WHAT HAPPENS WHEN YOU GET ARRESTED

Getting arrested can be a frightening experience, especially with everything that can follow — being taken by police car to a detention center, getting booked, and likely being put in jail.  Because getting arrested is a trying time, if you’re arrested you may be tempted to say or do anything to get out of the situation.  But if you’re ever arrested, it is important under these difficult circumstances to think clearly and try to protect your rights.  Here are some important things to know if you are arrested as well as key steps to protect your rights.

What Is An Arrest?

Just because you are stopped by the police for something does not mean you are under arrest. An arrest generally refers to the point at which you are taken into custody, meaning you are unable to freely leave the scene.  Police usually don’t need a warrant to arrest you — they can arrest you as long as they have probable cause to believe you have committed or are about to commit a crime (an arrest made at your home generally does require a warrant unless there’s a belief you will run away, destroy evidence or harm someone).

If you are arrested, don’t try to run away or resist, as this will only make the situation worse and lead to additional charges. Though it may be difficult, try to remain calm and not get into an argument with the officer. Be careful about your body movements, and don’t threaten to file a complaint against the arresting officer. If you feel the officer has violated your rights, you can file a formal complaint later.

Your Right To Remain Silent

As most people know from watching television crime shows, if you’re arrested you have to be read your Miranda rights by the police before they can question you. These state that:

• you have the right to remain silent;
• anything you say can be used against you;
• you have the right to an attorney; and
• if you cannot afford an attorney, one will be appointed for you.

Miranda rights are guaranteed by the U.S. Constitution. They must be given to you whether you are a U.S. citizen or a non-citizen. If you are arrested and not read your Miranda rights before police start questioning you, statements you make cannot be used against you. However, this does not mean your case will be dismissed, as there can be other evidence sufficient to find you guilty.

Ask To Speak To A Lawyer Immediately

Once you are under arrest, take advantage of your right to remain silent and don’t answer any questions (you can give your name and personal information).  Ask to speak to a lawyer immediately, and don’t say anything until you have talked to a lawyer . An arrest is an emotional time and can cause you to not think clearly, and it’s easy to accidentally say something that hurts your case. You may think you can persuade the police officer to let you go, but this is highly unlikely. What is a lot more common is that the person being arrested says something that makes things worse.  Any statement you make will go into the police report and be used against you later.  Because of this, it’s much better to consult a lawyer before you say anything. Your lawyer can advise you what to say — or not say — to law enforcement officers so that it will not hurt your case.

Invoking your right to remain silent is easy. Just simply tell the officer “I don’t want to say anything until I talk to my lawyer,” or “I am invoking my right to remain silent” or “I have nothing to say.”

If you’re arrested, law enforcement officers can question you without a lawyer present only if you waive your right to remain silent. If you answer some questions and then decide you don’t want to answer any more until talking to your lawyer, the questioning must stop.

• Physical evidence. In some arrests, like an arrest for drunk driving, the police officer will ask for physical evidence, such as a blood, breath or urine test. All states have implied consent laws, which are based on the principle that as a condition to obtaining a driver’s license, people implicitly agree to take a test to determine the alcohol content of their blood if they are suspected of drunk driving. But laws vary between states regarding the penalties for refusing to take a blood alcohol content test. Almost every state imposes administrative penalties, like fines and losing your driver’s license for a certain time, for refusing to take the test. Some states also impose criminal penalties for refusing to take a test.

Searches

When you are arrested, the police will likely search you.  Depending on where the arrest occurs, they may also try to search your car or home.

With regard to body searches, if you are arrested a police officer is legally entitled to search you — without a warrant — for weapons or evidence.

If you’re arrested while driving, you are not legally required to consent to a search of your vehicle, and to protect yourself, you should not consent to a search.  Generally, the police are entitled to search your car without a warrant and without your consent only if there is probable cause to believe it contains illegal items or evidence.

If you are arrested at home, an officer without a warrant can generally search only the area near your (depending on the circumstances, this may mean just the room you are in). However, if the officer believes evidence will be destroyed and it’s an emergency situation, your home may be searched without a warrant and without your consent.

