Criminal Law

Criminal Law: Arrest and Evidence FAQ

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.

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

  • A:A search is always possible with the permission or "consent"of the individual or with a search warrant. With a search warrant, the officer 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, that is, the police have a good reason to believe that they'll find evidence of crime at the place they want to search.

    Body Searches

    If you're arrested, an officer can search you, without a warrant, for weapons, evidence of a crime, 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're located can be searched. Anything illegal in plain view can be taken or "seized."

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

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

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

  • A:No. The Fourth Amendment to the US Constitution guarantees the right of people to be free from unreasonable searches and violations of privacy. It 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.

Q: Evidence was 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 be "excluded," that is, it can't be used as evidence against you at trial. However, the district attorney or prosecutor may have other evidence against you that she can use at trial, so the case might not be dismissed.

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 so long as the police have probable cause to believe that you committed or are about to commit a crime. However, if there's a concern that you might flee, destroy evidence, or harm someone else, you can be arrested at home even without a warrant.

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's cause to file charges, you could still be arrested.

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

  • A:If you weren't advised of your Miranda rights before you were questioned, the information you provided to the police can't be used against you. However, this doesn't mean the case will be dropped, because there may be other evidence against you that's good enough to get a conviction.

Keep in mind, though,if you voluntarily give information to the police without being questioned, or if you voluntarily start talking to the police after you were given the Miranda warnings, anything you say may be used against you at trial.

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. The police are required to stop questioning you immediately.

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.

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're not the same.

    At the arraignment, your friend will appear before a judge who will tell him, officially, of the charges filed against him. Also, the judge may set bail. 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 or prosecutor 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 seriousness of the charges
    • If there's bail
    • Whether or not the defendant can meet bail

Q: What are "Miranda rights?"

  • A:Your Miranda rightsinclude:
    • 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 can't afford a lawyer, one will be appointed for you

    Miranda rights don't have to be recited prior to an arrest or to ask routine questions needed to establish your identity, such as your name and address. Generally, the police will "read your rights" if you're going to be questioned. If you're questioned without your lawyer being present and you haven't been read your rights,anything you say to the police likely can't be used as evidence against you in court.

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

  • A:"Arrested" means you have been taken into custody and can't leave. For example, if you've been handcuffed and placed in the back of a police cruiser, you've probably been arrested, even though the officer didn't say, "You're under arrest." This is because you can't leave the car without getting into more trouble.

You can be "detained" for a short period of time if a police officer believes you were involved in a crime or are about to commit a crime. For example, if you're standing on a street corner late at night in an area where a robbery had just occurred, a police officer may stop and ask you questions about why you're in the area, etc. This is not an arrest.

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

  • A:In determining the amount, if any, of bail that needs to be posted, a judge will consider:
    • 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

    Sometimes there's no bail, but rather the accused is set free on his "own recognizance," or "O.R." All he has to do is promise to show up at court for trial. There's no money or collateral involved.

    Courts look at a variety of factors when deciding to release a defendant O.R., the most important factor is the likelihood that the defendant will flee to avoid trial. The judge may look at:

    • Whether the defendant's family lives in the area and how long the defendant has lived there
    • His past criminal record
    • Whether he has a job in the area
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