Criminal Law: Arrest and Evidence FAQ

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  • What's the difference between being arrested and being detained?

  • I've been arrested, when do I get to make my call?

  • After I was arrested, I was allowed to make some calls but I didn't get through. Aren't I allowed more calls?

  • What are Miranda rights?

  • I wasn't read my Miranda rights. Does that mean all charges will be dropped?

  • If I don't want to say anything after being arrested I'm within my rights, correct?

  • I was arrested but the officer didn't have an arrest warrant. What gives?

  • I was asked to come to the police station regarding an incident at a shopping mall. I went, answered their questions and then left. Will this show up on my record as an arrest?

  • Why do some people have to post bond to get out of jail and others don't?

  • My friend has been arrested. Now he's being told he has an arraignment and a preliminary hearing. Aren't these the same thing? When can he get out of jail?

  • Can a police officer search me, my car and my home whenever and wherever he wants?

  • Can you sue the police department for false arrest and wrongful imprisonment?

  • Evidence was taken from my home without a search warrant. Isn't this illegal? Will the case against me be dismissed?

  • Doesn't the Fourth Amendment protect me from being searched?

    Q: What's the difference between being arrested and being detained?

    A: "Arrested" means you have been taken into custody and can't leave. You can be detained for a short period of time if a police officer or other person believes you may be involved in a crime.

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    Q: I've been arrested. When do I get to make my call?

    A: After being "booked," you'll be able to make local phone calls, generally up to three. "Booking" includes your arrest being written into official police records, being fingerprinted and photographed.

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    Q: After I was arrested I was allowed to make some calls, but I didn't get through. Aren't I allowed more calls?

    A: Yes, you're generally allowed to complete calls. While the number of calls allowed may vary from place to place, the average number is three.

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    Q: What are "Miranda rights"?

    A: Your Miranda rights include:
    • You have the right to remain silent
    • Anything you say can and will be used against you in a court of law
    • 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

    Miranda rights do not have to be recited prior to an arrest or to ask routine questions such as your name and address needed to establish your identity. Generally, the police will "read your rights" if you are going to be questioned. If you are questioned outside the presence of your lawyer without providing you with your rights, any answers you give probably cannot be introduced in court as evidence against you.

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    Q: I wasn't read my Miranda rights. Does that mean all charges will be dropped?

    A: If these warnings weren't provided to you before you were questioned, the information you provided may not be used against you. However, this doesn't mean the case will be dropped, only that the authorities will need to proceed with the case, should they choose to, without using the statements you made. If you voluntarily gave information without being questioned, that information may still be used.

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    Q: If I don't want to say anything after being arrested I'm within my rights, correct?

    A: If you've been arrested, you need only say, " I want to speak with an attorney" or " I have nothing to say now." You don't have to say anything after that.

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    Q: I was arrested, but the officer didn't have an arrest warrant. What gives?

    A: A warrant is usually required when you're taken into custody at your home, but not necessary elsewhere. If there is concern that you might flee, destroy evidence or harm someone else, you can be arrested at home even without a warrant.

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    Q: I was asked to come to the police station regarding an incident at a shopping mall. I went, answered their questions and then left. Will this show up on my record as an arrest?

    A: No. Charges were not filed and you were not booked. However, if, at a later date, the police determine that there is cause to file charges, you could still be arrested.

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    Q: Why do some people have to post bond to get out of jail and others don't?

    A: A judge will determine the amount, if any, of bail that needs to be posted, based on:
    • The type and seriousness of the charges
    • Any prior failures to appear
    • Previous criminal record
    • Connections to the community
    • The probability that you'll appear in court

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    Q: My friend has been arrested. Now he's being told he has an arraignment and a preliminary hearing. Aren't these the same thing? When can he get out of jail?

    A: No, they are not the same.

    At the arraignment, your friend will appear before a judge who will tell him, officially, of the charges. At the arraignment, bail will be set, or possibly reduced if previously established. Your friend may be released on his own recognizance. If he's in need of an attorney and meets the guidelines for court appointed representation, a public defender will be assigned. If the charge is a misdemeanor, some courts allow a plea to be entered at this time.

    At a preliminary hearing, the district attorney must establish for the judge that there are reasonable grounds (evidence) to proceed with the charges and bring your friend to trial.

    Getting released from jail will depend on:

    • The charges
    • If there is bail
    • Whether or not the defendant can meet bail

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    Q: Can a police officer search me, my car, my home whenever and wherever he wants?

    A: A search is always possible with the permission of the individual or with a search warrant. With a search warrant, the office can proceed without the permission of the individual. But you can ask to see the warrant prior to the start of the search. Before a search warrant may be issued, there must be a showing of probable cause.

    Body Searches

    If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods.

    Car searches

    Police can search your car and trunk without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason - such as a broken taillight - they can take any illegal goods in plain sight.

    Home searches

    Certain emergency circumstances such as the potential destruction of evidence will allow an officer to search your home without your consent. If you're arrested at your home without a search warrant, only the area where you are located can be searched. Anything illegal in plain view can be taken.

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    Q: Can you sue the police department for false arrest and wrongful imprisonment?

    A: An officer who detains an individual without just cause, depriving an individual of his or her freedom without sufficient reason or authority, he can potentially be sued along with the police department.

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    Q: Evidence was illegally taken from my home without a search warrant. Isn't this illegal? Will the case against me be dismissed?

    A: Possibly. If a judge decides the evidence was gathered improperly, it may not be allowed into evidence. However, the district attorney or prosecutor may still be able to prosecute the case even without the evidence.

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    Q: Doesn't the Fourth Amendment protect me from being searched?

    A: No. The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states, "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." To determine what might be unreasonable, a "legitimate expectation of privacy" must be established.

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