Getting arrested

Know your rights and how the system works.

There are few things in life as stressful and unsettling as getting arrested. Fortunately, the legal system provides you with certain protections to preserve your right to due process when accused of a crime in California. Knowing those rights, how to exercise them, and what to expect after the arrest can help make your defense attorney’s job simpler and the criminal justice system a little less frightening.

Your basic rights when dealing with the police are:

  • Right against unreasonable search and seizure – the Fourth Amendment protects your person and your property from government search without valid reason. You have a right to privacy. In most cases, the police cannot search you, your home, your car or any other property without first seeking the permission of the court.
  • Right to remain silent – the Fifth Amendment gives you protection against self-incrimination. The police cannot force you to make statements that might be against your own best interests. And, should you choose not to make a statement, that cannot be held against you at trial.
  • Right to an attorney – the Sixth Amendment guarantees you the right to be represented by legal counsel when suspected of a crime. You can have a defense attorney present during questioning by the police, and the courts must provide you with a defense attorney if you cannot afford one.

What to expect from police

According to the FBI, police made more than 1.5 million arrests in California in 2006. So let’s look at what the police are allowed to do before and after the arrest.

An officer can walk up to you on the street and ask questions, including your name. If he develops a reasonable suspicion that you might be a threat – say it’s a high-crime area, and there’s a bulge in your waistband at the back – he can even detain and frisk you. That’s not the same as getting arrested. It is sometimes called a “Terry stop” for the U.S. Supreme Court decision, Terry v. Ohio, that gave officers that authority.

A police officer can stop your car if he develops a reasonable suspicion that you are committing a violation. For example, weaving back and forth and rolling through stop signs would do it. Then, he can ask you anything, including whether you have been drinking. He also can demand to see your identification and proof that you have legal use of the vehicle and valid state permission to drive on public roads.

A police officer can arrest you if he sees you commit a crime. For example, if an officer sees you punch someone, then determines that you had no legal right or permission to do so, he has probable cause, and you are likely getting arrested. This is known as an “on-view arrest” because the officer saw the crime occur. No arrest warrant is necessary.

If you are a suspect in a crime, detectives can come to your house to speak to you, or ask you to come to the station to “clear up a few things.” The Supreme Court ruled in Miranda v. Arizona they must first advise of your right to remain silent and right to an attorney if you are getting arrested. But the court also says they can lie to you during interviews, tell you they have evidence that doesn’t exist, swear that they are only trying to help you, even say they don’t blame you for doing it.

They can ask to search your home or car without obtaining a search warrant. Fine, the law allows them to do that if they get your permission first. Whatever they find, just like anything you say in a voluntary interview, can be used as evidence against you at a trial after getting arrested.

Your rights when being questioned by police

OK, then, what exactly are you allowed to do? In most cases, you can refuse to speak and deny any requests to search without a warrant. The decision is up to you, whether you are getting arrested or not.

On the street, if an officer asks you to stop and speak to him, you can tell the officer you don’t have time to speak to him, then ask if you are free to leave. Do not run. The Supreme Court recently ruled that running gives police reasonable suspicion to detain you, and that can lead to you getting arrested. You are not obligated under California law to give him your name, but if you do, don’t give him a phony name, because that is a crime in California.

In more serious circumstances, like a traffic stop in which the officer asks whether you’ve been drinking, or an interview with detectives, it should become clear that you are suspected of a crime and might be getting arrested, so you should never, for any reason, answer questions. You have the right against self-incrimination. Use it. Just smile politely and ask the patrolman why he’s asking. Tell the detectives you do not wish to make a statement.

Better yet, ask for a defense attorney. That is your right if you are being questioned or getting arrested.

What to expect when getting arrested

Do not become angry or aggressive, or refuse to follow an officer’s directions, especially if his hand is on his weapon. Do not threaten the officer with retaliation, either physical or legal, because that can be construed as a crime and increases the likelihood of getting arrested. Even if you feel he is violating your rights, just follow directions. The rest can be handled later in court.

Exercise your Fourth Amendment rights as well. An officer asks for permission to search your car or home, and you say clearly, “I do not consent to a search.” They will have to go to a magistrate and show probable cause for a warrant. Or, if you are getting arrested, they can search you personally for weapons and contraband, like drugs, as well as the immediate area to keep you from grabbing a weapon. It’s called a “search incident to arrest.”

When police approach you, or you are getting arrested, try to be calm and take mental notes of everything that is happening. Remember what the officer said, and what you said. Ask for the officer’s name, look around, see who else is there, and what they are doing. Take note of the time and date. If you get a chance later, write everything down. That will help your defense attorney do his job if you wind up in court.

A few things will happen after getting arrested. The police will handcuff you as a matter of routine, probably with your hands behind you, and drive you to the county jail. There, you will be photographed, fingerprinted, and possibly given a brief examination by a jail nurse. You will turn over your personal belongings. for which they will give you a receipt, and likely be issued a jumpsuit and slip-on shoes, then be put into a holding cell.

Remember, do not talk to anyone in the jail about getting arrested or the specifics of your case. The guy in the cell with you might seem friendly enough – until he testifies against you. And that phone you are allowed to use? Careful what you say there, as well. Conversations with anyone other than an attorney are not protected, and can be recorded.

California law requires that official charges be filed within 48 hours of getting arrested. Depending on the charges, your bail can range from a few hundred to several thousand dollars. You will be allowed to call a defense attorney and/or bail bondsman, who will charge 10 percent of the bail as his fee. You’ll probably also have to put up some sort of collateral for large bonds.

Within about a month of getting arrested, you will have your first Court Hearing called an arraignment. Your defense attorney will enter a plea for you. From there, the court will set a series of pre-trial conferences, in anticipation of a trial.

The case will end one of three ways after getting arrested: The prosecution drops the charges; your defense attorney arranges a plea bargain, usually for lesser charges; or you go to trial, and the jury issues a verdict.