Arrest/Search
Arrest
An arrest is being taken into custody to "answer for an offense." An arrest has taken place when the police indicate verbally or by force that you are not free to go. At this point, you would be taken to the precinct for questioning. Most of the time, if you are arrested, you will then be charged with something, although this is not always true. In New York City, technically, if you are arrested, you must be released or arraigned (go before a judge) within 24 hours. Sometimes they do hold people longer, although they are not supposed to.
To arrest an individual, police need probable cause, which means that facts and circumstances lead a reasonable person to conclude that
- a crime has occurred
- that individual has been involved
Probable cause may include:
- Police sees individual commit a crime
- Reports from a fellow officer that individual has committed a crime
Police CANNOT justify an individual's arrest based solely on one of the following:
- Presence in a high-crime area
- Trying to run away
- Previous criminal record
Arrest with a Warrant
A warrant may be issued for your arrest if you are not in police custody, and the police show a judge probable cause for your arrest. In addition, a warrant may be issued for your arrest if you fail to appear in court for a previously scheduled court date.
Arrest without a Warrant
Most arrests by police officers occur on the street, without a warrant; therefore, certain requirements must be met. The Fourth Amendment to the Constitution protects citizens from "unreasonable search and seizure.” Basically, this means that if you are arrested on the street without a warrant, the law in New York requires that the officer have probable cause to arrest you.
Searches
A search is more intrusive than a frisk, and requires a higher standard of justification. Searches require "probable cause" and may be conducted with or without a warrant, according to the circumstances. A warrant is an order signed by a judge that describes the specific place, items, and/or persons to be searched/seized. The police may seize other non-specified items found while "reasonably" executing the search, which is obvious evidence of a crime or contraband.
Search incident during or after an arrest The police may search you when you are being arrested, or after your arrest, in order to locate evidence that may be destroyed and to make sure you do not have any weapons. Police must have probable cause to arrest you before the search. They cannot rely on the results of the search as justification for the arrest.
Searching your Home
The police need a warrant to search your home, but keep in mind that there are some exceptions:
Consent: This is when a person voluntarily gives the police permission to search their persons or premises. If you do consent, you can specify the limits of your consent. For example, "you can check my pockets, but nothing else." If the officer says you have no choice, you can say, "Okay, if I have no choice, I will cooperate, but you do not have my consent to search me." Remember if you voluntarily allow the police into your home (or if they have a warrant) anything that is in Plain Sight and is “illegal” can be used against you by the police and be the basis for an arrest.
Exigent circumstances: This is when there is a risk of physical danger to the officer and/or others, or a risk of the loss/destruction of evidence.If the police reasonably believe evidence will be destroyed if a search is delayed, they may search you if they have probable cause that a crime has been committed and the person being searched has the evidence. The police will also consider whether they or anyone else is in danger beforehand, to determine whether to begin a search without a warrant.
Searching your Vehicle
If cops legally stop you (usually the cops have pretext’s for stops, like you didn’t signal for turn, speeding, etc.) they can frisk the driver and search the passenger compartment—they CANNOT search your trunk. To protect yourself later, you should state that you do not consent to a search. It is not lawful for police to arrest you simply for refusing to consent to a search. Even if they arrest you—they CANNOT search your trunk on the scene. BUT if cops have probable cause that something in your trunk contains illegal contraband OR the car is impounded, cops can search the ENTIRE car (including the trunk) Never consent to a search of your car—even if you have nothing illegal.
Upon request, show the police your driver’s license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant. If you’re given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.
If you’re suspected of drunk driving (DWI) you will be asked to take a breath-alcohol and coordination test. If you fail the tests, or if you refuse to take them, you will be arrested, your driver’s license may be suspended and your car may be taken away.
If cops legally stop you and see something illegal in “plain view,” they can search your car without a warrant.
