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Getting Arrested

Getting Arrested

Jeffrey K. Rubenstein (Criminal Defense Attorney) gives expert video advice on: What is "reasonable force"?; Do the police have to read me my rights?; When am I legally under arrest? and more...

What rules do the police have to follow when arresting someone?

When making an arrest, the police are supposed to have probable cause to arrest you. They're supposed to only use reasonable force. If they have you in custody and interrogate you once you've been arrested, they're supposed to read you your Miranda rights.

What is "reasonable force"?

Reasonable force is the amount of force a reasonable person would deem necessary under similar circumstances. So, if a person is using fists, a police officer could certainly use their fists, that would be considered reasonable force. Maybe a Taser would be considered reasonable force against fists. A gun, probably not. The remedy for reasonable force is, if the police use something other in excess of reasonable force, a person is then entitled to use reasonable force in turn to resist that force.

What is "resisting arrest"?

Resisting arrest is just like it sounds. If the police have probable cause to arrest you, and you delay or resist them in any way, you can be charged with a misdemeanor of resisting arrest.

Do the police have to read me my rights?

The police only have to read you your rights if it is custodial interrogation, meaning you are in custody and they're asking you questions to incriminate you. People always come to me and say "The police didn't read me my rights; the police didn't read me my rights". Most times the police have enough evidence already that they don't have to read you your rights. They only need to read you your rights if they need to prove more, and they need your statements to do it, which is why you should never talk to the police and always wait for an attorney. Even if you're innocent. Especially if you're innocent!

When am I legally under arrest?

Arrest is a legal task when you are no longer free to leave. It's not what's in your head, it's what's within in the cop's head. So if the jail doors close you're generally under arrest. If the handcuffs are on you might just be detained, but if they take you down to the station you're probably under arrest. Arrest is determined by what's in the cop's head, not what it's in yours.

What is an "arrest warrant"?

An 'Arrest Warrant" is when they have already charged you with a crime. For example if they know a robbery's taken place and they have pictures of you doing it, they'll go to a magistrate - just as with a search warrant - and they will sign an "Arrest Warrant" for you. At this point the judge will set a bail, and then the cops can come and get you. In order for them to come and get you in your home, there is something called a "Leon Warrant" - this is a Supreme Court case that they need to have a special arrest warrant to come and get you at your home.

How do the police obtain an arrest warrant?

The police obtain an arrest warrant by going to the District Attorney with evidence and reports that a person has committed a crime. They get the DA to file charges. Once the DA has filed charges, they then take that to a judge and a judge has to sign an arrest warrant.

Are the police required to have a warrant to arrest me?

The police do not generally require a warrant to arrest you. Generally, when they're out on the streets, there's no time for a warrant. A citizen will report a crime, or the police may view a crime, and then make an arrest. What's interesting is the difference between a felony and a misdemeanor arrest. For a felony arrest, the police can either observe the crime, or a citizen can observe the crime and report it to the police. In order for the police to arrest on a misdemeanor, that misdemeanor must be committed in their presence.

What is probable cause?

Probably cause is when the police have a reasonable, articulable suspicion that a crime has been committed and that you are the person involved in that crime, or that has committed that crime.