What to Do and Not Do When Arrested

If you are arrested, the best thing that you can do for yourself is to keep quiet until you are represented by a lawyer.

The single most important thing to remember if you are arrested is that you have the right to remain silent and the right to an attorney, but these rights protect you only if you use them! If you are arrested, the best thing that you can do for yourself is to keep quiet until you are represented by a lawyer.

What is an Arrest?

A person is arrested when a police officer takes that person into custody. An officer takes someone into custody whenever the person is not free to leave. Although many people who are arrested are taken to jail, the arrest often begins much earlier. For example, if a person is stopped on suspicion of robbery and questioned and is not free to terminate the questioning, then the person is under arrest.

An officer can only arrest a person if:

• the officer sees the person commit a crime
• the officer has probable cause (reason to believe) that the person has committed a felony (any crime punishable by state prison), or
• a judge or magistrate has issued an arrest warrant, supported by probable cause.

Do Not Use Force

In the overwhelming majority of situations, one does not have the right to resist arrest. The arrestee may not have that right even if the arrest is illegal.  A person who uses force can be charged with resisting arrest or battery on an officer, or worse. And that person can end up with serious injuries. If you are arrested without probable cause, fight in court, not on the street.

After the Arrest

If you are arrested, you will be searched – either at the scene or at jail, or both – and any contraband or evidence will be seized. You will be photographed and fingerprinted and there will be a record of the arrest. Many newspapers publish arrest records and these days, many arrest records are easily available online.

Every person who is arrested and questioned by police must be informed of their legal rights to remain silent and be assisted by an attorney (known as “Miranda rights” after the Supreme Court decision of the same name). Usually, a police officer will say something along the lines of, “You have the right to remain silent. You have the right to an attorney and if you cannot afford an attorney one will be appointed for you. If you waive these rights and talk to us, anything you say may be used against you in court. Do you understand these rights?” Some police departments will ask a person to sign a written Miranda waiver before talking. It is almost never a good idea to waive your Miranda rights.

Invoke Your Rights

You have the right to remain silent and the right to an attorney. Invoke your rights! Say, “I wish to remain silent and I would like to talk to a lawyer.” Once you have invoked your rights, be quiet. People often say, “I don’t want to talk” and then they start talking, say something incriminating, and it gets used against them in court. You can tell police your name and basic information, such as your address and birth date, but do not tell them anything else. After your arrest, do not talk to police officers, do not talk to family or friends about your case, and do not talk to other inmates.

Police are trained to tease out incriminating information, and other inmates may chat you up in the hopes that you will tell them something that they can turn over to police in order to secure a better deal for themselves. You should also assume that any conversations you have in jail with visitors, whether in person or over the phone, are being recorded and monitored. Your conversations with your lawyer are confidential, however, and you and your lawyer can decide what you should say, if anything, to police.

Call For Help

In most states, you are entitled to a phone call to your family, a bail bondsman, and an attorney. If you cannot afford an attorney, a public defender will be provided for you. You should memorize the numbers of a few people to call in case you are arrested. Police will probably not let you use your cell phone to make calls. Again, assume that any calls you make from a police station or jail are recorded – unless the call is to your lawyer.

Obtaining Legal Assistance

Being arrested can be unpleasant and stressful. Oftentimes, people just want to get out of jail and think that if they just explain the situation or cooperate, the police will let them go. Police officers may even say something to that effect. Do not try to talk your way out of jail, or make any decisions about your case, without first talking to a lawyer. Do not participate in a lineup, or do anything else with regards to your case, until you see a lawyer.

If you are arrested and charged with a crime, you are entitled to the assistance of an attorney. You should contact an experienced criminal defense attorney or the local public defender’s office to talk about your case. An attorney will be able to tell you how your case is likely to fare in court and what to expect as you navigate the criminal justice system. Working with a good attorney is the best way to protect your rights and obtain the best possible outcome in your case.