When do the police need a warrant to make an arrest?
As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a non-serious offense -- such as a simple assault -- and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public
If I'm arrested, do the police have to "read me my rights"?
No. However, if they start questioning you but haven't read you your rights, they can't use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect: This is somewhat confusing because too many people believe that Just because the police did not read you your rights that anything you say will be excluded from evidence against you. Not exactly true:
There are two requirements that must both exists before Miranda Warnings are necessary
(1) You, or the suspect, the alleged offender, the accused must be in custody.
This in and of itself is confusing, because what exactly does "custody" mean? There have been so many cases {Jurisprudence} on this very topic that it would take a life time to read all of the case law. Bottom line & in a very brief nutshell, a person is in actual police custody for the onset of Miranda to kick in if an average person under the same or similar circumstances would feel that he/she is not free to leave.
Having said that, it is not necessarily a requirement that the accused be
{a} Handcuffed
{b} even @ the police station
{c} you do not have to be under arrest
in fact custody can and has occurred at a person's own home. The courts look @ each case on an individual basis and make the decision of whether a person is "in Custody" for the purposes of Miranda based on the "totality of the circumstances.
Some factorrs to be considered in determining the totality of the circumstances are"
This list is in no way exhaustive:
(1) Did the person voluntarily go to the police station to answer questions- if so less chance of actual custody, however once @ the police station was the person free to leave or free to cease answering questions at anytime, if so then less chance of custody. However given the circumstances would an average reasonable person feel that he was not free to leave , even though he was free to leave? then more likely the courts will hold "in custody"
(2) How Long was the person questioned, was he free to use the restroom, get a soft drink, make phone calls- probably not custody
(3) Did the police give the person the impression that they HAD to come to the police station- then more likely Custody
(4) was the person threatened or intimidated by police, whether the questions occurred on the street, at the police station , or in the persons home? how many police involved, if a large number of uniformed police present and guns drawn- custody
again, I stress, each case much be determined on an individual case by case analysis
THE SECOND PART OF THE TWO PART PRONG
(2) Interrogation
are the police asking questions in an interrogating manner. Or better said, are the questions designed to illicit an incriminating response, if so then this is interrogation, if not and the questions are just basic fact gathering questions such as "what is your name? Where do you live?
Probably not going to be held by a court to rise to the level of interrogation
so you need
custody + interrogation = CUSTODIAL INTERROGATION
WITHOUT THE ABOVE, MIRANDA DOES NOT KICK IN
HOWEVER, ONCE A PERSON UNEQUIVOCALLY ASSERTS HIS 5TH AMENDMENT RIGHT TO NOT ANSWER QUESTIONS, ONCE A PERSON ASSERTS HIS 6TH AMENDMENT RIGHT TO AN ATTORNEY---ALL QUESTIONING MUST IMMEDIATELY STOP AND IF THE POLICE INITIATE QUESTIONING AGAIN, WHATEVER IS SAID IS INADMISSIBLE IN A COURT OF LAW
Of course, just as with every law of criminal procedure there are multitude of exceptions. This is far too extensive of a topic for em to even begin to cover all of it, I am merely sharing the very bare bone minimum basics:
EXCEPTIONS:
(1) If the accused is the one who initiates the resuming of the talk
(2) If the accused is not unequivocal is asserting his rights:
{a} I want a lawyer......questioning must stop
{b} I think maybe it would be a good idea if I spoke to an attorney ...not enough to require questioning to stop
NONE OF THE ABOVE OR BELOW INFORMATION IS IN ANY WAY A SUBSTITUTE TO THE URGING THAT IF YOU ARE EVER QUESTIONED BY THE POLICE. ALWAYS ASK FOR A LAWYER AND REFUSE TO SPEAK UNTIL YOUR LAWYER ARRIVES OR UNTIL ONE IS APPOINTED FOR YOU. NO MATTER WHAT THE POLICE SAY, DO, OR PROMISE.
NEVER FORGET THAT THE POLICE ARE PERMITTED BY LAW TO USE TRICKERY TO GET YOU TO TALK
- You have the right to remain silent.
- If you do say anything, what you say can and will be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.