If you are the victim of an illegal search, a court may not allow as evidence anything obtained during the search.

After The Arrest

After the arrest, you will be taken to a detention center for booking.  It is important to continue to maintain your silence, as the statements you make not only at the time of the arrest but also elsewhere can be used against you.  Booking is the process of fingerprinting, photographing you and processing you into the system. At the detention center, you will be granted the right to make at least one phone call. That call should be to a loved one, friend or a lawyer, who can start the process of protecting your rights.

Being arrested is a frightening and confusing time.  But knowing and invoking your rights if you are arrested — especially your right to remain silent and your right to a lawyer — can help prevent the situation from getting worse.

While the legal fees are certainly a major consideration, you should know that there will always be someone willing to handle your case for less.  Below are a few factors to consider:

1. Experience. Although a less seasoned criminal lawyer might do good job, your future depends on his/her experience.  Don’t be afraid to ask about a lawyer’s prior history and results; don’t be fooled by those who will guarantee results only to get you in the door.

2. Practice Area. It should go without saying that you want a criminal lawyer to handle your case, but a lot of criminal attorneys are merely general practitioners who represent anyone who is willing to pay their fees.  You should choose an attorney who specifically focuses on the kinds of cases similar to yours.  

3. Reputation.  A criminal lawyer who comes highly recommended by past clients is always a good sign; don’t be afraid to ask for references.  Online databases are another research tool, but beware that a lot of those recommendations are based on the fees the company charges the attorneys to be members.   

4. Trust. You will be entrusting your criminal lawyer with a lot of responsibility, your freedom being the most important. Sit down with the prospective attorney, have a conversation and make sure you feel comfortable. If you don’t have trust in the attorney, then most likely that attorney will not have your best interests in mind. 

5. Schedule.  Most criminal lawyers take any criminal case that walks through their doors as long as the client has money.  When this happens, often times that attorney is handling so many cases that he/she isn’t able to provide you with the needed time and attention you deserve and should demand.  Unlike other areas of the law, a criminal attorney should never pass your case on to a paralegal or assistant.

STATE vs. FEDERAL
Key Differences in the Early Stages of the Case

PROCEDURE AFTER BEING ARRESTED

• Arrestee taken to jail
• Arrestee photographed and fingerprinted
• Arrestee allowed to make a telephone call

SETTING OF BAIL IN A STATE CASE

• Bail is determined by a Bail Schedule.
• Factors that cause the bail amount from the schedule toincrease:Once bail has been set, the arrestee can either post the bail or remain in custody.In court, the arrestee can ask the court for a bail reduction, which may or may not be granted.
  • Prior record
  • History of appearances on other matters
  • Citizenship status
  • On parole or probation

SETTING OF BAIL IN A FEDERAL CASE

• In a federal case, there is no Bail Schedule.
• If arrested on a federal charge, the arrestee must be taken before a United States Magistrate for bail to be set. This appearance must be no later than the very next court day from the arrest, but is often the same day of the arrest.
• At the courthouse, the arrestee is interviewed by a Pretrial Services Officer who will conduct an investigation into the arrestee’s background, including employment, financial, family and community ties, and will make a recommendation to the Magistrate on the matter of bail. Facts about the case will not be discussed in the investigation.
• Under the Federal Bail Reform Act, a person considered to be either a flight risk or a danger to the community can be detained with no bail.
• Flight risk is commonly found in cases involving non-citizens, especially in large-scale narcotics cases. Danger to the community is commonly found in cases involving weapons, organized crime, gang-related activity or persons with an extensive criminal record.
• If the Magistrate orders detention (no bail), the arrestee can appeal to a District Court Judge, which takes 2-3 days.

STATE vs. FEDERAL
Pre-Trial Stages

Although there are a number of significant procedural differences between state and federal cases, in the areas of trial preparation and plea negotiations, these differences are mostly cosmetic and not substantive.

STATE

• In most states, after the arrest and before the trial, the accused has a right to a preliminary or probable cause hearing. At this hearing, the prosecution must produce sufficient evidence to create a reasonable suspicion that a felony was committed and that the accused committed it. If they do, the accused is “held to answer” for trial. Cases where the prosecution does not present sufficient evidence are dismissed.

