See also: How to survive police encounters

Based on information and advice provided by the State Bar of California. When in doubt, find yourself a real lawyer.

What is an arrest?

  • When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested however, you still could be detained or held for questioning for a short time if the police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a recent burglary site. Storekeepers also can detain you if they suspect you have stolen something.

    Whether you are arrested or detained, you do not have to answer any questions, period. If you're pulled over, however, a police officer may require that you produce your driver's license.

What rights do I have?

  • Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested.

    Before the law enforcement officer questions you, he or she should tell you that:

    • You have the right to remain silent.
    • Anything you say may be used against you.
    • You have a right to have a lawyer present while you are questioned.
    • If you cannot afford a lawyer, one will be appointed for you.

These are your "Miranda" rights that were enumerated by the US Supreme Court in Miranda v. Arizona. If you are not given these warnings before the police interview you (contrary to popular belief, the police don't have to "Mirandize" you upon arrest), your lawyer can ask that any statements you made to the police not to be used against you in court. However, this does not necessarily mean that your case will be dismissed as the police may have gathered other evidence that is still admissible in court. Also, this does not apply if you volunteer information without being questioned by the police.

Once I'm told my rights, can I be questioned?

  • You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to questioning, then change your mind, the questioning must stop as soon as you say that you want a lawyer. if questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different.

    You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver's license will be suspended and refusal will be used against you in court.

    Once you have been booked, (meaning your arrest has been written into official police records, and you have been fingerprinted and photographed) you have a right to make and complete three free telephone calls within the local dialing area. Any additional calls made from jail must be collect calls.

When should I see a lawyer?

  • If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on bail process.

How can I find a lawyer?

  • If you can afford a lawyer but do not know one, ask a friend, co-worker, employer or business associate to recommend one. Or, call a State bar-certified lawyer referral service in your area. Look in the Yellow Pages of your telephone directory listings under "Attorney Referral Service," or contact the local bar association. For an online list of such services, visit the State bar's Web site.

    State Bar-certified lawyer referral services, which must meet minimum standards established by the California Supreme Court, can assist you in finding the right lawyer for your particular problem. Most of these services offer half-hour consultations for a modest fee.

    Attorneys who are members of the State Bar-certified lawyer referral services must carry insurance, agree to fee arbitration for fee disputes, meet certain standards of experience and be State Bar members in good standing.

    Lawyer referral service fees do vary. Don't forget to ask whether there is a fee for the referral or initial consultation. And if you decide to hire a lawyer, make sure you understand what you will be paying for, how much it will cost and when you will be expected to pay your bill.

    If you belong to a legal insurance plan as an individual or through a company, labor or credit union, the plan may provide a lawyer to represent you. Ask for a lawyer who is qualified in criminal law.

What If I Cannot Afford A Lawyer?

  • The U.S Constitution guarantees everyone charged with a crime the right to legal counsel. A public defender, or other court-appointed attorney, will be appointed for you if you cannot afford to hire an attorney on your own.

    Public defenders are experienced trial attorneys who specialize in criminal law. They do not work for prosecutors or the police; they are there to represent your best interests.

Who Can Arrest Me?

  • All law enforcement officers (such as police officers, county sheriff officers, investigators in a district attorney's office or an attorney general's office and highway patrol officers) can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.

    They can arrest you even if they do not have an arrest warrant - if they have probable cause or good reason to believe you committed a felony. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year. A misdemeanor is usually punishable with a fine or short jail term.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.

    If you commit an infraction, they may ask you to sign a citation or notice instead of taking you into custody. This minor offense, such as moving violation, where the punishment usually is fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.

Can Someone Other Than A Law Enforcement Officer Arrest Me?

  • Any person, such as a private security guard, can make a citizen's arrest if he or she sees a misdemeanor being attempted or committed. He or she also can make a legal arrest for a felony as long as it actually was committed, and he or she has good reason to believe you did it. He or she must take you to a police officer or judge who is required by law to take you into custody.
  • what about deputized private security ala conway ranch? Daubert

When Is An Arrest Warrant Used?

  • Usually, a warrant is required before you can be taken into custody from within your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone's life or seriously damaging property.

    An arrest warrant must be signed by a magistrate or judge, who must have a good reason to believe that you committed a crime.

    Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.

