Act After Getting Arrested

Knowing how to handle getting arrested will minimize the legal penalties that follow such an arrest. Additionally, knowing your rights will help you get the desired outcome in your case. If you believe you are being wrongfully arrested, do not resist. Doing so will only harm you and possibly the police officer arresting you. Stay as calm as possible and call a lawyer after you have been taken to jail.

Steps

Knowing What Happens During an Arrest

  1. Decide whether the police officer has probable cause to arrest. A police officer can arrest someone if the officer personally saw the person commit a crime or if the police officer has “probable cause” to arrest even if the officer did not personally see a crime being committed. [1]
    • For example, if someone is driving a car erratically and breaking traffic laws, and the police officer administers a breathalyzer and determines that the person has been drinking, the officer may arrest that individual. This is because the police officer has seen the individual commit the “crime” of driving erratically and breaking traffic laws.
    • Probable cause means that the officer has a “reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime. [2] For example, if a police officer gets a call that a robbery has just occurred down the street from where he or she is and the suspect is a white male wearing a blue shirt and orange pants, and 5 minutes later the officer sees someone fitting that description, the officer would have probable cause to arrest based on the description match and the proximity of the suspect to where the crime had just been committed. [1]
  2. Determine whether a police officer is legally searching someone’s house, car or other personal items. Officers cannot search someone’s house or car before arrest without seeing something illegal or having probable cause to perform the search. They can only search if they see something illegal in “plain view” or if they have probable cause. [1]
    • For example, if a police officer pulls someone over and sees drugs in plain view in the vehicle, the officer can search the rest of the car based on seeing the illegal drugs.
    • Similarly, if a police officer knocks on someone’s door to discuss a tip that they got from a neighbor that the individual was growing marijuana, the officer probably has probable cause to search the house, depending on the details provided by the neighbor. [1]
    • Keep in mind that you never have to consent to a search of your home or car: if a police officer asks for your permission to search, they do not have probable cause (if they did, they would not ask for permission), you do not have to give your consent to the officer, and not consenting is not probable cause. [1]
  3. Learn what rights you have after getting arrested. If you are arrested, the police can do the following things simply because they have arrested you: [3]
    • Police are permitted to search your body and clothing.
    • Police may search your belongings.
    • Police may search your vehicle if you were in it at the time they stopped you.
    • Police may ask you to perform a test, such as walking a straight line.
    • Police may put you in a lineup with other suspects.
    • Police may fingerprint you.
    • Police may ask you questions (although, as explained in detail below, you do not have to answer and you can remain silent).
    • Police may ask you to provide a sample of your handwriting.
    • Police may ask you to write or sign a statement.
    • Police may ask you for a sample of your breath, blood, semen, or hair. If you refuse to provide a sample, they may request an order from a judge to require you to give the samples.
    • Police may ask for consent to search your property that is not on or near you at the time of the arrest. If you decline consent, they must obtain a search warrant from a judge.
    • Police may ask you to submit to a drug test. If you decline to do so, they may get an order from a judge that requires you to do so under certain circumstances.
    • If you decline to give samples, take a drug test, or allow a search, make sure that you understand that you can be forced to provide these things if the police can establish probable cause for needing any of these things. So in refusing, you may really only be delaying until the police officers can get into contact with a judge. However, if there is absolutely no reason that your were arrested, the judge may find that the police did not have probable cause to arrest you, and therefore you might not have take the drug test, provide the samples or let the police search your property. [3]
  4. Ensure that your rights are not violated during police questioning. Police are required to read you what are known as your “Miranda rights” before they question you after an arrest. [4] Your Miranda right or Miranda warning informs you of your right to remain silent when you are being questioned after you have been arrested. [4] If you choose to speak to officers and respond to questions after you have been given the Miranda warning, anything you say “can and will be used against you.” [4]
    • Your right to remain silent is a protection that is guaranteed by the Fifth Amendment of the Constitution: it is part of the privilege against self-incrimination. If police interrogate you without giving you the Miranda warning, the statements you make cannot be used as evidence against you at trial. [4]
    • However, even after reading you your Miranda rights, the police can continue to interact with you, and any voluntary statements you make to them can be used at your trial.
    • Even though they are allowed to talk to you, the police cannot threaten you or force you in any other way to talk to them or give them any sort of statement. If this happens to you, tell your attorney immediately. [3]
    • If you feel that your rights have been violated in any way, tell your attorney as soon as you obtain one. Do not resist or fight the police, because there is nothing you can do at the moment and they have all the power. You should not risk getting hurt. [1]

Exercising Your Rights During and After Getting Arrested

  1. Be polite. Even if you believe that you are being wrongfully arrested, you should be polite to the police officers and make sure that you do not escalate the situation. Even if it seems unfair, acting in an angry or threatening way could cause the situation to turn violent, which could be extremely dangerous for you.
    • If the police were wrong to arrest you or treated you in an illegal way during or after the arrest, you can sue them for damages after being released or file criminal charges against them.
    • Police officers are usually armed, so it is especially important to keep your cool, resisting is not worth the possible injuries.
  2. Get a lawyer. After you are arrested, you have the right to make a phone call. You should contact a lawyer for assistance or call a trusted friend or family member and have them assist you in getting an attorney. If you cannot afford a lawyer, you still have the right to have a lawyer represent you in a criminal case. The judge will appoint you a public defender, or someone who will defend you without being paid by you. [1]
    • Do not speak with the police without your lawyer present.
    • When your lawyer arrives at jail, he or she will give you advice on how to proceed.
    • All conversations with your lawyer are confidential, so you can be completely honest with your lawyer. [3]
    • Your lawyer cannot share any information that you tell them with outside parties.
  3. Request bond from the judge assigned to your case. At your first hearing after being arrested (sometimes called an “arraignment”) you or your lawyer should ask for bail to be set. The judge will set conditions on bail, such as an amount of money that must be posted.
    • The amount of the bond is set to a number that he or she feels will guarantee that you show up for trial.
    • If you cannot afford the bond amount set by the judge, friends and family may help you. Otherwise, contact a bail bondsman. A bail bondsman is someone who lends money to people in order to enable them to make bond.
    • Instead of setting bail, the judge may decide to simply let you sign a promise to appear in court.
    • You should be released from police detention after posting bond or signing a promise to appear in court. However, keep in mind that the decision to grant or deny bail is completely up to the judge, and if the judge denies bail, there is nothing you can do. [1]
  4. Figure out your next steps. After being arrested, you can be charged with a crime, or let go without any charges being filed. If you are charged, you and your attorney will need to discuss your next steps and possibly prepare for trial. If no charges were filed against you, make sure that you are not required to appear in court again or do anything else, such as complete community service or a pretrial diversion program.
    • For more information on how to prove your innocence when you have been accused of a crime, visit wikiHow’s guide here.

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Sources and Citations

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Understanding Criminal Law, Dressler (6th Edition)
  2. ↑ Spinelli v. United States
  3. ↑ 3.0 3.1 3.2 3.3 Criminal Law and Its Processes: Cases and Materials (Aspen Casebook Series), 9th Edition, by Sanford H. Kadish & Stephen J. Schulhofer
  4. ↑ 4.0 4.1 4.2 4.3 Miranda v. Arizona

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