FAQ’s

What should I do if I am ever arrested?

What happens if the police did not read me my rights?

Can the Police search me or my car when I get pulled over?

Can a Police Officer stop me if I am just walking down the street?

What happens after I’ve been arrested?

















What should I do if I am ever arrested?

If you are ever arrested, taken into custody or even just held for questioning by the police, the single most important thing you should do is to remain silent and immediately assert your right to an attorney. In order to “assert” your rights, you must actually say the words (or something close to) “I will not speak to you anymore without my lawyer present”. Once you say those words to the police, the police MUST stop questioning you at that very moment. (Obvious things such as your name, DOB, Address and SSN are okay to tell them, but that’s it!) You can not get into any trouble for telling them you will not speak to them, in fact, its your right.

Although the police will often seem “friendly” or “nice”, always keep in mind that it is their job to arrest people and ultimately have those people convicted of the crime accused of in a court of law. Because of this, the police have sometimes been known to “trick” people into saying things which may not be totally true. In fact, most police are trained in coercive tactics and are taught how to get just about any answer they want from a suspect. The police can be tricky, sometimes they are very nice and other times they yell and try to scare you (i.e. by telling you that you are going to jail if you don’t talk to them). Don’t fall for these traps!! Always assert your right to remain silent as well as your right to an attorney!!!

It should be noted that contrary to what people seem to think, the police do not have the authority to “make you a deal” if you talk to them. Plea agreements and negotiations over charges are done between the prosecutor, the defense attorney and most often the judge. The police almost never take part in these negotiations. Although there are times when the police may have some influence over the prosecutor’s decision, it should be noted that this is not until much later in the case (after you have been to court a few times already). Your silence at the police station can NOT legally be used against you!

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What happens if the police did not read me my rights?

Probably thanks to television, people seem to think that you must be read your rights when you are arrested. That is not necessarily true. In order for the police to be required to read you your rights, two things must be present: 1. You must be in police custody and 2. The police must be interrogating you (questioning or trying to get information from you). Only in situations where there is both custody and interrogation must the police read you your rights.

However, if the police do question you while you are in custody, without having read you your rights, any incriminating answers or confessions you give will likely be suppressed (not allowed in court / not used against you).

NOTE: Anything you say freely and voluntarily can be used against you, regardless of whether you have been read your rights. So be aware. For example, ALL police cars are “bugged”, so don’t ever talk while in a police car just because the cop may be outside the car. Also, often times the police send undercover informants into jail cells (posing as normal people who have been arrested) to try to overhear people talking about the crimes they are accused of. Anything you say in this situation can be used against you, so basically, keep you mouth shut!

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Can the Police search me or my car when I get pulled over?

Sorry for this answer but…….it really depends. If you are pulled over for a traffic stop, the general rule is that the police may NOT search you or your car without a warrant. There are however some exceptions to the general rule. They include “search incident to arrest” or SIA, the Auto Exception, Plain View and Consent. I’ll try to explain each one in English, without all the legal mumbo jumbo. It’s a bit long, but trust me, everyone should know their rights. It’s worth taking a moment to read.

First, anytime the police legally arrest you (or any other occupant of the car) during a traffic stop, they can then legally search you and your “wingspan”. A person’s wingspan is anything within that person’s reach--and when an automobile is involved, it includes the entire passenger compartment of the car (but not the trunk). This is known as a “search incident to arrest”, or SIA. It should be noted that in this situation, the legal arrest must take place first. (Note: the mere issuance of a traffic citation without an arrest is not enough to trigger the SIA exception.) For example, if you are pulled over and the police arrest you for say….having a suspended license, DWI, unregistered vehicle, etc., then they can search you and your wingspan. But again, the original arrest (suspended license, DWI, etc.) must be a valid arrest. If it was later proved that they did not discover that your license was suspended (or your car was unregistered, etc.) until after they searched the car, the search would be illegal. Then, any evidence found during the search would be suppressed (not allowed in court / not used against you).

