Detroit’s Best Criminal Defense Attorney Kevin Bessant understands that for most people, being arrested by the police can be a very scary and intimidating process. Regardless of why you were arrested or the nature of the arrest, it is important to know that during any arrest, you have certain constitutional rights to protect yourself from police harassment, misconduct and unlawfulness. These rights during an arrest are applicable regardless of your immigration status, race, or gender. Although we rely on the police to be fair, unbiased, and non-prejudiced, unfortunately we find that many times this is not the case. Knowing your rights during an arrest will not only help prevent law enforcement from taking advantage of you, but it can also protect you in several ways if your criminal matter is indeed prosecuted in court.
Before an explanation of your rights during an arrest are explained, it is important to note one common misconception during many arrests concerning Miranda Rights or the Miranda Warning. The Miranda Warning is a warning that law enforcement must give an individual while in police custody or police interrogation, advising the arrestee of their right to remain silent and right to counsel to prevent a person from making statements of self-incrimination during police questioning. Miranda Warnings DO NOT have to be given at the initial point of arrest or when you are placed in police custody. Rather, Miranda warnings must be given at the time of interrogation or when police officers are seeking to elicit a statement from a person that can be used against that person in the court of law.
So what exactly are your rights if arrested? While caselaw and experts may disagree on the scope of your rights during an arrest, the following rights are generally applicable during any arrest scenario with law enforcement:
1. Right to Remain Silent:
If arrested, you are under no obligation to say anything to the police. You have an absolute right to remain silent, regardless of whether or not your Miranda Warnings have been read to you by the police or not. In many cases, any information you provide to law enforcement will often be recorded by the officer in his/her notes and will likely be reflected in their citation or police report. These statements can and will be used against you in court. While it is advisable to always be compliant with an officer’s commands during an arrest, you have the right to tell the police that you wish not to make any statements whatsoever and choose to remain silent. In many cases, remaining silent, regardless of the circumstances will only serve to benefit you in the long run.
3. Right to leave or walk away during an “arrest”:
The legal definition of an “arrest” or “lawful detention” does not always occur at the point where handcuffs are placed on you or you are placed inside the police cruiser. For questioning or investigative reasons, the police have a right to temporarily detain a person for questioning if they have reasonable suspicion or probable cause to believe that a crime has been committed or that criminal activity is afoot. During this “temporary detention”, you have to right to leave or walk away from law enforcement if there is no probable cause or reasonable suspicion for your detention. The problem however with this notion is that the legal definition for an arrest is where a person is not “free to leave” the presence of law enforcement. Given that this is the general feeling by many during an encounter with the police, it is advisable to always ask the officer if you are indeed “under arrest”. If the answer is no, then by law you are free to leave if you choose. It is important to never resist, obstruct or fight with law enforcement if being questioned or detained as this can lead to further criminal charges, injury, or can even result in the use of deadly force by law enforcement.
3. Right to Refuse Consent to a Search:
The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures by law enforcement. During an arrest you have a right not to consent to a search of your residence, vehicle or person if the police do not have a search warrant. Police Officers are allowed to perform a cursory search of your outer garments and pockets for weapons and for officer safety, however in most cases without consent, the police must obtain a search warrant to perform a valid search of your “persons, houses, papers, and effects” per the constitution. If you do consent to a search, be mindful that any illegal evidence or contraband discovered as a result of the search can be used against you in court.
4. Right to an Attorney:
At all stages during an arrest you have the right to remain silent and the right to counsel. You also have the right to tell the police that you wish to speak with a lawyer before you answer any of there questions or voluntarily submit/consent to warrantless search. An attorney can counsel you both during and after the arrest, however in most cases police will not allow you to directly call your attorney until after you have been arrested and booked at the police station or detention center.
5. Right to Challenge a Police Stop and Arrest:
While it is strongly advised to remain calm and compliant with a policer officer’s commands during an arrest, you have a right to challenge the lawfulness of the arrest in court. Through your lawyer, you can challenge before the Court whether or not the arrest or police stop itself was lawful, which can often lead to a suppression of certain evidence or even the dismissal of your criminal charges if the police arrest or police stop was deemed unlawful.