11/16/2009 05:12 am ET Updated May 25, 2011

A "Person of Interest" Can't Be Arrested

The tragic murder of Yale medical student, Annie Le, has now resulted in the brief detention of a so-called "person of interest," Raymond Clark, III. The New Haven police went out of their way to label Clark a "person of interest" rather than a "suspect." They seem to deny that he has been "arrested." I understand why they choose to use this semantic slight of hand, but the Constitution does not recognize the involuntary detention of a person of interest. He has either been arrested or he hasn't. If he was in fact taken away in handcuffs and compelled to go to the police station, he was arrested. Under the Constitution, in order to be arrested, there must be probable cause. Probable cause means that the police suspect Clark of the murder. If they did not suspect him -- that is if he was not a suspect -- then his arrest would be unlawful. It is true that search warrants have been issued for his home and for bodily evidence. He may indeed be compelled to provide hair, blood, saliva and other samples. But he may not be arrested, handcuffed and taken to police premises to provide these samples, unless there is probable cause to arrest him, or unless he refuses to comply with the warrants.

So, there are only two possible alternatives: 1) The police do regard Clark as a suspect and have presented the judge with sufficient evidence to justify a probable cause arrest, and they are using the term "person of interest" in order to keep their options open with the public; or 2) Clark is indeed only a person of interest and there is no probable cause against him, thus making his arrest unconstitutional, and the evidence gathered from him subject to suppression.

I understand the motivations of the New Haven police in keeping the issue vague. Were they subsequently to come up with a better suspect, they would not want his trial lawyer to be able to point to the fact that the police originally suspected another man. That's all fine and good, but it doesn't satisfy the constitutional requirement of probable cause before a suspect can be subjected to a full blown arrest with handcuffs, even for a brief period of time.

I hope the police get the right man and that this horrible crime is solved. But the public has the right to know what the Constitution commands when it comes to arresting and detaining "suspects" or "persons of interest."