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What to Do if You Are Arrested |
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If you are arrested, the decision whether to answer any questions is entirely your own. However, you should give this matter careful and thoughtful consideration because any statement you make will be used as evidence against you in court. If you are asked to sign a document for any reason (for example, as an inducement or by threat, coercion or force), immediately advise your attorney and the senior police official in charge. Before you say or sign anything that result in waiver of a constitutional right, weigh the decision very carefully.
ARE YOU UNDER ARREST? You are under arrest once a law enforcement officer takes you into custody or otherwise deprives you of your freedom of movement in any way. You may even be under arrest despite the fact no one has used the word "arrest" or any other comparable word. The simple fact that you have been deprived of your freedom of movement in some significant manner may indicate you are under arrest. MAY A LAW ENFORCEMENT OFFICER DETAIN YOU WITHOUT ARRESTING YOU? If a police officer has reasonable suspicion to believe you are involved in criminal activity, he may detain you, ask you to identify yourself and explain your presence at a particular location. If the officer has reasonable suspicion to believe you are armed or may be dangerous, he may conduct a limited pat down of your outer garments search for the purpose of detecting weapons. If, pursuant to this 'frisk', the officer believes you are carrying a weapon, he may remove the suspicious object for the purpose of protecting himself. However, unless you are formally arrested, this frisk must be limited to a search for illegal weapons. The officer may ask questions in order to complete a field interrogation card. You have a constitutional right to not answer these questions. However, you do not have a right to refuse to identify yourself. A refusal to provide this information may result in your arrest. At the conclusion of this temporary detention, the officer must either arrest or release you. If you are in a retail establishment, where goods are on display for sale, merchants or their employees may detain you on the premises for a reasonable amount of time for questioning if they suspect you have shoplifted. Under these circumstances, a police officer may be called to arrest you even though he did not witness the alleged offense. MAY YOU BE ARRESTED WITHOUT A WARRANT? A police officer may arrest you, at any time, if he has a confirmed warrant for your arrest or knows there is an active warrant for your arrest. If the officer does not have the warrant in his possession at the time of arrest, he must show it to you as soon as possible. In any event, he must inform you of the offense with which you will be charged. (An arrest warrant is not a search warrant and should not be confused with a search warrant.) An officer may arrest you without a warrant only in certain limited circumstances in Texas. An officer may arrest anyone who commits an offense in his or her presence or within his or her view. An officer may arrest a person if informed by a credible person that a felony has been committed and that the offender is about to escape, so that there is no time to get a warrant. A private individual may arrest a person if a felony is committed in his or her presence or within his or her view. (However, it is always better to contact the police, however, and report the crime.) MAY AN OFFICER USE FORCE IN MAKING AN ARREST? An officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. The legality of the arrest has nothing to do with whether or not you are ultimately convicted. As long as the officer has probable cause to arrest at that time, you cannot later complain the arrest was unlawful merely because you are found not guilty. Resisting arrest is a misdemeanor unless your actions cause serious bodily injury to the officer. Obstructing or interfering with an officer in the performance of their duty is also a misdemeanor. You could be convicted of either of these crimes, even if you are subsequently found not guilty of the crime for which you were arrested. If you believe your rights are being violated, voice your objections in a clear, calm manner. Make it a point to remember exactly what the police officer did and said. Then, advise your attorney at the earliest possible time. You may object to the officer's arrest or search procedures but always do so without physically resisting the officer's actions. MAY YOU BE SEARCHED? If the police arrive at your home with a search warrant, they may search only the area authorized in the warrant itself. You are entitled to see and read the search warrant. Any extension of the search beyond the provisions of the warrant is unlawful. Your remedy for an unlawful search lies with the courts. The officers' efforts should not be resisted with force. If you are arrested in your home, the officer may conduct a limited search of the immediate area where you are arrested without a search warrant. They also may check the rest of the house for any hidden accomplices. They may seize any contraband, stolen property, and/or evidence of a crime that they discover in plain view in any portion of the house where the officers have a right to be. If you are arrested while driving your automobile, the officer may make a limited search of your car at that time for the purpose of discovering weapons, which might be used against him. He may not make a general search of your automobile unless there is independent probable cause that the vehicle contains evidence of a crime or contraband. Your automobile may also be impounded and inventoried, if there is no qualified licensed driver to take care of it. If an officer is preparing to impound your car, tell him you have a relative or friend who will come and get it or advise him that you want someone of your own choosing to tow your car. The law of search and seizure is very complex. In general, you should never resist a search with force, but you need not consent to an illegal search. If you do object to a particular search, advise the officer of your refusal to consent and of your objections to the search. Ask for the officer's name and badge number. WHAT HAPPENS AFTER THE ARREST? Normally, you will be taken to a police station and advised as to the charges against you. However, these charges may be changed later by the district attorney's office or a grand jury, in the case of a felony offense. You may also be required to participate in a lineup, prepare a sample of your penmanship, speak phrases associated with the crime with which you are charged, donate certain wearing apparel, and/or give a sample of your hair. You should request to have your attorney present during any of these procedures. Once the booking procedure is complete, you must be taken before a magistrate within a reasonable amount of time. The magistrate will inform you of the of the following:
A police officer must advise you of your rights prior to any questioning. These include, your right to remain silent; your right to stop any questioning at any time; your right to consult with an attorney before answering any questions and have that attorney present while answering any questions; and your right to have an attorney provided for you if you cannot afford to hire your own. Once the officer reads you these rights, he will then ask if you will give up these rights. You are well within your rights under the law to say "no". WHAT HAPPENS TO YOUR PERSONAL PROPERTY WHILE YOU ARE IN JAIL? During booking, the police may take your money and property for safekeeping. They should carefully inventory this and give you a copy of the inventory. At the time of your release, or at the conclusion of your case, all property not seized as evidence in the case will be returned to you. You will be given an opportunity to sign the property list. Be sure the list includes all the items taken from you. HOW DO YOU GET OUT OF JAIL? A magistrate may release you on a personal recognizance (your promise to appear in court when directed) or on bail. Bail involves posting the bond amount in the form of cash or a surety bond. Surety bonds are usually available at a premium or a percent of the amount of the bail. When you are brought before the magistrate, you may request that the magistrate lower your bail in consideration of your ties in the community, financial resources, employment record, or any other factors. These may include your past criminal record and your past history of failure to appear in court when scheduled. Upon your arrival at the jail or shortly thereafter, you will be afforded the opportunity to contact an attorney. McCreary & Stockford provides jail release service, and, as an additional incentive, if one of our lawyers secures your release from jail, you may receive half-hour consultation at NO COST. WHAT ARE YOUR RIGHTS AFTER THE ARREST? You have a right to know what you will be charged with. You have a right to know the identity of the arresting officers. You have the right to communicate by telephone with your attorney or family or friends or bondsman as soon after you are brought to the police station as practical (this is usually after booking is complete). SHOULD YOU GET A LAWYER? YES! You will be facing the full force of the vast resources of the State of Texas as they prosecute YOU. You also have valuable rights that must be protected. If you cannot afford an attorney, the court may appoint an attorney to represent you if you qualify as an insolvent (unable to pay debts). This right exists for any offense that could result in imprisonment. At McCreary & Stockford, we have a proven track record of outstanding representation in criminal cases. We also provide payment plans for those choosing to finance their legal services. |