An arrest is frightening and may have serious consequences even if you are not convicted. You should know about your important constitutional rights which may protect you and improve your defense against criminal charges.
An arrest occurs when a police officer takes a person into custody or physically or verbally restrains them. The arrested person is held to answer to a crime. That person may be taken into custody immediately or receive an appearance ticket to appear in court and present their criminal defense.
Individuals may be arrested through a court-issued arrest warrant which can be executed at any time. Police must tell the arrested person that the arrest is being made in accordance with a warrant, show them the warrant, and allow them to read it.
Police with an arrest warrant may break open a door or window to gain entrance if they give notice of their authority and purpose and they are refused entry. Police can also force entry if they believe that the person will escape, destroy evidence or notice will endanger them.
Police are authorized to make a warrantless arrest if they have reason to believe that a crime is being committed in their presence, that crimes were committed outside their presence or that a private citizen lawfully arrested the person. If the police make a warrantless arrest, they must cite the reason for the arrest, unless the person is committing a crime or being chased.
Police may chase the suspect beyond their geographical employment area. Police can also use all necessary means, including force, if a person resists arrest.
In New York, citizens are permitted to arrest someone without a warrant if that person committed a felony or committed a non-felony in the citizen’s presence. Unless it is impracticable, the arresting citizen must state the reasons for the arrest. The citizen has to take the arrested person to a judge or the police without unnecessary delay.
The arrested person may sue that citizen for unlawful arrest if they did not engage in a criminal offense even if the citizen had a reasonable cause to believe that a crime was committed. Reasonable force can be used to resist an unlawful citizen arrest.
Police must have a search warrant to search a person unless the search is incidental to a lawful arrest. Police may also search the immediate area of the arrest without a warrant. There are other specific legally justified reasons for a warrantless search.
Anyone taken into police custody, including juveniles, have these rights:
- to telephone their lawyer, friends, or family to notify them about the arrest
- to speak with their lawyer at the location police are holding them.
- to remain completely silent, answer only some questions and stop answering questions if they want to remain silent
- to have their lawyer in that case or another case present before they are placed in a police lineup
- to a receipt for any personal property or money taken by police
- to be taken to court without unnecessary delay after arrest and booking
Before questioning, police must tell you:
- that you have the right to remain silent
- that your statements may be used against you as evidence
- that you have the right to first speak to an attorney and have the attorney present during questioning.
A record is made of felony and misdemeanor arrests including fingerprints and photographs. If there is an acquittal or the case is dismissed, the arrest records must be sealed, and the fingerprints and photographs must be returned to the person or destroyed.
Right to a lawyer
A judge must allow a reasonable time, usually a few days, for a person who appears in court without legal representation to obtain a lawyer before the case may go forward. Judges must also inform them of the right to use a telephone or to send a letter free of charge to get a lawyer or inform a relative about the arrest.
Anyone who waived their right to an attorney earlier may exercise this right before a judge. Courts must assign an attorney free of charge to a defendant who cannot afford an attorney.
Arrests are serious and have serious consequences. Attorneys can help you present a strong criminal defense and assure your rights are protected.