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YOU ARE UNDER ARREST...MAYBE

Criminal procedure is a complicated area of law that is always evolving and changing, making it quite difficult for the average American to know his or her rights. This is unfortunate because the few minutes after a police officer pulls you over or after you are arrested could determine your options later. It doesn't help to find out what you should have done later from your attorney. It would be equally unhelpful for me to try to teach a class here for you to read. Therefore, you should consider this the beginning of an intermittent series designed to provide you with various basic rules. It is my hope that these rules will empower you and make you feel safer in uncertain times.

Remember that these rules are subject to change and may be different based upon your situation. If you have questions, contact an attorney as soon as possible.

The Arrest

The first basic rule concerns the power of a police officer to arrest. One can only be arrested when probable cause exists. This begs two questions: What is an arrest? And what is probable cause?

An arrest occurs when a person reasonably believes he is not free to leave. The factors that a court will consider in deciding whether a person believed he was free to leave or not will vary by state and may include the length of time you are detained and if the officer actually tells you that you are under arrest among other things. Determining when the arrest occurs is potentially very important. A person under arrest is automatically protected by Constitutional constraints on what the government can and cannot do.

A short definition of probable cause is a reasonable belief that a person has committed a crime. Many think a police officer needs a warrant to arrest but this is not always the case. A police officer may be able to get probable cause quickly and without a warrant. The requirement of probable cause for arrest comes directly from the Fourth Amendment of the United States Constitution.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These are seemingly simple terms but being able to correctly apply them to your situation may be critical. If you have questions about your own criminal case, contact one of our experienced criminal law attorneys.

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