Arrested: Defendants Rights at Arrest
Can Law Enforcement Make Warrantless Arrests?
Typically, there are only two circumstances where an officer can make a warrantless arrest, which include:
- If an officer is present when a crime is committed, a warrantless arrest may occur
- If an officer has probable cause to believe a given suspect perpetrated a felony, either in or outside of the officer’s presence
Other situations, known as “exigent circumstances” allow an officer to make an arrest if they believe a suspect to be an immediate threat to themselves, the officer, or other civilians. Also, if an officer is in active pursuit of a suspect, warrantless entry and warrantless arrests can occur until the pursuit and factors surrounding the pursuit are determined.
Illegal and Justified Use of Force during Arrests
First, an officer apprehending a suspect typically must follow a procedure known as “knock and notice”, which makes police announce their presence, give occupants time to come to the door, and prevents law enforcement from barging into your home unnecessarily. However, “knock and notice” procedures can be ignored for different reasons, including:
- Eminent danger to persons inside a dwelling
- Active or hot pursuit of suspect
- Believe that announcing presence could afford suspect time to destroy evidence
- Believe that announcing will put officers’ safety in danger due to resistance of arrest
The amount of force an officer is allowed to legally use during an arrest is generally determined by the amount of resistance a suspect offers. The courts determine if force used was “excessive” or “use of unnecessary force”. However, depending on the situation, an officer has several non-lethal and lethal choices to protect him or herself and complete an arrest. Generally, law enforcement can only use lethal force if a suspect points a weapon at officers, is about to commit a violent felony, or threatens the safety of third parties. For many cases, being in a car chase immediately endangers the safety of officers and third parties; therefore, use of lethal force is permissible.
How to Make a Citizens Arrest
Your best bet is to not. Realistically though, almost every state provides citizens the right to make an arrest if they personally see the commission of a crime, or have probable cause to believe a suspect committed a felony. However, detaining your “suspect” might actually be considered false imprisonment or even kidnapping if you violate someone’s legal rights in the process. That is just the criminal liability you may endure. In addition, there is the question of civil liability you may incur from detaining your “suspect”. Some states, however, have specific laws allowing individuals to protect their “domain” or home and property with lethal force. In addition, if any individual threatens your safety, you can use lethal force to prevent this from happening. Making a citizen’s arrest of a person that threatened your safety would be hard to prove however, if you managed to gain full control and custody of that person. Typically, the courts look extremely harshly at citizen arrests and are not too thrilled about individuals actively exercising these rights.
Booking and Bail Process
How Booking Works
Defendants arrested for a crime must be booked following their arrest and prior to posting bail. During the booking process, an official arrest record is made. This process will record a number of things about a defendant, including:
- Recording defendant’s name and the arrest charges they face
- Making photo records of the defendants, or taking their mug shot
- Removal of all personal items from suspect, which will be returned upon release
- Recording of suspects fingerprints
- Submission to a body search ranging from a frisk pat down to a strip search
- Assess whether or not a defendant has outstanding warrants in other jurisdictions
- Screening of arrestees for contagious diseases such as tuberculosis or identifying those that are HIV positive or with AIDS
Arrestees are not entitled to an attorney during the booking process, and any evidence or statement they make during the booking process can be used against them later. The courts will appoint an attorney for all critical legal proceedings, but per the court’s ruling, the standard booking procedure is not a critical legal proceeding. Additionally, most states allow suspects to make one or more local phone calls following the completion of the booking process.
How to Arrange Bail
Bail is some form of cash or collateral held in escrow by the courts in lieu of allowing a defendant to remain free until the resolution of their criminal case. Acceptable mediums of bail include cash, property at the value of the cash value of the bond, and collateral provided by friends or family members. In addition, defendants can purchase a bail bond for usually a ten percent non-refundable premium to secure their release. Defendants can arrange their own bail without the assistance of a lawyer.
The amount of the bail arrangement depends on the crimes one is suspected of committing. The amounts vary by jurisdiction, as well as on a case-by-case basis based on the severity of the crime. Typically, defendant’s first court appearance, either a bail hearing or an arraignment, is when a bail amount is determined. Defendants can negotiate the terms of the bail arrangement with a judge themselves or via their attorney. Sometimes, bail arrangements come with restrictions on movement, activities, or mandatory rehabilitation. If these conditions are violated, your bail may be revoked.
If you are out on bail, but do not appear for a scheduled court appearance, you will face criminal and economic penalties. First, your bail amount will be confiscated, and you probably will be in contempt of court and now a fugitive from justice. This will not help your defense in any manner possible.
The Own Recognizance Release
In some instances, arrestees may be released on their own recognizance. This means that a suspect has signed a written document promising to appear before the courts at scheduled times and to abide by the conditions of their release. Many times, the charges that you can be released on your own recognizance are less severe, and individuals without a criminal past or inclination to flee are given preference in being released on their own recognizance. Additionally, jail overcrowding has allowed some defendants to be released on their own recognizance more frequently than in the past. Defendants or their attorney can request release on own recognizance during the arraignment of bail hearing, and in turn, will want to provide enough supporting evidence to convince a judge that this is a feasible option for the defendant.
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