If you are arrested by the police, then you will go through what is known as the arrest process. These are the steps in which police officers take before, during, and after placing you under arrest. Sometimes steps are skipped or performed incorrectly, which may be the basis of a legal challenge to suppress evidence in court. This may mean that evidence such as a statement, drugs/CDS or a weapon will not be admissible in court. An arrest is defined as the moment when a police officer takes you into custody and you are no longer free to leave. During the arrest process, there are several steps that the officer must take. Here are the steps in the arrest process:
If an officer is suspicious of your behavior, they may approach you to question you and your activities. This does not qualify as an arrest or an interrogation.
In order to place you under arrest, the officer must first have a reason (probable cause). A police officer will arrest you under the following circumstances:
- You are performing illegal activities
- The officer has probable cause
- A warrant is out for your arrest
If you or your loved one has an arrest or a bench warrant, it is important to consult a criminal defense attorney before the arrest. There may be grounds to file a motion to recall the arrest or bench warrant and possibly avoid an unnecessary arrest.
When the officer has probable cause, they will place you under arrest. If you are in custody and the officer questions you, they should read you your Miranda Rights, which you may have heard before. The Miranda Rights are:
- 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 an attorney.
- If you cannot afford one, one will be provided for you.
- Do you understand these rights I have just read them to you?
If the officer does not read you your Miranda Rights, then you may have a legal challenge if the Prosecutor attempts to introduce a statement against you in court.
At the first opportunity upon learning that you are being investigated by the police or are actually under arrest, ask for an attorney. Blackford & Flohr, LLC’s attorneys are available both after hours and on weekends. If you do not reach us at our office, our outgoing voicemail messages have our cell phone numbers.
The officer will also probably perform a pat-down, in which they check for weapons, evidence relating to a crime, and drugs. They may confiscate any items on your person for holding at the police station.
At this time, the officer will take you to the police station for holding and questioning.
This is another opportunity to ask for a criminal defense attorney. Failure to provide you access to an attorney may provide you the basis for a legal challenge in court.
At the station, you will be asked to sign an inventory list, which contains a list of items which were taken from you during your arrest. These items can include:
- Your ID
- Gum or other “pocket-sized items”
- Any other items which were on your person during your arrest
You must sign this inventory list or you will not receive the items when you are released.
Sometimes, during the holding process, you will be kept in the police station for questioning. You may ask the officer if you have been officially placed under arrest. If the officer answers “yes” then you may not leave. Conversely, an answer of “no” implies you are not being forcibly held and have the right to leave at any time. If you are able to leave, you should do so. It is virtually never in your interest to speak to the police without consulting a criminal defense attorney first. Many, many inmates are serving time but thought they could “explain” the situation or talk their way out of it. You have a constitutional right to remain silent. If there is any doubt about this, it is better to check with a criminal defense attorney first.
If you are able to make a phone call to a family member, you should ask that they call a criminal defense attorney immediately. You will be taken to a Commissioner Hearing where your initial bail will be determined. You have a right to an attorney at the Commissioner Hearing.
It is highly recommended that you have an attorney present prior to, during, and after questioning to prevent self-incrimination. Self-incrimination is when you say something that can and will be held against you in a court of law (the first Miranda Right). You may say at any time that you wish to speak to a lawyer and refuse to answer any further questions. You must be clear on this. If the officer has any doubt that you are demanding an attorney at that moment, they will likely continue questioning you. A simple and clear request that you want an attorney right now and you do not wish to answer any questions is certainly the smartest move you can make in this situation.
Once your attorney arrives, you’ll have time to speak with them and discuss the situation. Your attorney may speak for you to remove any chance of self-incrimination.
If you are to be released after questioning, you will not need to go through the booking process. During the booking process, the officer will likely request personal information for their system. They will ask for:
- Date of Birth
The officer will also perform a background check to see if you have any warrants for your arrest in other states on any charges. They will also check for any outstanding tickets and fines. If anything is found, the officer may hold you further and charge you with these to increase the likelihood of your arrest. This background check is done off of your fingerprints. It is foolish to lie about your name and/or address in the hopes the police will not find out about any trouble you have had in the past. The Commissioner and/or Bail Review Judge may use false information to increase your bail conditions. You may also face additional charges if you provide false information.
You will be placed in a cell and all of the information gathered from the process thus far will be uploaded to the police’s computer system. The information is automatically pulled down by the FBI, NSA, DOD, and other government agencies that require access to your personal history. Generally, these agencies use this as a part of their background checks when you are looking for a government job.
In some counties in Maryland, a Prosecutor will review your case and determine which, if any, charges are to be filed. They may also make a request regarding your release conditions.
Typically, the arresting officer will make the initial charging decision. They will then fill out an Application for a Statement of Charges to present to the Commissioner.
During processing, you will be placed in a jail cell to wait for charges to be filed.
Depending upon the charge, you may be released by your arresting officer (DUI charges for example). If you are taken to a Commissioner, they will determine whether you will be released on your own recognizance (ROR) or a bail is to be set. A criminal defense attorney can and should represent you at this Commissioner Hearing and can help present argument on why you should be released. In addition, an attorney can be helpful at arguing for the type of bail that is set. In addition to the corporate surety bond (which requires a bail bondsman), the Commissioner has the discretion to set a 10% bond or an unsecured bond. A ten percent bond means that instead of paying the bail to the bail bond company, you pay bond to either the Commissioner or the Court Clerk. As long you make all of your court appearances, you will receive the 10% bond back (less some administrative fees) at the conclusion of the case. If an unsecured bond is set, then no money changes hands. Instead, a pledge is made by either the family and/or the Accused to pay a certain amount of bail if the release conditions are not met.
Bail Review Hearing
If bail is set by the Commissioner, you have a right to a Bail Review Hearing in front of a District Court Judge. Even if you did not hire a private attorney for your Commissioner Hearing, it is still important to make sure you have an attorney at the Bail Review Hearing. In some Maryland counties, in addition to a Prosecutor, there will be a Pretrial Release representative involved at this stage. A Pretrial Release Agent will often make a recommendation to the Judge about whether you will be released. Pretrial Agents may call the family to see if an Accused is welcome back in their home, ask how long they have lived there, whether anyone is in fear of them, and whether they are working. Just as a criminal defense attorney can argue for release and bail conditions at the Commissioner Hearing, so too can they assist at the Bail Review Hearing.
Right to a Speedy Trial
Thanks to the Sixth Amendment, you have the right to a speedy trial. The key to success in court is preparation. You want to hire an attorney who is willing to go to trial and will prepare for it. Some law firms follow a model of low fees, high volume and getting in and out of court as quickly as possible – which is taking a plea. It’s not that a plea might not be the best course for you. However, you or your loved one has a right to have your case analyzed by someone who is willing to go to trial.
Whether you think you are guilty or plan to plead guilty, you should still consult an attorney. An attorney can assist you even if you plan to plead guilty. They can assist you in obtaining the best sentence possible and may also influence what charge you plea guilty to. There are also important post trial rights such as a motion to reconsider sentence.
Even if you have not been formally charged, a criminal defense attorney can assist you on issues of bail, release and possibly even what charges you will face. An attorney may help in whether you are charged by arrest warrant or summons. The earlier an attorney gets into a case the better.