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An arrest is an act of the police placing a suspected felon or a material witness under custody of the court to answer for criminal charges that have been brought or criminal charges that will be brought against the suspected felon. An arrest may also be an act placing a person under the authority of the police officer.

Sometimes, in a job application form or job interview, you may be asked if you have been arrested. This question usually means to ask if you have been placed under the custody of the court to answer for a criminal charge or a warrant from a judge or magistrate has been issued against you. If no warrant of arrest appears to have been issued against you then you can truthfully answer that you have not been arrested.

What is a warrant of arrest?

A warrant of arrest is a document issued by a judge or magistrate, ordering the police to cause the arrest and detention of a person named in the warrant. The warrant of arrest empowers the police officer to seize the persons named in the warrant, deprive them of their liberty and place them in custody of the court in connection with a criminal proceeding.

How do I know that I am already under arrest?

It would be easy if, like in the movies, every police officer will tell you that you are under arrest. In real life, this isn’t always possible. Under California laws, a police officer can place a person under arrest if a public offense is committed in his presence. For instance, when the police officer is called to assist in a dwelling and sees that a possible domestic dispute has occurred, or a police officer is called when a fight erupts in a public place, people may not be free to leave because they have been arrested or they may not be free to leave because the police still does not know what happened.

You will know that you are under arrest when you are not free to leave the scene, or the police station and you are taken into custody. This means that even if you ask or demand to leave, you are not allowed to leave. You will know that you have been taken into custody if handcuffs are placed on you or you are placed in a holding or detention cell.

There are instances when the police officers do not arrest you, but they also ask you to stay in the police station. They may even ask you to give a statement as a witness. This occurs when they think you may be involved in a crime or know about a crime that has occurred, but they are not yet sure that you committed a crime. They may think that you are a material witness, or that you may be in danger if they let you go.

What if the police don’t have a warrant of arrest against me?

The general rule is, if the police do not have a warrant of arrest against you, they cannot arrest you. However, there are instances when police officers can arrest you even if they do not have a warrant of arrest: If you commit a felony in their presence or if they have good reason to suspect that you had just committed a crime (for instance, you are holding a bloody knife, or you are holding a broken bottle with what looks like blood on it).

If the police see you commit a misdemeanor, they can arrest you without a warrant. If they see you commit an infraction which is punishable by a fine, they will issue you a ticket or a citation, but they will not arrest you.

The rule of thumb is, if the police must keep you from escaping, stop you from destroying evidence or prevent you from putting someone’s life in danger, or stop you from seriously damaging property, then you can be arrested without a warrant of arrest.

Who can arrest me?

Any police officer can arrest you. A parole or probation officer can also arrest you. A storekeeper or store detective can hold you if they suspect that you have shoplifted. They can hold you until the police arrive.

What if the police come to my house with a warrant for my arrest?

Firstly, a warrant of arrest is a document signed by judge or magistrate. It is an order from the judge to the police officers to take you into custody and present you in court to answer for having committed a crime. The police must have it with them when they come to arrest you.

Second, once there is a warrant of arrest for you, a police officer can arrest you anywhere in the state of California. Even if the police officer arresting you does not have a copy of the warrant of arrest, they can still arrest you.

Third, ask to see the warrant of arrest when the police come to your door asking you to come with them. Read it to be sure that it is a warrant of arrest and your name appears on it.

Fourth, if you are arrested in your home, they can search the area within your reach. If they arrested you in your bedroom, they can search your bedroom. If they arrest you in your garage, they can search your garage, but not your home. They need to get a search warrant to search your home. If the police ask your permission to search your home, remember, you are free not to give them your consent.

Fifth, calmly go with the police officers. Do not resist arrest. If you resist, the police can use force on you. Resisting arrest is a misdemeanor. If you resist and someone gets seriously hurt, you can be charged with a felony.

What can the police do to me when I am arrested?

  1. They can conduct a body search. They can ask you if you have any weapons or drugs on you. They can frisk you and ask you to empty your pockets. They can ask you to remove your shoes or other items of clothing if they suspect that you are concealing drugs or weapons. If you are stopped for a traffic violation, the officer can ask to see your license and registration.
  2. They can seize evidence in plain sight. When you are arrested, and they see evidence of crime in plain sight, they can seize those things. If you are arrested in your kitchen at home and they see on the kitchen counter syringes, lighters, spoons and other drug paraphernalia, they can seize them. You may be stopped because you have a broken tail light. The officer may smell alcohol on your breath and shine a flashlight in your car. If the police officer sees open cans of beer in the passenger seat next to you, you can be arrested while in your car, and they can seize the cans of beer they see in plain sight.

What should I do when I am detained or arrested?

When the police ask you to stay or ask you to accompany them to the station, or they in any way tell you that you are not yet free to go, remember the following:

  1. You don’t have to talk to the police. You don’t have to say anything. You don’t need to sign any paper. The best thing to do when the police talk to you is to remain silent. Most suspects talk and thus, give the police evidence that they would not have if the suspect did not say anything. The police cannot compel you to give evidence against yourself.
  2. You can ask for your lawyer to be present. You can ask to be allowed to call your lawyer. You can ask that the lawyer be present when the police talk to you.
  3. You can ask the police to provide you a lawyer if you don’t have one. The state of California has lawyers called public defenders. Their job is to assist and counsel suspects or accused persons when they are arrested or when they are undergoing custodial investigation.
  4. You can ask for your free phone calls. In California, you can call and complete calling three people. These phone calls, if within the local dialing area, are free of charge. If the person you will call is outside the dialing area, you will pay for those calls.

What if I want to give a statement?

You are free to give a statement, if you wish. Only know that anything you say to the police can be and will be used against you in court. The police can ask you questions but they cannot force you to answer. If you answer the police during the questioning, you are, in fact, waiving your right to remain silent. If while answering you decide that you want to stop, you can stop. You can ask for a lawyer. If after you ask for a lawyer and you are still questioned and you answer, your answers will be used against you.

Can the police get physical evidence from me?

In certain circumstances, such as when you are suspected of driving under the influence of alcohol, you may be asked to breathe into a machine to measure your blood alcohol. You can refuse to take this test but know that if you refuse, the police can suspend your driver’s license. And the fact that you refused the alcohol breath test will be used in court against you. You may be asked to take physical tests like walking heel-to-toe in a straight line.

What if the police seize items from my car or home illegally?

If during your arrest the police had no search warrant and had no probable cause to arrest you or to search your car or home, or if they seized evidence against you which was not in plain sight (the items were hidden in a closet, under floorboards or in the mattress, you can ask the judge to exclude the evidence. When evidence is excluded or inadmissible, then it cannot be used to determine your guilt.

If you have any questions regarding arrest and seizure of items during arrest, please feel free to ask any question from the law office of Ramiro J. Llui

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