STEP 3 – GETTING ARRESTED ON A CRIMINAL CASE
In conjunction with filing charges, a district attorney will often request an arrest warrant for the accused. Once issued, the arrest warrant allows police to locate and detain the individual until he or she can be brought before a judge. This detainment can last anywhere from only a few hours all the way up many months why the case progresses through the criminal justice system. At the point of arrest, the state has turned the tables on a defendant. While a defendant is rightfully entitled to several advantages during trial, the arrest stage places defendants in perhaps the most misbalanced position of a criminal case.
An arrest pursuant to a warrant may be the second detainment a defendant experiences. Remember, an officer may have probable cause to arrest an individual without a warrant or charges being filed. The officer is allowed to detain the individual for up to 48 hours for further investigation based on this probable cause alone. The 48-hour Rule, outlined in County of Riverside v. McLaughlin, requires that after 48 hours either the state must file charges or a judge must make a determination regarding if the suspect should remain in custody. Because this rule does not “pause” for weekends or holidays, a suspect may be detained for a period of time and then released pending further investigation. This may also be the case when an investigation simply cannot produce enough evidence to support filing charges within this window. Once the district attorney has further evidence to support probable cause, charges will be filed and then an arrest warrant issued. At that point, the police will again seek out the defendant to arrest him or her.
Executing The Warrant
Once a warrant is signed by a judge, the police will attempt to locate the defendant to arrest him or her. A valid arrest warrant will allow the police to seek out the defendant at home, work, or any other place she may be found. The police may go to the defendant’s home and perform a knock-and-announce entry. This consists of the police knocking on the door and announcing their presence and position (“Open up, police!”). If the defendant fails to open the door in a prompt manner, the police may break into the property. Courts are generally very pro-police in finding a knock-and-announce forced entry permissible: even a pause of only three seconds may be enough to justify breaking down the door.
Upon locating and arresting the defendant, the police are allowed to conduct a “search incident to arrest.” These SILAs can be viewed as having two components: a personal search and a search of the area where the defendant was arrested. The personal search allows the police to pat down the defendant and to search any bags that are within the “wingspan” of the defendant. Basically, anything the defendant could reach is within the scope of the search. Additionally, when a defendant is arrested inside a home or apartment, the police may search the immediate area for weapons the defendant could reach or for other individuals that could be lying in wait to attack the officers. Thus, this search may include opening closets within the same or adjoining rooms, but not a full investigation of another floor of the residence. Any evidence of criminal activity—even different criminal activity from that which the defendant was arrested—can be seized by the police and used as evidence against the defendant.
Police may attempt to arrest a defendant at his home, but find that he is not there. A warrant remains “active” until the defendant is arrest and the warrant signed and returned to the issuing court. Thus, a defendant may have an active warrant for months or even years without ever realizing it. In these instances, a defendant may be pulled over for a minor traffic offense and have their identity run through a database. The database will notify the officer of any active warrants and the officer may execute those warrants by arresting the defendant on the spot, for the entirely independent crime. Thus, an individual may be pulled over for failing to use her blinker and arrested for a theft charge she never knew existed. This is particularly common when an investigation takes so long to produce probable cause that a defendant moves from one residence to another. In these cases, the defendant is arrested on the “old” charges that have produced an arrest warrant and the “new” charges—the reason that the officer pulled over the defendant to begin with—may constitute an entirely new investigation against the defendant that ultimately produces another arrest warrant later.
After a defendant is taken into custody, officers will generally attempt to interrogate the individual. For a long time, this process was extremely unfair to the defendant, with officers using dastardly tactics and completely disregarding the rights of the accused. The United States Supreme Court handed down arguably its most famous decision in response: Miranda v. Arizona. Miranda requires officers to give an arrestee fair notice of his or her rights; what are now known as Miranda warnings. These include four basic rights and one assurance: (1) the right to remain silent; (2) the right of the state to use any statement against the defendant; (3) the right to an attorney; (4) the right to have an attorney appointed if the defendant cannot afford one; and (5) the assurance that the defendant understands each and every one of these rights.
The Miranda warning is a very nice gesture, but it lacks one particular point: these rights must be affirmatively asserted. This means that officers are allowed to badger a defendant with questions, lies, and misrepresentations unless the defendant says they want to remain silent or talk to a lawyer. This lack of understanding results in post-Miranda interrogations the produce a substantial amount of evidence for the state. Upon arrest, the most important advice can be quickly and easily summed up: Say one thing and one thing only—“I want my lawyer.” Police are allowed to lie to defendants and to only present half-truths regarding their rights during these interrogations. Thus, even if a defendant feels she has nothing to hide, these interrogations are designed to produce useful evidence for the state. They are not designed to be a fair conversation about what happened; the tactics that are available to the interrogator make this clear. The worst mistake a defendant can make after being arrested if failing to use the rights the Constitution grants to him or her.