What to Expect in an Arrest
An arrest occurs when law enforcement believes they have probable cause to show that a crime has been committed. The United States Supreme Court has held that if probable cause does not support an arrest, the arrest is unreasonable under the Fourth Amendment of the Constitution. Michigan v. Summers, 452 U.S. 692, 700 (1981).
Probable cause exists where facts and circumstances in the law enforcement officer’s knowledge, of which they had reasonably trustworthy information, are sufficient in themselves to warrant an individual of reasonable caution to believe that an offense has been or is being committed. Brinegar v. U.S., 338 U.S. 160, 175-176 (1949). Generally, it does not take a great deal of evidence for law enforcement to find probable cause exists during an investigation. (Even if probable cause exists, this does not mean a person is guilty of any crime. This requires proof “beyond a reasonable doubt.”)
The law enforcement officer may make an arrest in one of two ways. The officer can cuff the suspect and take him or her straight to the county jail for booking. Or, the officer can issue a Notice to Appear, which requires the suspect to attend court at a future date and time. If the officer elects to issue a Notice to Appear, he or she will then release the suspect at that time.
Law enforcement has the discretion in most misdemeanor cases to decide when to issue a Notice to Appear or take a suspect to jail for booking. However, law enforcement has no discretion to issue a Notice to Appear in felony arrests. All felony arrestees are taken to county jail. Also, if law enforcement issues a warrant, the officer executing the warrant has no discretion to issue a Notice to Appear and must take the suspect to the county jail upon arrest.
When law enforcement has the discretion to issue a Notice to Appear, there is no way to predict when a law enforcement officer will choose one method of arrest over the other. Therefore, to the extent a suspect chooses to respond to the police officer’s inquiries, he or she should be polite and respectful throughout the investigation. Even if law enforcement proceeds to make an arrest, one’s pleasant demeanor may influence the officer to issue a Notice to Appear so that the suspect can avoid the headache of county jail. In the event the law enforcement officer decides to take the suspect to the county jail, the suspect’s pulling away from the officer, or otherwise resisting the arrest, can lead to additional criminal charges.
Any statement a suspect makes to the officer may be used as evidence. The suspect may choose to exercise the right to remain silent throughout the arrest and the car ride to the county jail. The law enforcement officer has authority to videotape the suspect during the drive. Even if the officer leaves the vehicle, a video recording may still be running. During the car ride or when left alone in the vehicle, the suspect should not say anything that he or she would not want the prosecutor to broadcast to a judge and jury.