The second exception to the general rule is the “automobile exception”. (It should be noted at the outset however that this particular exception is very rarely used to invalidate a search of an automobile.) Under this exception, the police would need to have probable cause to believe that you or the car contains contraband, instrumentalities of crime or fruits of a crime. (Probable cause is more or less a very good reason to believe that the place to be searched contains instrumentalities or fruits of a crime, or contraband). An example of this would be if a police officer witnessed a drug deal take place from a car. He or she would then have a pretty good reason to believe that the car contains contraband (the drugs), or fruits of the crime (money), and a search of the car would be legal. ( Note: If the police do have probable cause, then unlike the SIA exception above, this exception allows a search of the entire car, including the trunk.)

Another example that may demonstrate this principle is something that really happened to one of my clients. While driving on a major north / south interstate known in the past for heavy drug traffic, my client was pulled over for “following to close”. The police immediately had a drug sniffing dog do a quick “sniff” around the outside of the car. About half way around the car, the dog stopped and signaled to the officer that illegal drugs were in the car. This signal by the drug sniffing dog was enough to establish probable cause on the part of the officer. The entire car was then searched. The United States Supreme Court has held that a dog’s “sniff” is not an invasion of privacy. So, this sniff and signal by the dog supplied the officer with the probable cause that he needed to make the search legal. (Here, it is interesting to note that although nothing was found, my client did fit the profile of a drug courier which probably aroused a heightened suspicion by the police. He was driving a rental car with out of state plates, accompanied by two other men. Did you know that police can determine if a car is a rental car just by looking at the first few letters on the license plates? Well, they can.)

The third exception to the general rule is rather simple to understand. It is called the “plain view” exception. If the police see something which appears to be evidence of a crime, fruits or instrumentalities of crime or contraband in “plain view”, they can then search the vehicle. So for example, if a police officer, while making a traffic stop, notices something in plain view which he knows to be commonly used to hold drugs (a piece of aluminum foil, an opaque baggy, etc.), then he or she could search the car. It is interesting to note that the item which causes suspicion does not need to be something which is commonly known to the public to be used to hold drugs. A police officer may use his or her experience in law enforcement as a basis to believe something is contraband. An example could be if a cop happens to know from past experience that drugs are sometimes stored in a film container, dollar bill, etc.

The last exception to the general rule regarding a search of you and your car is clearly the simplest to understand. It is called “consent”. If you consent to a search of your person or car, the search can never be said to be illegal. Consent simply means you give the police officer your permission to search.

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Can a Police Officer stop me if I am just walking down the street?

In order for a cop to stop you when you are in public, he or she must have pretty good facts which create a “reasonable suspicion to believe that criminal activity is afoot”. In English, this basically means he or she must reasonably believe that you are about to, or have just very recently committed a crime. Once you are “stopped”, the officer can briefly detain you (probably 1-2 min tops). During this time the cop can question you in order to confirm or deny his suspicion. He or she can also “frisk” your outer clothing to determine if you have any type of weapon which could threaten his / her safety. If after this quick frisk and a very brief period of questioning the cop has not made any serious discovery of a crime, the cop would be required to let you go on your way.

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What happens after I’ve been arrested?

When you are arrested, you are normally brought to station house to be “booked”. Being “booked” is the expression used to describe the time when the police record certain vital information relating to you, the crime, etc. Most notably, this is when your fingerprints and “mug shot” are taken. In most circumstances, after you have been booked, the police will make a decision regarding bail. (It should be noted here that this decision by the police is only a preliminary decision. The issue of bail later gets addressed in court and is negotiated by the defense attorney, the prosecutor, the judge, and in some jurisdictions, a bail commissioner. It should also be noted that very often, the bail is reduced from what the police originally set it at.) Bail, as you probably know, is money which is paid as a security to insure that you will actually show up in court.

Every arrest must be supported by probable cause. If you are arrested by means of a warrant, then probable cause has already been found to exist. If however, you have been arrested without a warrant (for example, after a bar fight), then the police MUST get you in front of a judge within 48 hours of the arrest in order for the judge to make a finding of probable cause. This may be the first time you appear in a courtroom after an arrest.

The next step is the “arraignment”. This is when you must appear in court and plead guilty or not guilty to the charges for which you have been arrested. This is when a judge will explain the charges against you. This is also when the issue of bail may get raised again (see above). After the arraignment, you will normally be issued another court date and your case will be officially be on the court docket. Naturally, what happens from this point forward varies from case to case.

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