Legal Rights After An Arrest

Post Arrest Rights

Two weeks ago I wrote about some of the rights suspects have leading up to, and during, an arrest. Today I am going to continue that train of thought by discussing some important suspect rights after an arrest. No one likes getting arrested, that much is clear, but it does happen. In order to preserve your legal rights, rights often guaranteed by the Constitution itself, it is important that you to understand a little more about the arrest process.

Not a conviction

First and foremost, you need to clearly understand that an arrest does not equal a conviction. In fact, an arrest really does not say much of anything about your ultimate guilt, your chances in court, or even about what the police know or don’t know. Plenty of totally innocent people get arrested and even charged. That is why we have courts; to sort out the legitimate police action from the mistakes.

This point bears repeating because there is a lot of confusion surrounding this issue, especially as relates to what the police may or may not know about you or what you allegedly did. An arrest does not equal a conviction. You have still not been convicted of a crime until a judge or jury decides beyond a reasonable doubt, the highest burden in the law, that you are guilty.

Everything you say can be used against you…

I hear too many stories about suspects who, once arrested, start discussing every possible law that they may, or may not, have violated. Do not be one of them. You will get a chance to tell your side of the story. Wait for a lawyer to assist you. This is usually good advice before an arrest but it is absolutely critical after an arrest. Even if you feel sure that you committed a crime, you may be legally innocent or have a legitimate defense. Even if a law was violated, police are absolutely required to follow certain procedures during their investigation and their failure to do so may be fatal to their case against you.

Confessions

After the arresting process is complete and you have been brought in officers are likely to start asking questions. Confessions are usually a very bad idea. Unless you have spoken to a lawyer first, do not give one. When they read you your rights, the part about how “anything you say can be used against you in a court of law…” that’s true. A confession may be misconstrued or based in part by coercion. Do not feel obligated to cooperate merely because you are vulnerable. Request that an attorney be present, in the event you want to confess.

It does not matter how much they ask, you should not tell authorities anything without speaking to an attorney first. Do not take a deal to “make their day easier”, or to “be a good guy.” Without an attorney there to represent your interests, you have no way of knowing when the authorities are offering you a legitimate legal deal.

And it is not just the cops. There are lots of cases on the books when investigators have put other people up to the task, ranging from your cell mate, to a friend. If you are arrested or are a suspect in police custody, it is best that you keep quiet. Allow an attorney to represent your best interests.

Just say NO

Sometimes it is not enough to keep quiet. If investigators are persistent, and they have been in the past, clearly, firmly and politely tell them that you do not want to answer questions without an attorney present to represent you. By law, they will stop asking at that point. If they continue to ask questions, remember to politely and unequivocally state that you do not want to speak without the representation of an attorney.

During most investigations, you have a general right to end the questioning. This might not apply in the field when officers are actively trying to get a dangerous situation under control, but once you are back at the station in complete custody, they really should stop asking if you say you are done. You may have to be really clear about your desire to be done talking, but that just means that you cannot be ambiguous in your communications. Even if investigators ignore your requests, a good attorney may be able to get a subsequent confession excluded during your trial, as long as you did your best to clearly end the questioning.

Ask for an attorney

You have a right to speak with an attorney. In fact, you have this right regardless of your ability to pay for an attorney. The authorities must provide you with access to a qualified attorney if you ask for one. It might not happen right away, but keep patient and keep asking. They do have to get you an attorney and give you the opportunity to talk with an attorney in private.

However, your right to an attorney is not self-executing. You must actually and unambiguously express your desire to speak to an attorney. It is usually a good idea to do so in conjunction with your refusal to answer questions. Just say “I want to speak to an attorney and I won’t answer any more questions at this time.”

What comes next?

After an arrest, authorities have a limited amount of time in which to either press formal charges or release you. The specific time limits can depend on the circumstances but it is usually not more than a couple of days. This means that within a day or two, you will probably be brought before a judge for the first of several hearings. At this first hearing they do not have to prove much, but they do have to give an explanation of why they arrested you and what they think you may have done.

Even at this stage, it is important to watch what you say. If you have not yet spoken with an attorney, let the judge know. Please, whatever you do, be polite to the judge. You will absolutely make things worse for yourself if you start disrespecting the court. Do what the judge asks at all times. Sit quietly, do not interrupt, and answer questions if you can. Judges are not your enemy and their impartiality serves the interest of justice.

By this point, you really should have been given a chance to speak with an attorney. From there, you'll have to work with your attorney to figure out what to do next.

Get Legal Help

I have kept this discussion colloquial in order to avoid complicating an already difficult subject, which means that what I have written here only covers a few basics. Talk to a qualified attorney for specific legal advice. I am here to help if you have further questions. Contact me immediately to avoid jeopardizing your legal rights.

