Arrest & Interrogation Legal FAQs

An arrest warrant is a document that authorizes police to arrest a person that they suspect has committed a crime. A magistrate will issue an arrest warrant if a police officer submits a sworn affidavit showing probable cause that a specific crime has been committed by the person named in the warrant.

Yes. Typically, if a police officer has probable cause to believe that a crime has been committed, the officer may make an arrest without an arrest warrant. There are two exceptions to this general rule. First, absent exigent circumstances, officers must obtain an arrest warrant before arresting a suspect in their home. Second, most jurisdictions require an officer to obtain a warrant to arrest a suspect for a misdemeanor offense, unless the misdemeanor was committed in the officer's presence.

If an arrest warrant was required and was not obtained before the arrest, or if the arrest warrant was issued without a showing of probable cause, a suspect may contest the validity of the arrest. A person will not be set free because their arrest was illegal. An illegally arrested person may, however, argue to exclude from their trial any evidence found during a search incident to the arrest or any statements made to police after being arrested.

When making a lawful arrest, an officer may use force that is reasonable and necessary to overcome resistance. An officer may not use excessive force if it is not warranted under the circumstances.

Those who have been arrested have a number of rights after arrest, including:

• The right to know what charges have been brought against them.
• The right to be told the identity of arresting officers.
• The right to communicate by telephone with an attorney, family, friends or a bondsperson.
• The right to remain silent if questioned by police.
• The right to be represented by an attorney before speaking with police.

A Miranda warning is an admonition given by police advising people of their constitutional right to remain silent and to have an attorney present before answering any questions or making any statements. Miranda warnings are given as a prophylactic measure to protect a criminal suspect's Fifth Amendment right to avoid self-incrimination.

Miranda warnings are required when a person is in police custody and when they are subject to police interrogation.

A person is "in custody" when they have been stopped by police and they do not feel that they are free to leave. A person may be in custody without being arrested.

Police interrogation occurs any time police officers question a person, or make a statement meant to illicit a response from that person. Thus, a person who is arrested need not be given Miranda warnings immediately if they are not subject to interrogation.

Suspects may invoke the right to remain silent by telling officers that they do not wish to answer any questions, or that they wish to say nothing until their attorney is present. If an officer continues to ask questions, the suspect's Fifth Amendment rights have been violated and any statements elicited from the suspect are inadmissible in court.

No. A suspect's decision to remain silent is not relevant to a suspect's guilt and may not be considered by a jury in a court of law.

Yes. A suspect may waive the right to remain silent and choose to speak to police officers. A suspect's silence does not constitute a waiver. Rather, a suspect must indicate explicitly that all Miranda rights have been waived. After the waiver has been given, all statements made by the suspect may be used in evidence against them.