Monday, April 22, 2013

What is an Arrest?

This is not a post about Miranda rights and the unnecessary debate that is occurring in the media. If the police violate the law, the penalty is to suppress the evidence at trial. The entire world was determining whether the police violated a person's rights without hearing any of the evidence. As it turns out, no one could question the suspect anyway because he was intubated and sedated.

This post is about an arrest, or what it means to arrest someone.

First, the police must gather the evidence. They must speak to witnesses, gather physical evidence, and analyze the evidence. Once they determine a suspect, they then have to figure out the next steps. It is usually trying to get a statement from the suspect. If they cannot get a statement or he refuses to give one, the police can only arrest someone based on probable cause.

The post below appeared on February 20, 2012, on this blog, and explains what it means to arrest someone. 


Despite the three day weekend, I've spent a lot of time advising on criminal law. Through my years in law enforcement I've developed several good relationships with police officers. We've exchanged cell phone numbers and whenever I need anything on a case, I call them.

The reverse is also true. They call me when they need legal advice on a case or to ask if they have enough probable cause to arrest. As I thought about my conversations with several detectives this weekend, I thought a post on how a suspect gets charged with a crime is due.

The police have the authority to arrest any person when they have probable cause to believe the person has committed a crime. The police officers then decide the charges as well.

How do they attain probable cause to arrest? Some examples:

1) Observe the crime being committed (DWI, drug and gun possession)
2) A citizen informs the police about what happened and the police corroborate the information (robbery call and the victim provides a description. The suspect is arrested ten minutes later, one block away, and is identified by the victim).
3) Someone reports a crime, but there is no suspect. The police investigate and develop evidence against a person. (DNA hit in rape or burglary cases, following the paper trail in an embezzlement case).

The police file the charging paperwork at the time of the arrest. The defendant is then arraigned on this paperwork shortly after.

The time between the arrest and filing of charges is when an officer or detective usually calls me seeking advice. The questions are either is there enough probable cause to arrest or what charges should be filed. Many times I instruct the police to gather more evidence before charging.

Once a defendant is charged and arraigned an ADA looks at the case. If it's a misdemeanor, the ADA may need to file new charging paperwork if the charges the police filed were incorrect. If it's a felony, the grand jury indictment will charge the proper crimes so no changes are necessary at the outset.

The police do not need the district attorney's consent to arrest and charge person. It is the district attorney's discretion to decide which cases to prosecute, however. The DA's office can also direct the police to arrest someone who they did not arrest initially.

It's an interesting interplay between the police and ADA's. Most of the time we are of the same mindset regarding what should happen to a case. There have been many instances where we disagree though. At that point, the DA's office has the final say on whether to prosecute a crime.

So what was the result from all the phone calls over the weekend? The police arrested a suspect we've been looking for since the New Year.

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