Can You Arrest Based Only on a Verbal Allegation?

Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

Recorded in Texas while teaching a class. An officer asked about a domestic call where the only thing you have is one person saying they were struck, and the other saying it never happened. No bruising, no disheveled appearance, no neighbors, nothing thrown around.

All right, I have a very good scenario for you. This one has to do with, can or should you make an arrest based on nothing more than a verbal allegation of domestic violence, family violence, in the great state of Texas and so forth.

Hey guys, my name is Anthony Bandiero, broadcasting from the great state of Texas. I’m here teaching a class, and this officer asked a question about verbal accusations of domestic.

So essentially you arrive at that call, the wife says, hey, he struck me. And of course the husband’s saying, I did not do that.

And the question is, what if you have absolutely no corroborating evidence? There’s no bruising. There’s no disheveled appearance that they’ve been going at it. There’s no neighbors saying, oh yeah, they were yelling at each other just before you got there. The house is tidy. Doesn’t look like they’ve been having any kind of physical altercation.

You’ve got nothing except an alleged victim saying that they were struck by their spouse.

Is that PC to make that arrest?

Is a bare accusation probable cause?

And generally speaking, the rule is no.

If that was the case, I can go around and say, hey officer, tap you on the shoulder, I know you may be a little busy right now, but that person was just selling drugs on the street corner. And they say, no I wasn’t, I’m just here waiting for the bus. And you say, you know what, it doesn’t matter. Anthony says you’ve been selling drugs, you’re under arrest.

Also, we do have to be somewhat concerned about, sometimes when people are in an emotional relationship, sometimes they do say things which are not true. I’m not saying we go with this mentality that we disbelieve the victim. That’s not what I’m trying to say here. But what I am saying here is, we’ve got to be a little cautious, because taking someone to jail is obviously a very intrusive thing.

Now there was a case out there, it was a district court case out of Nevada. I believe it was, it might have been a little higher than that. But the point was that the court made mention that we do not take people to jail on nothing more than a verbal accusation of criminal conduct. That is not probable cause.

So what turns an accusation into probable cause?

However, I will tell you that this should be rare.

At the end of the day, you get paid to be an investigator. Make an investigation. Look at the totality of the circumstances.

Look at the victim’s appearance and attitude and emotion. Are they crying? Are they emphatic that it happened? And that’s part of this. Again, we’re just talking about as a baseline, hey, he committed a crime, he pushed me, end of story. Be careful with that one.

But look at their behavior. Look at the environment. Look at their history. Does the suspect have a history of this? That’s going to help you.

Look at the environment itself, the house. Does it look like they’ve been going at it and throwing stuff around? She says, he threw me on the bed. Okay, show me the bed. And you look at the bed and it looks like it was made, and it looks like there’s imprints on it, somebody’s been thrown down on it. That is the type of corroboration, I will tell you, that it’s probably a fairly low burden here to make that arrest.

You do want to lean on the side that if a person says that they were a victim of a crime, that you do want to believe them. But you also need something more than a verbal accusation. So it’s not a lot, and so forth.

Are you protected if you get it wrong?

Now most states, including the state of Texas I believe, have an immunity statute, language that tells you that if you get it wrong, you are immune from civil lawsuit. Meaning, if you talk to the victim, you genuinely believe that this person was the victim of that crime, even though you don’t have beyond a reasonable doubt, that’s not what’s required here, because you know that in most states this is going to be a mandatory arrest.

So you do not need beyond a reasonable doubt. You need probable cause.

But let’s say that you made the arrest, you thought there was probable cause, later you find out that you did not. You should be immune from civil liability.

That does not mean, well Anthony, if that’s the case, I’ll just arrest everybody no matter what, just based on accusation. We don’t want to make a bad arrest. But the point is, you do get immunity for getting it wrong.

What if you don’t arrest and something bad happens?

Either way, right? You make the arrest, there wasn’t probable cause, you should be immune if the court does 20/20 hindsight and says, you know what, you actually didn’t have probable cause.

But also, you get immunity if you didn’t make the arrest because you genuinely believed that you did not have probable cause, and something bad happens to the victim later.

That’s part of living in a free society. We have to call the shots. We have to determine whether or not we have probable cause. And even if we did, but in retrospect we thought we didn’t, and something bad happens, it’s unfortunate. But of course, bad things happen as well. I’m not trying to justify, but I’m just trying to tell you, you have a tough job, and do the best job that you can.

What should you actually do on scene?

So at the end of the day, I would not make an arrest on nothing more than verbal accusations.

At the same time, do your job. Investigate it. Slow it down. Talk to your peers that have more experience than you. Ask them, hey, do you see anything else here that would indicate that the victim is being truthful and corroborating and so forth? You probably do, either way, right? That they’re being truthful or they’re lying to you. And then you go from there.

The short version

• Generally, the rule is no. A bare verbal accusation with nothing else is not probable cause.
• The reason is obvious once you flip it. Anyone could point at anyone on the street and you’d be arresting on that alone.
• Be a little cautious. Taking someone to jail is obviously a very intrusive thing.
• This should be rare. You get paid to be an investigator, so make an investigation.
• Look at the victim’s appearance, attitude and emotion. Look at the behavior, the environment, the history.
• Show me the bed. Corroboration is a fairly low burden here, but you need something.
• You do want to lean on the side of believing someone who says they were a victim. You also need something more than the words.
• Most states, including Texas I believe, have an immunity statute if you get it wrong in good faith. That cuts both ways, arrest and no arrest.
• You do not need beyond a reasonable doubt. You need probable cause.

I hope you like what we’re doing here at Blue to Gold. You will not be one and done. There’s no way that you can sit in my class for 8 hours, 16 hours, whatever, and say, you know what, now I’m good till retirement. No way. You’ve got to keep the conversation going, and that’s what these YouTube videos are all about.

Related from Blue to Gold

• What Is Probable Cause? (And Why It Won’t Win Your Case)
• Can You Seize a Bicycle Based Only on a Victim’s Word That It Is Stolen?
• Can Police Arrest for a Felony Committed Days Earlier?

This article is an edited transcript of Roadside Chat EP#881. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.