    Before entering your home, a law enforcement officer must knock, identify him or herself and tell you that you're going to be arrested, unless it's a drug warrant. Then, you might expect a no-announce, no-knock tacticool entry in the middle of the night. If you refuse to open the door - or if there' s another good reason - the officer can break in through a door or window.

    If the police have an arrest warrant, you should be allowed to see it. If they don't have the warrant with them, you should be allowed to see it as soon as practical.

    The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.

    Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.

When Can I Be Released?

  • If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not be recorded as an arrest. Your paperwork will probably include a court date, which is the date and time of your first court appearance, almost always an arraignment (see below), the most important part is SHOWING UP. If you don't show up to your arraignment, a possible warrant will go out for your arrest and you may be charged with contempt for court. You can, however, change your court date by calling the courthouse clerks' office.

What Is Bail And How Is It Set?

Bail is simply a sum of money or some kind of property to ensure that you appear in court on your court date, it will the refunded to you at court if you show up. Usually jails have a Bail Schedule (this varies from state to state) for common crimes that you can just pay and go, for more serious (think felonies) or unusual offenses, it will be decided by a judge. The constitution protects you from excessive bail (although some judges purposefully set an impossibly high bail bond to keep you in jail until the trial is over, this probably isn't constitutional but it happens), and prevents the state from making a profit off you. If you cannot afford bail, you can request that it be lowered, or resort to a bail bond company. They pay the bail to get you out, you pay them for the service.

Who Maintains Arrest Records and What do They Include?

What Happens At An Arraignment?

An arraignment is just a fancy word for a hearing in court in front of a judge at which you will be read your rights and be read exactly what you are being charged with, you will also be required to enter a plea.

What Happens At A Preliminary Hearing?

A preliminary hearing, also known as a pretrial conference is what happens next if you plead not guilty at the arraignment. This is where the judge weighs the evidence against you and decide if a trial is necessary, you can also change your plea. REMEMBER - IF YOU ARE CHARGED WITH A CRIME, IT IS NEVER A GOOD IDEA TO REPRESENT YOURSELF IN COURT, IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED FOR YOU.

When Can An Officer Conduct A Search?

In general, when you give verbal permission or they have a search warrant. There are, however, exceptions to this, so don't get too saucy in the absence of either of the above. If you don't give permission to the search and it turns out their reason for searching you is invalid, what they find can be thrown out as evidence as well as any other evidence they collected based on the knowledge gained from the illegal search, assuming they probably wouldn't have found it without the help they got. Don't expect to have any illegal items returned to you, though.

When Can An Officer Search You, Your Home Or Your Car Without A Warrant?

An officer can perform a Terry frisk to check for weapons if they think you're up to no good. Also, if you're arrested, officers can search you and your immediate surroundings without a warrant. If an officer sees some evidence of illegal activity in your house or car, they can search them without a warrant under the plain view exception to the warrant requirement.

If you consent to a search, it is automatically legal. Don't ever do this if you value your privacy and your liberty. If they're asking, they probably don't have probable cause and can not legally do the search, anyway.


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2008-07-31 06:42:12   Something I've never quite understood is a citizen's arrest. If I see someone doing something illegal, I can arrest them? Is this valid in Yolo County? What are the implications? —ElleWeber

  • You can arrest somebody if you observe them committing a felony. I'm not sure about misdemeanors. It's important to note, however, that you don't get the same legal protections as police officers when performing a citizen's arrest. So, if you injure the presumed thug or if it turns out you wrongfully arrested him/her, you could potentially get sued later (or maybe an assault charge, etc).
  • California Penal Code 837:

    A private person may arrest another:

In plain English, you can arrest anyone for committing any crime committed in your presence (including felonies, misdemeanors, and infractions, see california penal code 15 for the definition of "public offense"). You can also arrest anyone for committing a felony if a "reasonable person" would believe that the arrestee committed it.

All that being said, it is generally a bad idea to do a citizen's arrest. As mentioned above, there are liability issues, so you had better be pretty certain you do it correctly. Also, it is not illegal to resist a valid citizen's arrest. A citizen's arrest should only be done if the crime is a big one, you saw it being committed, the criminal is fleeing, and you can safely restrain the criminal. It probably isn't worth your trouble otherwise. —WilliamLewis