencies are frequently marred by inconsistent service and take a long time to process requests to view documents. Sometimes it’s worth it to pay a fee to use an online background check service, rather than endure the extended delays typical of government offices.
