What Arrest Procedures Do Police Have to Follow?

There are many myths and misconceptions about when and how arrests can be made.  For example, when do the police have to read you your Miranda Rights?  What happens if they don’t?  When can officers claim to have probable cause?  Are officers allowed to search you without a warrant?  Our Philadelphia police brutality lawyers clear up the confusion.  Do you know your legal rights when it comes to dealing with the PPD?

Whether an officer is making the arrest with or without obtaining a warrant in advance, the crux of the process is the concept of “probable cause,” a term you are probably familiar with.  Probable cause means more than simply having a hunch or a bad feeling about a suspect, but is less than comprehensive and thorough than evidence which would prove a suspect’s guilt beyond a reasonable doubt.  Probable cause can be established by physical evidence, information from witnesses, an officer’s observations, or other means.

For example, one aspect of probable cause could be “plain view,” where an officer clearly observes illegal drug possession or weapons possession.  Under the Plain View Doctrine, officers have the right to seize an item provided he or she has probable cause to believe the item is in fact illegal.

While an officer must have probable cause in order to make an arrest, the final word on whether probable cause truly existed belongs to the judge.  In fact, the purpose of the preliminary hearing or “prelim” which follows the arraignment is for the judge to determine whether probable cause exists. Pursuant to Rule 5.1(f) of the Federal Rules of Criminal Procedure, “If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant.”

judge banging gavel on grey background

Thanks to countless movies and TV shows, just about every U.S. resident has heard the following speech:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to speak to an attorney, and to have an attorney present during any questioning.

This is called “the Miranda Warning,” sometimes referred to as a person’s Miranda Rights.  But while most Americans know the Miranda Warning by heart, far fewer have an accurate understanding of the legal rights, rules, and responsibilities that are actually involved.

For example, here’s a very common misconception you have probably heard at least once: If an officer doesn’t read you your Miranda Rights, there’s no case against you!

There is a seed of truth in this myth.  If an officer fails to read a detainee his or her Miranda Rights, then the responses he or she gives to questioning while in custody cannot generally be used as trial evidence.  However, there’s a catch: officers don’t have to read you your Miranda Rights unless both (1) you have already been placed under arrest or are in police custody, and (2) the officer is about to start questioning you and plans to use your statements as trial evidence.

Furthermore, the police are not obligated to inform you of your right to refuse consent to a search, which brings up another good question…

The Fourth Amendment protects U.S. citizens against random and unjustified police searches, providing the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

However, Fourth Amendment protection is not always as iron-clad as many people think.  Believe it or not, there are situations in which officers can legally perform a warrantless search, such as the “plain view” scenario we discussed earlier.

To give another example, an officer can search your car or home without a warrant if you give consent, which is known as a “consent search.”  Contrary to popular belief, you do not have to put your consent into writing — a simple oral confirmation is sufficient.  If police ask for your consent to perform a search, you have the right to decline.  You should remain calm, polite, and respectful, but should never volunteer any extra information which could incriminate you later.

If you think you or one of your loved ones was wrongfully arrested by the Philadelphia Police Department, or if you feel you were a victim of police misconduct or excessive force, the police brutality attorneys of Krasner & Long can help you file a complaint and fight for your legal rights. Call our law offices today at (215) 882-9752 to schedule a free and completely confidential consultation.

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