Arrest FAQs

You may think that an arrest involves handcuffs and a reading of Miranda rights. Reality is a bit more complicated. Sometimes the officer may announce that the suspect is under arrest, sometimes there may be handcuffs, but under Constitutional law, an arrest does not require these things to become an arrest. An arrest occurs when a person no longer reasonably expects that he or she is free to leave.

That may seem like a subjective call, but the law defines it under a “reasonable person” standard. In other words, if a reasonable person would not believe he or she is free to leave under the circumstances, it is an arrest. Of course, a person could ask the officer, “Am I free to leave?” but that rarely happens. (I would advise that if you believe you are being questioned too long by the police that you do politely ask this question.) There are other factors a reviewing court may consider when determining whether an arrest took place. Those factors may include things like how many officers were involved, if force was used by the officers, whether the officers physically handled the person being questioned, and the length of time the person was questioned considering what would be reasonable for the investigation.

Under the law, an officer may detain a person for a brief period of time, which is no longer than necessary to question the person. Furthermore, the detention must be for a reason; an officer can’t just detain and question a person without cause. If the detention takes longer than is necessary, it evolves into an arrest. Sounds confusing and it can be, but the nuances are important because the difference between a detention and an arrest implicate different Constitutional rights.

There is an important, legal difference between a "detention" and an arrest. A "detention" occurs when a police officer stops someone because they have an "articulable" or definable suspicion that a crime has occurred. The person can't leave when he's detained, but the detention must be of a short duration and is limited in its scope. A typical detention occurs where someone is stopped for a traffic violation. The officer may ask a few questions to identify the person and his passengers and can hold them there to find out if there really is a violation. But he can't stop someone as an excuse to search the car or the people inside.

But, if a person is not allowed to leave the scene for an extended period of time, the person may be considered to be "under arrest," even though those "magic" words are never used. A good example of an arrest versus a detention is when a person is ordered by the police to sit on the curb while the police investigate. Even though the person is not handcuffed, he or she would not reasonably believe it is okay to leave. When a person is handcuffed, or locked in the back of a police car, or is otherwise kept from leaving, the person will ordinarily be considered to be "under arrest."

Once a person is under arrest, the officer must read the Miranda rights to the arrestee before the officer can question the arrestee. These rights inform the person under arrest that he or she does not have to say anything to the police, and anything the suspect does say may be used against him or her, and that the suspect has the right to an attorney. You might see why the distinction between a detention and an arrest becomes so important. When the police detain someone, they don’t read the Miranda rights unless and until the detention turns into an arrest.

Consider this scenario: The police are investigating a crime, they stop Mr. Smith to question him about the crime. The questioning takes over 20 minutes and goes beyond just a cursory inquiry. Mr. Smith has reason to believe he cannot walk away. To one of the questions, Mr. Smith makes a statement that implicates him in the crime the police are investigating. They then put Mr. Smith under arrest for the crime and read him his Miranda rights. This may be a problem for the prosecution because it can be argued that Mr. Smith’s detention was actually an arrest and the incriminating statement he made to the cops was unlawfully solicited since the police had not yet read Mr. Smith his Miranda rights. This presents an opportunity for Mr. Smith’s criminal defense attorney to argue that because his client’s rights were violated, the statement and everything that flowed from it (i.e., Mr. Smith’s arrest) was unlawful and the charge or charges must be dismissed.

You can refuse the police permission to conduct a search. Remember that the police officer wants to search for evidence of criminal activity, and the fact that the officer is asking means that the officer thinks he or she will find some. You are entitled to say "No." If the police officer has the legal authority to perform the search (a printed search warrant signed by a judge), the officer will do so whether or not you agree. However, if the officer does not have the legal authority to perform a search and you agree to let him search, you cannot complain about it later, because you have given the officer the right to search. If however, you are placed under arrest, the officer has a legal right to make a limited search.

The same applies for a traffic stop. Many times the officer will try to get your permission to search. The officer has nothing to lose by asking. Often, the officer asks in a way that makes it seem like you don't have any choice. But you do. If you give the police officer permission, he or she can perform the search even if the officer otherwise had no legal authority to do so. Most people don't want the police to think they have something to hide, even if they really do! The lesson is: Don't say yes. Say "no". Deny permission. Even if the officer goes ahead, you may claim lack of consent later. And your refusal to submit to the search cannot be used against you.

The police have no duty to formally announce the arrest when it occurs, or to read a suspect his "Miranda" rights. Typically, at some point the police will inform a suspect that he has been arrested. However, many defendants never receive their "Miranda Rights". These rights only need to be disclosed when the police want to question someone who is already under arrest, either at the side of the road, in the police car, or at the station or jail.

In some cases, a warrantless arrest can be made for felony offenses based on witness statements. However, it is not enough to arrest someone just because a witness said, “I saw Joe Blow do it.” There needs to be supporting evidence for the arrest. Otherwise, a court-ordered arrest warrant must be issued. Of course, if the officer personally witnesses the crime, there is no need for a warrant and the officer can legally make the arrest.

If the crime is a misdemeanor offense, an officer cannot arrest a person based on a witness statement, the officer must witness the crime or have an arrest warrant.

The police have the authority to perform a search of a suspect and his or her immediate surroundings, "incident" to the arrest of the suspect. If the police arrest a person who was driving a car, they ordinarily get the authority to search the entire passenger compartment of the car - and will usually also be able to search passengers for weapons. If the car is impounded, the police may perform an "inventory search" of the entire car, including the contents of the trunk.

If the arrest occurs in a structure, like as home or office, the police can only search the person and his or her surroundings that are under the arrestee’s immediate control. This is allowed under the law so that the police cam protect themselves in case the arrestee has a weapon. Officers can also seize evidence that is in plain sight. Otherwise, any additional evidence the police seek after an arrest must be pursuant to a court-ordered search warrant.

If you believe your Constitutional rights were violated during a detention or an arrest, contact Orange County criminal defense attorney William Weinberg at (949) 474-8008 or by email at bill@williamweinberg.com. Mr. Weinberg can review the facts of your case and provide you with a free evaluation of your options.