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Are You Under Arrest?

What constitutes and arrest and what are your rights.

Under Arrest by The Police? What is an Arrest and What are Your Rights?

“You’re under arrest!” We often see arrests on TV and see it depicted in movies. And if you have ever had those words spoken to you by a law enforcement officer, you know how ominous and chilling they are. But most people do not realize that the police power of arresting people can only be used when numerous legal elements have been met. Even more confusing, police can legally detain people without actually arresting them.

Probable Cause to Arrest.

In strict legal terms, being put under arrest occurs when a person, called the arrestee, reasonably believes he or she is not free to walk away or depart from a law enforcement officer that he or she is talking to or is in the presence of. Police must have probable cause to make an arrest. This requirement comes from the 4th Amendment to the U.S. Constitution and from Article I, Section 7 of the Washington State Constitution. Probable cause to arrest someone exists when certain facts and circumstances that are within the police officer’s knowledge would lead a reasonable person to believe that the arrestee has committed, is committing, or is about to commit a crime. Probable cause must come from specific facts and circumstances, rather than simply from the officer’s hunch or suspicion.

Police officers usually tell the arrestee that they are being placed under arrest. However, the law does not require the words “you’re under arrest,” to be said. After an arrest, police may handcuff an arrestee or place them in a patrol car, which is legally enough restraint to comprise an arrest.

An Arrest Triggers Important Rights.

The police can search and question an arrested person. Arrestees are also entitled to certain important rights under the Federal and State Constitutions and Washington State Law designed to protect citizens from being treated unfairly. All persons under arrest have Miranda Rights, which include the right to remain silent and the right to an attorney when being questioned by the police. Under Washington law, the police do not need to go over Miranda unless they are actually questioning an arrestee.

You Just Got Arrested, Now What?

Most arrests will lead to a person being charged with a criminal offense. Police have authority in Washington State to directly charge arrestees with criminal misdemeanor offenses. When this happens, the arresting law enforcement officer will issue a criminal citation directly to the arrestee. State law also permits police to book anyone arrested for a misdemeanor or a felony into jail, but often people get arrested, they are handed a criminal citation with a mandatory date on which they must appear in court, and they are released. In some cases, an arrestee may be released without a citation, and might receive a citation and a summons to appear in court in the mail. If the arrest is for a felony offense, the law may require that the arrestee be taken to jail.

Was is a Detention?

Police can place a person into handcuffs or restrict the person’s ability to freely leave the scene, but it does not constitute a full-blown arrest. If police have a reasonable belief that the person they are dealing with is dangerous, or has weapons, or may be in possession of contraband or evidence, police can briefly and reasonably “detain” someone for investigation.

Detentions do not require probable cause. Temporary detentions only require “reasonable suspicion”. This includes car stops, pedestrian stops and detention of occupants while officers execute a search warrant. “Reasonable suspicion” means specific facts that lead a reasonable person to believe criminal activity was at hand. Sometimes detentions can ripen into arrests, and the point where that happens is not always clear. Often police will intentionally not tell a detained person what facts they know. Police may use the detention to conduct a pat down for safety reasons, only to find incriminating evidence. The police may then have enough evidence to formulate probable cause to arrest and to make out a criminal charge against the person, after this is done.

I Got a Ticket for Speeding? Am I Under Arrest?

No. Police can stop you for any traffic infraction if they have reasonable articulable suspicion that a traffic violation occurred. Examples are speeding, making an illegal lane change, or having a tail light out. Traffic violations are not criminal offenses, rather they are civil infractions carrying only the potential for a fine. Infractions also do not carry any possible jail time.

The law also allows a reasonable period of detention on a traffic stop. This allows police to check driver’s licenses and insurance, and to issue applicable traffic infraction citations, or give a warning. Sometimes when a person is stopped for speeding, it leads to an arrest for other offenses, like DUI or driving with a suspended license. The law gives officers wide latitude to use detentions to gather evidence leading to a criminal arrest.

Other Police Encounters.

Not every encounter with police is a detention or an arrest. The law recognizes social contacts between police and citizens as well as welfare checks and the community care-taking function. Police can approach citizens and ask about a person’s well-being without it being an arrest or a detention. Likewise, citizens can tell police that they do no desire to speak to or have any contact with the police.

What to do if Arrested?

The American Civil Liberties Union has published a very well-stated arrest checklist on arrests and detentions. Learn more about the ACLU. Do not resist or argue with police. Remain calm and clearheaded. Stay calm and in control of your words, body language, and emotions. Always remember that anything you say or do can be used against you. And above all, ask for a lawyer immediately upon your arrest.