Rights During Arrest

Contents

• What are the different types of arrests?
• How is an arrest different from a police stop?
• What are my rights during an arrest?
• What are my rights when being questioned by police?

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What are the different types of arrests?

You are under arrest when you are either:

• Verbally told you are under arrest, or

• Your freedom of movement is deprived for more than a brief period. For example, you are being arrested if you are taken to a police station for questioning without your consent. This is true even if the officer has not told you that you are being arrested. If you are not free to leave, you are under arrest.

 

Arrests are usually made by an authorized person, such as a police officer or sheriff. These officials may arrest with a warrant or, under certain circumstances, without one. A warrant is a document giving authority to do something-in this case, arrest.

 

Arrest with a warrant

In most cases, police must get a warrant before an arrest. To get a warrant the police or a private citizen must make an affidavit before a judge. In Georgia, an affidavit must contain information about:

• the person to be arrested,

• the offense said to have been committed,

• the date and time it was committed,

• the person against whom the offense was committed, and

• the place of the offense.

 

The evidence presented in the affidavit must be convincing. The judge issuing the warrant must find probable cause to believe that the accused committed the offense. Probable cause means that there is more than a mere suspicion. There must be evidence that would lead a reasonable person to suspect that the person committed the crime.

 

An arrest can be legal even if the police are wrong about your guilt. The police do not have to be right. They only need to have probable cause to believe you committed a crime.

 

Arrest without a warrant

In Georgia, police can only arrest you without a warrant in four situations:

1. When the offense is committed in the officer's presence or with his or her immediate knowledge,

2. When an offender is attempting to escape,

3. When there is probable cause to believe an act of family violence has occurred, or

4. For such other cause if there is likely to be a failure of justice because a judge is not available to issue a warrant

 

Citizen’s arrest

A private person can only make a citizen’s arrest if they see another person committing a crime. A citizen's arrest occurs when a citizen prevents a suspect from leaving a scene. Citizen's arrest most often happens in cases like shoplifting, when the store's manager detains the suspected offender.

 

When making a citizen's arrest, a person may not use more force than is reasonable to make the arrest. 

 

The right of private citizens to make a citizen's arrest is limited. They cannot arrest people for violating local ordinances or regulations because these violations are not technically crimes as defined by state law. A private person cannot make a citizen’s arrest for something like a noise violation. 

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How is an arrest different from a police stop?

A police stop happens when an officer uses enough force or show of authority to make a person feel like they cannot leave. An officer must have reasonable suspicion to stop you. They must only briefly question you in the place where they stopped you.

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What are my rights during an arrest?

You have rights during an arrest. 

 

You have the right to be treated humanely. Police cannot use “excessive force” when arresting you. What counts as excessive depends on the circumstances and the “use of force” laws where you are arrested. By law, in Georgia, a law enforcement officer can only use as much force as necessary to make the arrest.

• Deadly force may only be used to apprehend a suspected felon:

  • when the officer reasonably believes that the suspect possesses a deadly weapon; 

  • when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or

  • when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.

 

Your other rights during an arrest include: 

• You have the right to ask for identification.

• You have the right to be told what crime you are being charged with:

  • If there is a warrant it should include what crime you are being arrested for.

  • If you are being arrested without a warrant, you have a right to be told what crime you are being arrested for. 

• You do not have to consent to any search unless there is a search warrant. You do not have to invite police officers into your home or allow them to search your car.

  • However, even without a warrant, police are allowed to search some areas when they make an arrest. This is to protect to officers, prevent escape, and stop a suspect from destroying evidence. This kind of warrantless search is called “Search Incident to Arrest.” The areas the police are legally allowed to search are:

    • The person who is being arrested,

    • The area within the arrested person’s reach.

• You can ask for the officer's name and badge number.  If your request for information is refused, note the information you can see, and file a complaint later if you feel your rights have been violated.

• You have the right to not speak. You do not have to answer any questions or speak to officers. 

• Once you are arrested, you have the right to make a phone call.

 

A note about resisting arrest: Do not resist arrest. Resisting arrest might be unsafe and can  result in additional charges against you. This is true even if:

• The arrest itself is unlawful, or

• You are innocent.

 

Talk to an attorney if you believe you were unlawfully arrested.

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What are my rights when being questioned by police?

If you are arrested, before you can be questioned, the arresting officer should give you a Miranda warning. A Miranda warning is to inform you of your constitutional rights. 

 

A Miranda warning must be given once you are in custody (or not free to leave), even if you haven’t been formally arrested. The Miranda warning tells you some of your rights when you are being questioned by police. Even if the officer does not tell you your rights, you still have them. 

• You have the right to remain silent.

• Anything you say can and will be used against you in a court of law.

• You have the right to talk to an attorney and have him present with you while you are being questioned.

• If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning if you wish.

• Even if you agree to talk, you can still stop an interview at any time.

 

You may be asked to waive your Miranda rights so that police can question you without an attorney. You do not have to waive those rights. 

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Contents

• How can I claim my right to remain silent during police questioning?
• What happens if I am not given a Miranda warning?
• What can I do if my rights are violated during an arrest?

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How can I claim my right to remain silent during police questioning?

In general, you must tell the police who are questioning you that you are choosing to remain silent. If you do not tell them, they can legally continue questioning you. You are allowed to claim your rights at any time during an interrogation. Even if you’ve already answered questions, you can stop the interview and assert your rights.

 

If you wish to stop an interview and assert your right to remain silent, you should tell the officer:

• You do not want to talk,

• You want to speak to an attorney, and 

• You are claiming your Miranda rights.

 

Be careful about talking to the officers after you claim your Miranda rights. Police may legally be able to question you if you re-start the conversation.

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What happens if I am not given a Miranda warning?

Not getting a Miranda warning is not a defense to a crime. But, if you do not get the Miranda warning before being questioned by police, any statement you make could possibly be excluded at a trial. 

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What can I do if my rights are violated during an arrest?

File a complaint with the police department

If your rights are violated during an arrest you can file a complaint with the agency where the officer works. In the moment when your rights are being violated, try to remain calm. Your safety is the most important thing. Take note of information that you can use when filing a complaint later, including:

• The officer’s badge number, name, and any information about the agency they work for.

• If there are witnesses, including anyone who filmed or photographed the violation.

• If you are hurt during the incident. Document any injuries.

 

Once you feel safe, file a written complaint with the agency where the officer works. You can find the contact information for a law enforcement’s internal affairs or civilian complaint board on the department’s website. 

 

File a private lawsuit

Depending on the violation, you may also be able to file a lawsuit against the police department. These kinds of lawsuits are complicated, so you should consult an attorney to talk about your case.

 

For example, if you have been discriminated against by law enforcement based on race, color, national origin, sex, or religion you may be required to file a civil rights complaint with the Department of Justice before you can file a private lawsuit. If this is the case you will have to file the complaint within 180 days of the incident. However, if you have been discriminated against by law enforcement because of a disability, you do not have to file a complaint with the DOJ first. 

 

It is wise to consult a civil rights attorney to understand your rights and obligations. 

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