Legal Rights Prior To An Arrest

By now most people have heard at least a little about the ongoing investigation and trial of Oscar Pistorius, famous track star, who is accused of shooting his model girlfriend in cold blood. At times, the story trumps even the best Soap-Opera Hollywood has to offer; but despite its many twists and turns, the case highlights some of the important considerations underpinning police investigations. It’s hard to draw direct parallels because of differences between United States and South African law, but let’s assume that this case had happened right here in California.

As a suspect, you have rights. While those rights might change based on specific circumstances, some general principles can be broadly applied. Prior to arrest, you have a right to walk away from an officer. If you don't feel like you would be allowed to do that, you may already be effectively under arrest which means that an officer should probably be reading your rights to you. If in doubt, ask. You may get a conflicting answer but you'll pressure the officers to clarify the situation. A simple “I need to get going, am I free to leave?” should head things in the right direction. Whatever you do, be respectful and remain calm.

Prior to Arrest:

Even without an arrest, officers do have some authority to question you, and to expect truthful answers. This does not, however, mean that you must volunteer information. Also prior to arrest, authorities have numerous, sometimes overlapping, powers of search and seizure, most often in connection with securing evidence that can be easily destroyed or ensuring officer safety. However, there are limits. Typically the things that you say only serve to expand police powers, so watch your words. The safest approach is to turn down any request to search you or your property. If the officers have the right, and sometime when they do not, they'll go ahead and conduct their search despite your “no”. Do not worry, if their search is against the law, you'll have your rights vindicated later with the help of an experienced criminal defense attorney.

This situation frequently comes up in homes or cars where an officer might ask to “have a look around” or to “see what’s in your trunk”. What they are really asking is for permission to conduct a search. This suggests that they don't feel secure in their power to conduct the search without your permission. What many people don't realize is that it’s perfectly acceptable to say “NO” and that the officers should respect your refusal unless they are willing to take things to the next level and place you under arrest.

Be sure that your “no” is clear and unequivocal. Saying things like “I don't know”, or “maybe”, or even just keeping quiet might be taken as a yes. Even if you clearly say no, the officers might still conduct the search, but your attorney can often help you get the unlawfully seized evidence excluded from any judicial proceeding. Alternatively, the officers might start pressuring you to change your mind. Don't do it, caving to the pressure and saying yes against better judgment frequently destroys a suspect’s best legal defenses. Be respectful and reiterate your unequivocal denial of consent.

After an Arrest:

Once an arrest is in progress, your freedom to leave has been terminated, but some other rights come into play such as your right to an attorney. If you are arrested, you are not suddenly required to volunteer potentially unlawful information. It’s important to remember that at no point in the process are you ever required to divulge information that might incriminate you. Once you are under arrest, the authorities have the power to restrain you and probably to search you for evidence or weapons.  From this point on, it’s generally a good idea to keep quiet until you talk to a lawyer. You might think that a clever story will quickly resolve the situation but it will probably just make your defense all the more difficult down the road.

Whatever you do, don't try to struggle or fight with the officers. Getting arrested can be terrifying and humiliating but you do not want to make the situation worse. You'll get a chance to talk to a lawyer, even if you don't have money for one, and a chance to have your story heard. Remember to be patient and that an arrest does not equal a conviction.

Conclusion:

This area of the law is complex. Highly qualified lawyers and judges often disagree about the correct outcome of even the smallest of cases. You absolutely must contact an attorney for specific advice in your situation. What I've written here is only the barest overview of a wide range of rights and police powers. No web article, no matter how thorough, can ever replace personalized legal advice.

Evading Arrest

Reflecting on the astonishing tragedy surrounding the rampage of former LAPD officer Christopher Dorner, my thoughts go out to the victims of Dorner’s rampage. In particular, I'm thankful for the heroic efforts of the officers who finally tracked Dorner down and ended his killing spree; even at the cost of an officer’s life, a risk our police forces willingly face every single day.

Evading Police

Given the drawn out nature of the week-long manhunt, I'm reminded of California’s web of Penal Codes designed to deter suspects from evading police; and punish those who do. Centered around section 148(a)(1) of the code, California’s resisting arrest laws are somewhat broader than most people may realize.

Under the Code, individuals are prohibited from resisting, delaying, or otherwise obstructing either a law enforcement officer or an emergency medical technician (EMT) who is performing his/her duty. While the common scenario involves physically resisting arrest in some way, the law also covers non-violent forms of obstruction and applies equally to suspects and the general public.

For example, attempting to interact with a suspect in a way that disregards the orders of a police officer might qualify, as would efforts to slow down an ambulance, attempts to hide your identity during a booking, or seeking to evade police during a pursuit. As these examples demonstrate, the law is rather broad. Generally, doing something that substantively impedes the work of a police officer or EMT may result in a violation of PC 148(a)(1) (though usually not merely disagreeing with an officer or even some amount of yelling back)

Specifically, the prosecution must prove that (1) there was police officer or emergency medical technician lawfully performing, or attempting to perform, his/her duty, (2) that the suspect willfully resisted, delayed, or obstructed that officer or EMT, and (3) that the suspect knew, or reasonably should have known, that the officer or EMT was engaged in those duties.

