Arrest

The Merriam-Webster Dictionary defines arrest as “to take or keep in custody by authority of law.”

For most individuals, this is a highly stressful and challenging experience, affecting them mentally, emotionally, and physically.

In many cases, an arrest follows an investigation, which could take weeks, months, or even years to complete.

An arrest typically occurs under one of the following conditions:

Probable Cause: Law enforcement has enough evidence to reasonably believe a person has committed a crime. This is generally understood as a situation where it is more likely than not that the suspect committed the crime.

Arrest Warrant: A judge or magistrate issues an arrest warrant after reviewing evidence and determining that probable cause exists. The warrant provides law enforcement with the legal authority to arrest the suspect.

1. Exigent Circumstances: Law enforcement reasonably believes that the suspect is about to commit a crime or might escape.
2. Witnessing a crime consider using “Direct Observation: Law enforcement witnesses the suspect committing a crime.

STEPS of the ARREST PROCESS

Once one of the conditions of arrest have been met, law enforcement will conduct the following steps: 

1. Law enforcement informs the accused of their intent
2. The accused will (likely) be handcuffed
3. The accused will be told they are under arrest
4. The accused will (likely) be placed in a law enforcement vehicle and transported
5. Miranda rights are given when the accused is in custody and before interrogation begins

DETENTION

It is important to note that a person can be detained without being arrested. 

Detained means an individual is being held while police investigate a crime or offense. While detention is temporary, the individual is NOT permitted to leave. During detention, law enforcement will ask questions and may conduct a search. In most cases, there is no specific time limit for detention; however, a person can only be held for the duration of the investigation.

UNDERSTANDING YOUR RIGHTS

The actual arrest can be a highly traumatic and embarrassing experience. Law enforcement may take an individual into custody in several ways, such as arriving in force at a residence, place of business, or a public location.  In some cases, arrests occur in front of family, friends, or coworkers, which can be distressing. Additionally, the accused may be subjected to a ‘perp walk,’ where cameras and reporters are present, adding to the public exposure.

During an arrest, comply with law enforcement’s instructions. Do not resist, fight, or flee. If there is discomfort or pain, calmly inform the officer. Cooperation generally makes the process easier, but keep in mind that officers are also focused on their personal safety.

The United States Constitution, along with state law, provides the accused with certain fundamental rights, including:

1. The right to remain silent
2. the right to refuse consent to a search*
3. Protection against excessive force
4. The right to an attorney

*Law enforcement may still be able to obtain a search warrant and search your person or vehicle; however, refusal may provide grounds to exclude the search in court.

Miranda rights must be read to the accused when in custody or being interrogated. There has been significant legal debate about the permissibility of information obtained during questioning prior to the reading of Miranda Rights. Regardless of whether rights are read, the accused should assume that anything said can be used against them.

Miranda rights read as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

RIGHT TO LEGAL REPRESENTATION

It is essential to retain an attorney as soon as an arrest is imminent. If the arrest occurs before retaining an attorney, immediately inform law enforcement of the desire to obtain an attorney and refrain from answering any additional questions.

Retaining an attorney before an arrest can help make the process smoother. Law enforcement can only question the accused in the presence of their attorney. In many cases, the attorney will coordinate with law enforcement to arrange a surrender at the appropriate time and place, helping to minimize the uncertainties of the arrest.

THE RIGHT TO REMAIN SILENT

If arrested, the individual is only required to provide their name, address, and basic identifying information. They should inform law enforcement that they want an attorney, and once this is done, their legal right is invoked, preventing further questioning.

This will be covered in greater detail in the Law Enforcement section, but law enforcement personnel are trained in various interrogation techniques. Each method can be effective, which makes the right to remain silent and the right to an attorney crucial.

An arrest is just the beginning of the process—it does not equate to guilt. Many steps remain before a determination of innocence or guilt is made.