The Arrest Process
When someone is arrested by the police, a specific series of events follows. The police
must follow legal procedures during the actual arrest process, and at many other stages
along the way to actually placing a suspect in jail.
- An arrest occurs when police take you into custody and is complete the moment
you, as the suspect, are no longer free to walk away from the arresting officer.
- In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona, that individuals
who are under arrest for suspicion of having committed a crime have certain
rights that must be explained to them before any questioning may occur. The
rights are designed to protect your right to be free from self-incrimination under
the Fifth Amendment to the U.S. Constitution. There are five different rights,
known as the "Miranda Rights":
- You have the right to remain silent and to refuse to answer questions.
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- Anything you do say may be used against you in a court of law.
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- You have the right to consult an attorney before speaking to the police and to
have an attorney present during questioning now or in the future.
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- If you cannot afford an attorney, one will be appointed for you before any
questioning if you wish.
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- If you decide to answer questions now without an attorney present, you will still
have the right to stop answering at any time until you talk to an attorney.
Note: Miranda rights must only be read when an individual is in police custody and is
under interrogation. Therefore, if the police stop you to give you a traffic ticket, and
you start explaining to them why you were speeding, you cannot later protest that you
were not read your Miranda rights. While the police may have been "interrogating" you
in a certain sense, you were not in police custody unless your freedom of action was
curtailed to a degree associated with formal arrest; see your state laws for a definition
of police conduct that would be associated with formal arrest.
- If you are stopped by the police, they may frisk you by performing a "pat-down"
of your outer clothing in order to determine if you are concealing a weapon.
Later, after your arrest, they may perform a full-blown search of your person
and immediate surroundings to ensure that you do not have any weapons, stolen
items, contraband, or evidence of a crime. If the police take possession of your
car, it may be searched as well.
- In many jurisdictions, you have the right to make a telephone call, or calls, once
you are placed into custody. In some states, you are only allowed to call
someone in order to secure a lawyer or to arrange for bail, although you may be
able to call a family member or friend to help you make those arrangements.
Generally, you are not entitled to make a telephone call until after you have been
booked.
- The police may take any personal property or money that you have with you and
put it in a safe place after performing an inventory. The police will ask you to
sign the inventory and, after reviewing it, you should do so if you agree with the
contents of the inventory.
- Once you are arrested, you will be booked. During the booking procedure the
police will ask you for basic information about yourself (such as your address
and birth date), and fingerprint and photograph you. You may also be asked to
participate in a line-up, give a handwriting sample or do similar things.
- If you are detained but not booked within a reasonable period of time (usually
several hours, or overnight) your attorney may go to a judge and obtain a writ of
habeas corpus. A writ of habeas corpus is an order issued by the court
instructing the police to bring you before the court so that a judge may decide if
you are being lawfully held.
- Once you are arrested by the police, the information will be provided to the
appropriate prosecutor's office. The prosecutor will then review the information
before making an independent decision as to what charges should be filed.
Note: If you have been arrested for a felony, a prosecutor may enlist the services of a
grand jury to review the available information in order to determine what crimes you
should actually be charged with.
- If you are placed in custody, you have the right to promptly appear in court to
hear the charges filed against you and enter a plea. This usually means that the
prosecutor must decide within 48 hours which charges, if any, will be filed. A
prosecutor is not bound by the initial charge decision, but may later change the
crimes with which you will be charged once more evidence is obtained.
- You will have an appearance in court called an arraignment at which point the
charges against you will be read and you will be asked whether you plead guilty
or not guilty.
Note: A third possible type of response to an indictment is that of "nolo contendere" or
"no contest." Nolo contendere is not strictly a plea, but means that you do not contest
the charges made by the government. The plea of nolo contendere cannot be used in
other aspects of the criminal trial as an admission of guilt, but can be used only in this
phase as an implied confession of the specific offense charged and an admission of the
facts stated in the indictment. A plea of nolo contendere is only accepted by a judge if
they feel that it is being made voluntarily and intelligently.
- If you are placed in jail, you may be able to get out prior to your trial if you "post
bail." Bail is money you pay to the court in order to ensure that you will appear
in court when told to do so. If you do appear as required, the bail will be
refunded to you once the case against you is concluded. If you do not show up,
the court keeps the money and can issue a warrant for your arrest.
- Bail may be paid in cash or in a cash equivalent. You may also be allowed,
depending upon the circumstances, to post a bond. A bond is a guarantee of
payment of the full bail amount should the need arise. In other situations, you
may be allowed to be "released on one's own recognizance." This means that the
payment of bail is waived on condition that you appear in court when required.
This is generally only used in crimes that are minor in nature or where the judge
is of the opinion that you are a trustworthy individual who is unlikely to flee the
jurisdiction.
- Not every arrested individual is entitled to bail. In particularly heinous crimes, or
where there is a risk that the defendant will flee the jurisdiction or harm
members of the public, bail may be denied and the defendant will be kept in jail
as a "pre-trial detainee." You may also be considered a "pre-trial detainee" if you
are unable to post bail for your release.
- The judge is responsible for setting your bail. In many jurisdictions, there is a
pre-set schedule listing the bail amounts for particular crimes. In other
situations, bail may be determined on a case-by-case basis. The Eighth
Amendment to the U.S Constitution requires that bail not be excessive.
Disclaimer
This publication and the information included in it are not intended to serve as a
substitute for consultation with an attorney. Specific legal issues, concerns and
conditions always require the advice of appropriate legal professionals.
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