Advocate High Court, Mumbai.
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something says Adv. R.P.Rathod.
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.
Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested. Before the law enforcement officer questions you, he or she should generally tell you that:
You have the right to remain silent.
Anything you say may be used against you.
You have a right to have a lawyer present while you are questioned.
If you cannot afford a lawyer, one will be appointed for you.
These are your rights, guaranteed by the Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.
Once I Am Told My Rights, Can I Be Questioned?
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different. You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver's license will be suspended and the refusal will be used against you in court. Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have a right to make and complete three telephone calls that are free within the local dialing area.
When Should I See A Lawyer?
If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on the bail process.
Who Can Arrest Me?
All law enforcement officers - such as police officers, investigators in a district attorney's or an attorney general's offices and highway patrol officers - can arrest you whether they are on or off duty, in most cases.
They can arrest you - even if they do not have an arrest warrant, if they have probable cause or good reason to believe you committed a felony, such as armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit an infraction, instead of taking you into custody, they may ask to sign a citation or notice. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.
Can Someone Other than A Police Officer Arrest Me?
Any person, such as a private security guard, can make a citizen's arrest if they see a misdemeanor being attempted or committed. (A misdemeanor is a criminal offense, usually punishable with a fine or short jail term.) They also can make a legal arrest for a felony as long as it actually was committed and they have good reason to believe you did it. They must take you to a police officer or judge who is required by law to take you into custody.
When Is An Arrest Warrant Used?
Usually a warrant is required before you can be taken into custody in your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone's life or seriously damaging property.
The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed a crime. Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door - or if there is another good reason - the officer can break in through a door or window.
If the police have an arrest warrant, you should be allowed to see it. If they don't have the warrant with them, you should be allowed to see it as soon as practical.
The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.
Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
When Can I Be Released?
If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.
What Is Bail And How Is It Set?
The amount of bail - money or other security deposited with the court to insure that you will appear - is set by a schedule in each state. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation. However, if you have any doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not apply to misdemeanors or felonies. Forfeiting bail does not mean that the charges are dropped and usually works as a conviction for a traffic offense. Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior failures to appear, any previous record, your connections to the community, as well as the probability that you will appear in court.
When Can An Officer Conduct A Search?
An officer always may only make a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins.
When Can An Officer Search You, Your Home Or Your Car Without A Warrant?
Body Searches: If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.
Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms - and even other parts of the same room - are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs that is in plain sight.
Car Searches. Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason - such as a broken tail light - they can take any illegal goods in plain sight.
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