Procedures Following an Arrest
The Law of Search and Seizure
If I believe that I have been unlawfully arrested can I resist the officer resisting me?
No. If an officer arrests you and you believe that he is mistaken or harassing you, it is not legal to resist arrest. You should submit and the matter of whether he has acted legally will be handled in court.
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Can they use force to arrest me?
A police officer may use as much force as is necessary to arrest you, as long as the amount of force is reasonable. After an arrest, a police officer may handcuff you and take you to a police department for questioning or to jail.
What happens if I am arrested?
After taking you into custody, an officer must take you before a judge within 48 hours not including weekends. Bail will usually be set automatically when you are booked into the jail. You may either post the bail or If unable to do so, must wait for the appearance in court.
What do I do if the officer wants to question me about what happened?
Many people think that they will be able to talk the officer out of arresting them and attempt to make statements to do that. Others are just persuaded by the officers to respond to questioning and admit their guilt. While honesty may be the best policy in life, if often hurts your case to speak to an officer without talking to an attorney first.
What is a Miranda warning?
A Miranda warning informs people of their right to remain silent and to the right to an attorney in the face of police questioning. An officer is only required to advise a suspect of his or her rights if they are in custody or they are “meaningfully deprived of their liberty.” If such a person entitled to such a warning is not so advised, any statement they make to the police is subject to be being excluded from evidence.
How do I post bail?
Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. You may either post the entire amount, go through a bailbonds company, or obtain a property bond. A bailbonds company usually charges a fee of 10%, but sometimes less if you are currently represented by counsel for their services. A property bond is a more complicated procedure best done through an attorney. It has the advantage of not requiring as large a fee as long as there is sufficient equity in the property posted.
Do I get the money back when the case is over?
If you return to court as required, and you have posted the entire amount yourself, the bail will be returned at the end of the case, even if you are ultimately convicted. If, however, you do not come to court when required or violates the conditions of your bail, the bail will be forfeited to the court and will not be returned.
What happens after I post bail?
If bail is posted, you will remain free pending appearance at an arraignment. You will be given a court date by the jail and have to appear on that time and date.
And if I do not post bail?
If you cannot post bail and remain in custody following your arrest, there will be an arraignment, usually within 24 hours of the arrest or the first date available if on a weekend or holiday.
What happens at an arraignment?
You will appear before a judge who will tell you officially of the charges against you. During the arraignment you will be formally told what offense is with which you are charged. You will also be told your constitutional rights, and of the possible penalties. The judge will also ask you whether you intend to hire an attorney if you wish to have one appointed for you if you cannot afford one, you may enter a plea of guilty or not guilty at that time, although you do not have to choose either yet. The amount of the bail may be reviewed, and a date for the next hearing will be scheduled. You should be very carefully before deciding to plead guilty to any criminal misdemeanor let alone a felony without the advice of counsel. The long term ramifications of a criminal conviction can be severe and irreversible.
In addition, for some first time offenses, such as drug possession in small amounts for personal use, the law provides for drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.
Should I hire an attorney?
That decision is yours of course. But there is often much you might learn from an attorney about possible defenses and the consequences of a conviction before you decide to proceed on your own. In addition, even if you only wish to plead guilty, the plea bargaining process with which an attorney can assist you could lessen your penalty for the crime.
What is an arrest warrant?
An arrest warrant is an order permitting any law enforcement officer to arrest you even though he may not have been involved in your case in any other way. It is obtained by someone in law enforcement submitting a request under oath and alleging that you are guilty of a crime.
Can I be arrested without an arrest warrant?
Yes. If the officer has probable cause to believe that you have committed a felony or even a misdemeanor if one is committed in his presence.
What is probable cause?
This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn’t probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officer’s hunch, with nothing more, will not satisfy the requirements. This is an extremely complicated area of the law in which it would be most helpful to consult an attorney.
What is a search warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, it also must be shown that there is probable cause to believe that the items sought are evidence of a crime or are contraband and that they are likely to be found at the location in the warrant. In addition, a search warrant is required to search for a person suspected of a crime if he is believed to be in a residence other than his own.
If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
Unless the officer has a search or an arrest warrant for an occupant of your home, you are under no legal obligation to let the officer search your residence. If he does have such a warrant and you resist his entry you could be charged with a crime.
What if the officer does not have a warrant and I agree to the search?
If you voluntarily consent to a search of your home, automobile, or person, than the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court.
What is the Plain View doctrine?
Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be.
If I am arrested, can the officer search me?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.
Law Offices of Peter F. Goldscheider
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Palo Alto, California 94306
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