FEDERAL

• At the initial appearance before the Magistrate in federal court, a date will be set for a preliminary hearing, but, in practice, they are rarely held.
• Between the time of the initial appearance and the preliminary hearing, the United States Attorney will present the case to the Grand Jury and will receive an indictment. Once the accused is indicted, the right to a preliminary hearing is negated and the case proceeds directly to the District Court for trial.

DISCOVERY

The biggest difference between the pre-trial proceedings in state and federal cases is “Pre-Trial Discovery.” Discovery is the term used to describe the prosecution’s obligation to provide all of its evidence to the defense, including police reports, witness statements, expert witness statements, investigation reports, evidence logs, laboratory test results, photographs and documents describing the charges.

STATE

• In state court, discovery is required, by statute, at an early stage in the proceedings, long before the trial.

FEDERAL

• In federal court, discovery is not required until much later in the case. Under the Federal Rules of Criminal Procedure, the prosecutor is not required to provide witness statements until after the witness has testified in the trial, a rule that seems quite unfair and is frowned on by many judges. Due to the attitude of many judges, there is a policy that the United States Attorney should provide “discovery” at an earlier time than required by the statute. A problem arises when a United States Attorney chooses to “play by the rules” and withhold discovery until the last minute. In such cases, a defense attorney will make motions to compel discovery at an early stage of the proceedings “to avoid delays once the trial has begun.” This approach is usually successful in getting early discovery.

SENTENCING IN STATE AND FEDERAL COURT

The biggest difference between state and federal cases is sentencing after a conviction, either by plea or trial.

STATE

• Even though there are a number of state crimes that carry mandatory/minimum sentences, such as murder, rape, kidnapping and large quantity narcotics cases, state law allows a judge the right to exercise discretion and sentence under the mandatory/minimum where “unusual circumstances” exist. This means that, either by way of a plea bargain or, even without the consent of the Commonwealth, a state judge can impose a lenient sentence if they are persuaded that it is appropriate. It is the defense attorney who should bring mitigating circumstances to the attention of the sentencing judge.

FEDERAL

• The federal criminal sentencing has changed dramatically since the landmark case of United States v. Booker in 2005. Federal criminal defense attorneys have significantly more room for creativity and advocacy. Federal Judges are no longer handcuffed by the Federal Sentencing Guidelines. For decades decades the power in sentencing, and most federal prosecutions, rested with the prosecutor. Booker has shifted the stables-somewhat, in favor of the criminal defense lawyer and given Federal Judges a more “human” role at sentencing.

18 U.S.C. § 3553(a) in light of United States v. Booker, 543 U.S. 220 (2005) requires the Court to fashion a sentence “sufficient but not greater than necessary” to achieve the statutory purposes of punishment. In Booker, the Supreme Court restored this Court’s ability to fashion a sentence tailored to the unique circumstances of each case and each criminal defendant by requiring courts to consider factors other than the sentencing range prescribed by the United States Sentencing Guidelines. Thus, although the Federal Judge still must take the Sentencing Guidelines into account, Booker rendered the Sentencing Guidelines advisory. See Gall v. United States, 128 S. Ct. 586, 594 (2007); United States v. Pauley, 511 F.3d 468 (4th Cir. 2007). The sentencing guideline range is not binding on the Court, but is only one of several factors in §3553 (a) to be considered in determining the sentence. Booker, 543 U.S. at 258-60.

In fact, the sentencing guidelines do not even enjoy a presumption of reasonableness. Nelson v. United States, 129 S.Ct. 890, 892 (2009)(“The guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.”)(emphasis in original). See also Rita v. United States, 127 S. Ct. 2456 (2007). The “overarching” command of § 3553(a) is the Parsimony Clause, which “instruct[s] district courts to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing.” Kimbrough, 128 S.Ct. 558, 563 (2007)(quoting Gall, 128 S.Ct. at 600).

As a result of Booker, our attorneys have been able to secure probationary sentences in federal criminal cases-which previously would have been unthinkable. For more information on the changes in the landscape post Booker and other