Being arrested is stressful. Understand your rights when arrested, so you can stay calm and not inadvertently make things worse.
Updated October 23, 2023
The most important things to remember upon being arrested are that you have the right to remain silent and the right to an attorney. These rights can protect you only if you use them.
What Is an Arrest?
Being arrested doesn't always involve handcuffs or a cop saying "You're under arrest," although both are definitely good indicators of an arrest. An arrest occurs when a police officer takes a person "into custody," which means a reasonable person in that situation would not feel free to leave. For example, if an officer places you in the back of a cop car, you're likely under arrest. Or if an officer tells you to "stay put, and don't go anywhere," you're likely under arrest. If you don't understand what's going on, ask if you're free to leave.
An officer can only arrest a person if:
- the officer sees the person commit a crime
- the officer has probable cause (reason to believe) that the person has committed a felony (any crime punishable by state prison), or
- a judge or magistrate has issued an arrest warrant, supported by probable cause.
Even if you think the officer or judge has made a mistake regarding any of the above, resisting or arguing is NOT in your best interests. It could lead to criminal charges or bodily harm. (More on this below.)
What to Do When You're Arrested
Although many people who are arrested are taken to jail, as you can see, the arrest often begins much earlier.
Stay Calm and Know Your Rights
If you've been arrested (even wrongfully), it's important to stay calm and let the officer do most of the talking. Being hostile, making sudden movements, or arguing with the officer will only lead to more trouble. Most importantly, know your rights when dealing with law enforcement.
Remain Silent and Ask for a Lawyer
You have the right to remain silent and the right to an attorney. Take advantage of both.
Beyond turning over your identification and giving basic information (such as name and address), you don't need to say anything else. Politely tell the officer, "I wish to remain silent and I would like to talk to a lawyer." Once you have invoked your rights, be quiet. People often say, "I don't want to talk" and then they start talking, say something incriminating, and it gets used against them in court.
Don't assume that if no one reads your Miranda rights, you're in the clear to talk. The Miranda protections only kick in if police ask you questions while you're in custody. If you're sitting in the back of the squad car rambling away, everything you say can be used against you because the officers aren't questioning you.
If you can't afford a lawyer, ask for a public defender or court-appointed lawyer. In some places, you'll be able to speak with a public defender fairly soon. In others, you'll need to wait. Either way, it's usually a good idea to remain silent and wait for the public defender.
Write Down Information Regarding the Arrest
If you can, write down (or try to memorize) the arresting officer's name and badge number. Take note of the name and jurisdiction of the arresting agency.
Ask for a Phone Call
If you end up at the police station, ask for a phone call. You can ask police for a phone book or list of criminal defense attorney numbers. It's a good idea to call an attorney right away. If you decide to call family, provide only basic information over the phone and ask them to find a lawyer for you. Police can listen to non-lawyer phone calls, so you don't want to accidentally say anything incriminating over the phone.
What Not to Do When Arrested
Perhaps, most importantly, are the things NOT to do if arrested.
Don't Resist Arrest
In the overwhelming majority of situations, one does not have the right to resist arrest. The arrestee may not have that right even if the arrest is illegal. A person who uses force can be charged with resisting arrest or battery on an officer—or worse, the person can be seriously injured. Yelling at an officer, making threatening gestures, shoving, or pulling away from an officer can all be considered resisting arrest.
Don't Talk to Anyone Except Your Lawyer
After your arrest,
- don't talk to police officers
- don't talk to family or friends about your case, and
- don't talk to other cellmates or inmates.
Conversations you have with family, friends, and cellmates are not confidential. You should also assume that any conversations you have at the jail—over the phone or in person—are being recorded and monitored.
Speak only with your lawyer about the alleged offense—even if you're innocent. Your understanding of innocence might not be completely correct, and you could inadvertently say something incriminating.
Don't Consent to a Search
Usually, an officer has the right to conduct a search incident to arrest. Before an arrest, the officer may briefly frisk or pat you down for possible weapons.
If you haven't technically been arrested, an officer might ask you for consent to a search. What officers won't tell you is that you don't have to give consent. Tell the officer you "don't consent to a search." The officer might conduct the search anyway. But, by not giving consent, you might have a viable legal argument later to challenge the search and whatever was found.
Don't Offer Up Your Phone Passcode
An officer might ask you to turn over your cell phone upon arrest. While the officer can take your phone, they typically must get a warrant to search the phone. It's a good idea to lock the phone or turn it off before handing it over. In most situations, the officer can't force you to unlock your phone. Ask to speak to an attorney before turning over your passcode or unlocking your phone.
What Happens After an Arrest?
If you are arrested, a few things will likely happen.
Search Incident to Arrest
You will be searched—either at the scene, at jail, or both—and any contraband or evidence will be seized.
Booking
At the police station, you will be booked, photographed, and fingerprinted. If you're held in jail, officials will also inventory all personal items until your release. You'll remain in jail until you post bail or go in front of a judge. The maximum amount of time police can hold you is usually 48 to 72 hours. If you haven't seen a judge by then, they must release you.
In some cases, the officer may book and release you. The officer may issue a citation or ticket in lieu of holding you in jail.
Police Questioning and Miranda Warnings
At the police station or earlier, police might question you. Every person who is arrested and questioned by police must be informed of their legal rights to remain silent and be assisted by an attorney, known as "Miranda rights".
Usually, a police officer will say something along the lines of, "You have the right to remain silent. You have the right to an attorney, and if you cannot afford an attorney, one will be appointed for you. If you waive these rights and talk to us, anything you say may be used against you in court. Do you understand these rights?" Some police departments will ask a person to sign a written Miranda waiver before talking. It is almost never a good idea to waive your Miranda rights. Tell the officer that you wish to remain silent and would like to speak to an attorney.
Obtaining Legal Assistance
Being arrested is stressful. Oftentimes, people just want to get out of jail and think that if they just explain the situation or cooperate, the police will let them go. Police officers may even say something to that effect. Do not try to talk your way out of jail, or make any decisions about your case, without first talking to a lawyer. Do not participate in a lineup, or do anything else with regards to your case, until you see a lawyer. If you can't afford a lawyer, ask for a public defender.
