Have you ever been arrested? An arrest happens when one is restrained by police, and the person is deprived of his/her freedom. This becomes complete when the person arrested is taken into police custody.
An arrest is said to be in progress in the following instances:
– A police officer approaches the subject or suspect and holds the suspect
– A police officer apprehends the subject with the intention of taking him into custody
– A police officer restrains the subject, usually with the use of handcuffs.
– The apprehended subject is placed in a police car.
– The subject is told that he/she is under arrest and is restrained.
In most states, an arresting police officer needs to let the person getting arrested know of his rights, more popularly known as the Miranda Rights or Miranda Warning, during the arrest. To wit, here is the full text of this right:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
This right is read to the subject person during the arrest, or after the arrest but before he is questioned or interrogated while in police custody. An arrest deprives a person of his liberty, so it is of utmost importance that procedures are followed, otherwise, this could lead to a dismissal of the case given technicalities in the arrest procedure.
An arrest can only be made if there is probable cause that one has committed a crime, is committing a crime or will commit a crime. Probable cause is established when an officer of the law obtains facts and circumstances that could establish a person’s criminal act with the help of witnesses or physical evidence. It should not be based on mere suspicion, whim or bias (one cannot be arrested just because a police officer sees him as criminal looking).
A person may also be arrested if an arresting officer personally witnessed the crime or violation, or if a judge has issued a warrant for his/her arrest.
An arrest warrant is a legal document issued by a judge that orders persons in authority to arrest a particular person after the prosecuting attorney presents evidence or testimonies from witnesses that would establish probable cause. Obtaining a warrant for arrest can take a few hours or a few days.
Law enforcers often prefer getting an arrest warrant when handling high profile cases or when they are able to establish a strong evidence of probable cause. This way, they are assured that they are legally sanctioned by the courts to proceed.
When serving an arrest warrant, law enforcers are cautioned not to use excessive force. They are only allowed to apply the necessary force needed to bring the person in custody. Persons getting arrested are also advised not to resist arrest. If they want to insist on their innocence, they can do so in court.
Note as well that a person arrested without a warrant can only be in police custody for no more than 48 hours or just enough time for him/her to be booked which includes filling in the booking form, fingerprinting, taking a mug shot, and checking if the person has any outstanding warrants. No person should be held beyond the 48-hour period unless he/she has been taken to a judge for an arraignment.
It is the prosecuting attorney’s job to examine the evidence presented by arresting officers. Based on this, he can decide on the charges that need to be filed.