What is an arrest?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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An arrest occurs when a person reasonably believes he is not free to leave due to the actions of law enforcement officers. The circumstances that courts will look at to determine whether someone is “free to leave” vary by state and by courts. Deciding when you are officially under arrest is important because any statements made by you without Miranda warnings after you are arrested can be suppressed.

Why it Matters Whether You Were Under Arrest

If you were under arrest, you are entitled to certain rights under the United States Constitution designed to protect citizens from being treated unfairly. If you were under arrest, the police were obligated to tell you what your rights were. They must tell you that you have the right to remain silent, that if you do not remain silent they will use your statements against you in court, that you have a right to retain an attorney, and if you can’t afford an attorney the court will provide one without charge.

If the police arrest you without giving you these warnings, called Miranda Warnings, anything you say or evidence that your statements helped them find will often be excluded from your case and they may not be able to use that evidence against you. If the police can show that at the point you made the statements you were not yet under arrest, it doesn’t matter whether they warned you of your rights, they can use your statements.  

The Difference Between An Arrest and Being Detained

The first factor most courts look at in determining whether there was an arrest is what the officer told you. An initial traffic stop where a police officer tells you that you have been pulled over for speeding is not an arrest. At that point, it’s just a detention. Ironically, even though you are not technically “free to leave,” you are not considered under arrest because the time you are being detained is more brief than an arrest.

The second factor courts will review when evaluating a posible arrest is what the officer did to make you think you were under arrest. In the same example from above, if the police officer asks you for consent to search your car and finds cocaine, he may immediately place you in handcuffs. Even though he never states “you are under arrest,” everything about his actions let you know that you were under arrest.

Generally, being placed in handcuffs is a factor in your favor. Some courts have held that this is not a requirement, however. If you tell the officer, for example, that you have a loaded gun in your car, he may tell you that you are not under arrest and place you in cuffs while he retrieves the loaded weapon due to officer safety concerns. Some courts say this is not an arrest, despite the handcuffs, because the officer made it clear that the detention was for a limited and brief purpose.

Arrests and Statements

A third major factor the courts will review to decide if you were under arrest is whether the police let you go. For example, if the police suspect that you have been involved in a burglary, the police may ask that you come to the police station and give a statement. Once you arrive, the police tell you that they are concerned about your involvement, but also tell you that you are not under arrest yet. They do not read you Miranda warnings and you give a statement. After you give a statement, the police officers allow you to leave. Within the next hour, based on your statement and other evidence, they obtain a warrant to arrest you. Should your statement be suppressed? No. Many courts will hold that because they told you were not under arrest, and you were free to leave after the interview, that you were not under arrest. Again, f you were not under arrest the police are not required to give you Miranda warnings.

If you believe that you were under arrest and the police failed to provide your Miranda warnings before you gave any statements, let your criminal lawyer know as soon as possible so they can begin researching the facts of your case. The laws in your state may actually provide more protection than those of the Constitution. Failure to challenge the circumstances of your arrest before you are convicted can result in a waiver of your constitutional rights. A lawyer who specializes in criminal law can help protect those rights.


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