What is an arrest and when does it occur?
The word arrest can be scary for most people, regardless why. So many things start going through the arrested person’s mind, depending on where they were and who they were with. Being under arrest or detained at work, at home, at a traffic accident, and if your kids are with you, what are thinking? You’re scared, imagine how a child feels when they don’t understand what’s happening.
For something minor, you have to wonder was an arrest necessary, is an arrest not mandatory? Can law enforcement arrest without warrant? So many questions, so many concerns, that small word, arrest. It can create a lot of issues, but then if you weren’t doing something against the law, it wouldn’t be an issue, right?
An arrest is happening when law enforcement says, “You’re under arrest”, but the actions an officer can take are considered an arrest too. The determining factor of when somebody is being placed under arrest will be if evidence was seized or any statements made that will be admissible in a trial. A court will consider any of the following four factors to determine whether a person has actually been arrested:
1. A Reasonable Person Doesn’t Feel Free to Leave
The extent to which a person’s freedom of movement is curtailed by what degree and manner of force is used.
2. Physical Restraint is Not Required for an Arrest
Physical restraint by law enforcement is definitely considered being arrested, as to the words “you’re under arrest”, there are other forms of arrest that expressed statement and physical restraint are not included.
3. A Show of Force by Law Enforcement
Seizure justified by specific standards can become an arrest that may require probable cause if other than momentary. An example when an accused is ordered to halt and lie face down, would amount to an arrest, not temporarily detained.
4. Passage of Time Converts Detained to an Arrest
The accused believes being detained for a period of time, not free to leave, could consider they are under arrest without force.
What do they say when they arrest you?
Usually, law enforcement will state something to the effect of “You’re under arrest. 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 can and will be used against you in court.” Sometimes, the first sentence may be “You’re being arrested for ……” with the reason of the arrest stated and then remaining part of that about an attorney, any you say, etc., etc.
What happens when you are under arrest? And What is the arrest procedure?
Being placed under arrest is scary and what takes place from your arrest to sentencing process can be confusing. Each city, county, state may have some different procedures. The cause and the timing of the arrest can vary as well, but these are the basics when a person is placed under arrest:
- When a person is stopped or approached by law enforcement, they maybe frisked by the arresting officer. This is often referred to as a “pat-down” where the officer pats down over the arrested person’s outer clothing in search of concealed weapons or other illegal matter like illegal drugs or paraphernalia, contraband, stolen items, or crime evidence. A complete search will typically take place once the person is being booked into jail.
- If the arrest happens after a traffic stop and the arrested person was driving, the vehicle is impounded.
- Once at the police stating, any personal property like jewelry and money are taken and secured, tagged with name, date, and case number or inmate number. The arrested person is asked to review the items and sign a statement of inventory if all contents appear to be what was on their person.
- After the arrest, the transport to jail, the personal items removed and inventoried, the person is then booked where the arresting officer or clerk will ask basic personal information such as name, address, and date of birth. The person is then fingerprinted and photographed.
- If the person is being arrested under suspicion of a crime, they may be asked to join a line-up. This is when a victim or witness is asked to identify a person that accosted, robbed, raped, or as part of a criminal act. A handwriting sample may be requested as well.
- If a person is detained without being formally charged or booked within a reasonable time, a lawyer can request a writ of habeas corpus by a judge. This instructs the law enforcement agency to present the person before the judge and a determination will be made whether charges should be filed, or the person is free to go.
The Process Post-Booking Process
- After the arrest and booking is completed, the prosecutor is given the case and a decision is made from that office what charges are to be filed and pursued. The arrested person is guaranteed a right to a speedy trial under federal law. This gives the prosecution office 48 to 72 hours to file charges or release the person.
- Next, and arraignment is held. This is where the arrested person hears the charges being filed against them and they are giving the opportunity to state if they plead guilty, not guilty, or no contest.
- The arraignment judge will then either set bail, deny bail, or in some cases, release the person based on evidence and situation. A court date will be set, and the arrest person will be required to be present, with or without their attorney. (With an attorney is always recommended).
Is Resisting arrest a misdemeanor or felony?
Currently, in the state of Florida, resisting arrest without violence, the conviction is a first-degree misdemeanor with a maximum penalty fine of $1,000.00 and up to twelve months in jail. Resisting arrest with violence, the conviction is a third-degree felony with a $5,000 maximum fine. If resisting arrest conviction is upheld, the penalty could be five years in prison or a maximum of five years on probation.
Arrest is not a word that anyone wants to hear, as related to themselves or anyone they know. It is a dramatic time that changes a person’s life as well as those around them. Seeking the advice of a criminal attorney should be the number one step taken when a person has been arrested. There are going to be many things that having an attorney present and representing can clarify and make sure the arrested person’s constitutional rights are honored and upheld. Call 727-571-9999 today for your bail needs.