The primary components of the charge involve two things: the lawful execution of a duty by an officer or EMT and willful obstruction by a suspect. This leads to a couple of obvious defenses. The first is in the nature of self-defense. If an officer is using excessive force or otherwise making an illegal arrest (such as on false charges) you shouldn't be convicted for resisting the unlawful arrest. Second, merely accidently obstructing an officer doesn't qualify, the obstruction must be intentional.

Assaulting an Officer

While a violation of California’s resisting arrest law is only chargeable as misdemeanor, specific acts intended to disrupt the work of a police officer might qualify as a felony under related laws. The Penal Code has specific sections dealing with assaulting a police officer, taking an officer’s weapon during an arrest, obstructing the work of other Executive Officers (including police), filing false police reports, and giving false information to a police officer.  In addition, California’s vehicle code contains two specific prohibitions on using a vehicle to evade police pursuit.

Felony Murder

Finally, California’s Felony Murder rule might allow for a murder charge if someone dies while a suspect is engaged in any felony from the above list (for example during a felony high-speed chase); even if the death was the result of an unfortunate accident.

Protecting your rights

Despite the fact that many of the violations listed above do not qualify as felonies, it’s imperative that you take such charges seriously. If you are convicted of resisting arrest, your future encounters with law enforcement might be much more difficult. It’s understandable that officers will be more cautious (or aggressive) with someone who has a history of resisting arrest and you do not want to face unnecessary police action for the rest of your life. This is particularly true in situations where police are prone to utilize racial profiling or where an officer is inclined to exercise excessive force.

If you are charged with resisting arrest or any of the other crimes we've discussed above, it’s imperative that you seek immediate legal help. Contact a qualified attorney now to avoid jeopardizing your legal rights.

Burglary

Legislative Vigilante Justice

In late January, California Assemblyman Curt Hagman retrieved his car from valet parking at a Sacramento restaurant only to find that his back window had been smashed and his briefcase stolen.  Hagman, who owns a bail bond company, made news when he took matters into his own hands by tracking the suspects to a nearby gas station using a signal broadcast from his stolen iPad. The suspects took off but Hagman got the vehicle’s plate number. Police later found and charged the individuals responsible; however, Hagman never did get back his briefcase.

The fact that Hagman was almost run over by the suspects after confronting them at the service station highlights why you should never attempt to justice into your own hands. For our purposes however, his unfortunate experience also makes a great example of the crime of burglary. Under California law, a burglary is the entering of a premises with the intent to commit either a felony or a theft therein. While this definition may seem relatively straightforward, there are actually a number of nuances in the law; not the least of which is the fact that a burglary can be charged as either a felony or a misdemeanor depending on the circumstances.

Burglary Charges

To be convicted of a burglary, the prosecution must prove that a suspect 1) entered a 2) building (or other specified premises) with the 3) intent to steal something or commit a felony. If the premises in question is a residence (meaning a place where someone lives or sleeps, even if they are not home at the time) then the crime is a felony. If the premises is not a residence (such as a shop or warehouse) than the crime can be charged as a misdemeanor.

In general, courts have been fairly willing to broadly define what constitutes both a building and what it means to “enter” that building. The gist is that anytime you cross into someone else’s premises (either with a part of your body or an object you control) you have entered that premises. You don't have to go all the way in. Simply reaching into a window or knocking something off a ledge might suffice.

The law gets a bit trickier with respect to intent. Generally, if you enter the premises in question with the idea of committing a crime planted in your mind, you probably meet the intent requirement. The crime you intend to commit does not have to take place while you are in the premises. In fact, you don't even need to actually commit the crime at all; you just have to intend to do so at the time you cross into the premises.

Proving their case

Broad as intent might be under black-letter law, proving intent beyond a reasonable doubt can be very difficult. The prosecution will have to convince the judge or jury that you had a specific idea in your head at a specific time. Because only you know what’s going on between your ears, the prosecution must necessarily rely on what we call circumstantial evidence (unless you confess). For example, if you are caught breaking into a home with a lock-pick and a bag while dressed in dark clothing in the dead of night, there is good reason to believe you intended to steal something from that home. However, if you are charged with burglary for stealing something from a store, it may be harder to prove that you entered the store with the intent to steal; perhaps you really were there just to shop for groceries and made the decision to steal on an impulse.

The devil in the details

As with any crime, the devil is in the details. In our opening example involving Assemblyman Hagman’s stolen briefcase, a clear burglary took place. It’s almost certain that the suspects broke the back window with the purpose of stealing the case. However, even if they broke the window before they even knew the case was inside, they would have committed a burglary when they reached into the car to pick it up. This is because at the time the suspect stuck his hand past the invisible line where the window used to sit; he thereby crossed into a premises with the intent to steal and thus his actions seem to meet the requirements for a burglary conviction.

Because of the possible complexities involved in a burglary prosecution, its critical to contact an attorney if you or someone you know has been charged with this crime.