If You Are Arrested
Most people never think about what they’d do if they were to be arrested or taken into custody for questioning by the police. That’s something that only happens to criminals, right? Well, not always. The truth is that the terrifying experience of being arrested or questioned by the police can happen to anyone. A case of mistaken identity, an overly aggressive law enforcement officer, a dispute with another person, even a simple misunderstanding can result in virtually anyone being questioned by the police, arrested and even charged with a crime in a court of law. Should it happen to you, it is important to understand that you have very powerful rights that are guaranteed to you by the United States and New York State Constitutions. These rights are designed to protect your individual liberties and prevent law enforcement authorities from abusing their powers.
What Does Being Arrested Mean?
When a police officer or a private citizen takes you into custody, physically restrains or verbally insists you not leave in order to have you answer for an offense or a crime, you have been arrested. This may mean you will actually be taken into custody or you may be issued an appearance ticket, which requires you to appear before a judge at a specified time. (This is similar to receiving a traffic ticket, though it may involve a more serious offense than a traffic violation). When a police officer makes an arrest without an arrest warrant, the officer must give you a reason for arresting you (unless you were arrested while in the act of committing a crime or were being chased by the police).
If I am Arrested What Rights do I Have?
If you are arrested (with or without an arrest warrant), you have a number of rights that the police must respect:
- You have a right to refuse to answer any questions the police ask you.
- You have a right to consult a lawyer before you agree to answer any questions.
- You have a right to have an attorney present when you are questioned by the police.
- You have a right to have an attorney present at any identification ‘lineup’ that takes place after you have been arrested.
- You have a right to be brought before an impartial judge at the earliest possible time.
After you are arrested, you should be brought before a judge at the earliest opportunity where the charges against you will be read to you and you will be asked how you plead to the charges presented. When you appear before any court, you have the following rights:
- You have a right to have a lawyer represent you in any proceedings that take place in court or are related to those proceedings.
- You have a right to ask the judge to provide you with the time and opportunity to obtain a lawyer (phone and/or mail access).
- If you cannot afford a lawyer, you have a right to ask the court to appoint a lawyer to represent you.
- You have a right to request fair and reasonable bail.
What is an Arrest Warrant?
An arrest warrant is a document issued by a judge or magistrate authorizing law enforcement authorities to take you into custody in order to answer for a crime you are alleged to have committed.
- For an arrest warrant to be issued, the police must convince a judge that they have probable cause to believe that you committed a crime.
- Arrest warrants can be issued at any time of day or any day of the week.
- If you are arrested by a police officer who has a warrant, he must tell you that he is acting under the authority of a warrant for your arrest .
- Police must show you the warrant. (You can ask to read the warrant, and he should let you read it unless special circumstances exist.)
Generally, if a police officer comes to your home with an arrest warrant for you, he must also have a search warrant (also issued by a judge) if he intends to enter your dwelling through the use of force (any entry without your permission). However, if you refuse to allow a police officer with an arrest warrant into your house and he reasonably believes that you may escape, destroy evidence or that giving you notice will put him at risk, he can legally force his entry without a search warrant.
Can I be Arrested Without an Arrest Warrant?
Yes. A law enforcement officer can arrest you without an arrest warrant, under certain circumstances.
- If an officer has reason to believe that you have committed or attempted to commit a crime, an offense or a violation in his presence, he can arrest you without an arrest warrant.
- If an officer has reason to believe that you have committed a felony or a misdemeanor (even though not in his presence), he can arrest you without a warrant.
- If an officer has reason to believe that a private person had made a lawful citizen’s arrest, he can arrest you without a warrant.
In any of these cases, the officer must tell you why he is arresting you (unless you are attempting to escape or actually in the act of committing a crime). A law enforcement officer can pursue you beyond the limits of his jurisdiction (for example, from one town to another or from one county to another).
Can I be Questioned Without an Arrest Warrant?
Yes. If you are in a public place and a police officer has a reasonable suspicion that you are, have or are about to commit a crime, the law permits the officer to approach you and ask you questions. These questions may include asking for your name, address and the reasons for the activity the officer has observed. You have a right to remain silent and not answer any questions. If the police officer prevents you from ‘walking away’ or physically takes you into custody:
- The officer is required by law to advise you that you have a right to remain silent.
- The officer is required to advise you that you have the right to consult with an attorney and have the attorney present.
- The officer is required to advise you that anything you do say can be used against you in a court of law.
These rights are collectively known as ‘Miranda Rights’. If you are not told of these rights prior to a law enforcement officer questioning you (when you do not feel free to walk away), anything you say cannot be used against you in a court of law. However, if you say something to the officer that is not in response to an attempt to elicit information from you, it probably can be used against you in court.
When is it Legal to Search my Person, my Home or my Car?
In general, before a law enforcement officer can search your person or your home, he needs to possess a legally valid search warrant. Like arrest warrants, search warrants must be issued by a judge or magistrate based upon a finding that probable cause exists to believe that evidence of a crime, proceeds of a crime or contraband will be found. Search warrants must be specific as to what location is to be searched and what item(s) are being searched for. However, there are important exceptions to this general rule which do not require an officer to have a search warrant:
- If a police officer is questioning you and reasonably believes that he may be in danger, he may conduct a ‘pat down’ search on the exterior of your clothing to determine if you have a weapon. Anything the officer discovers as a result may be used against you in a court of law.
- If you are lawfully arrested, an officer may conduct a full search of your person and the immediate area around you as part of the arrest.
- An officer cannot search your home without a search warrant unless he has lawfully arrested you in the home; even then he can only search the immediate area around where you have been arrested.
An even larger set of exceptions to the basic requirement for a search warrant exists when a police officer has lawfully stopped your vehicle. Courts have consistently ruled that the ‘expectation of privacy’ that exists in your home does not exist (to the same extent) in your car. Any items that are ‘in plain view’ in your vehicle are subject to search by an officer with a reasonable suspicion that illegal activity has taken place or is taking place. In addition, a special set of rules exists with regard to the lawful right of the police to search and seize your person if they suspect that you have been driving while intoxicated. For more information regarding DWI and how you can deal with being charged with driving while intoxicated click here: