What to Do If You’re Arrested

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You may be stopped or detained without being arrested

A law enforcement officer may ask you to identify yourself or question you briefly without arresting you. If the officer has reason to believe that you are carrying a concealed weapon and that you may be dangerous to the officer or others, the officer may conduct a limited search for their safety. If this search reveals what feels like a weapon, the officer may search for and remove the object. The officer must return any lawful object found unless you are placed under arrest. The search is limited to objects that seem like weapons. You may have a constitutional right not to answer questions that an officer asks. Nonetheless, it is advisable to provide your name, address, and identification if so requested. At the conclusion of questioning and the search, the officer must either arrest you or release you.

A police officer can use force to arrest you

An officer may use any reasonable force necessary to arrest you and to keep you under arrest. Never resist the officer and never interfere with an officer if someone else is being arrested.

Communication with relatives, friends, or a lawyer

Once taken into custody, you should be given an opportunity to consult in private with a lawyer if you wish. You may be allowed to communicate with friends and relatives, but that is not a right.

You can be searched

When you are lawfully arrested, you can be searched. Also, the immediate area of the place of the arrest may be searched. Law enforcement officials do not have the right to conduct a general search of the surrounding area without a search warrant. If you were arrested while in a vehicle, the vehicle and containers may be searched without a warrant. A more thorough search may be made without a search warrant if the police have reasonable grounds to believe that the vehicle contains articles that they are entitled to seize. The vehicle may be impounded and an inventory made of its contents. A search may be made at any time if you
consent. If asked to sign a consent form, read it carefully to be sure that you understand what you are permitting. You do not have to give or sign a “consent.”

When a warrant is necessary

A search warrant is an order in writing, signed by a judge, directing a police officer to search a certain place for evidence and to bring it to court. The warrant must specifically describe the place to be searched and the property to be searched for and seized. A police officer is required to show the search warrant and to give notice of authority and purpose before making a search. You may ask to see the warrant or the officer may retain it, but a copy must be given to you after the search. An officer with a warrant may break in if you refuse to admit the police officer after receiving notice, or under other unusual circumstances. Anything unlawfully seized by the police may not later be used as evidence against you if you were entitled to privacy in the item. It is important to remember and tell your attorney the details about any search of your person, property, or car. 

Fingerprints and line-ups

If you are arrested, the police have the right to take your fingerprints and photograph. You may also be required to participate in a line-up, to provide a sample of your handwriting, to speak phrases associated with offense or to have samples of your hair taken. You may insist that an attorney be present.

Questioning

You have a constitutional right to remain silent. This is a very important right and you cannot be punished for remaining silent or have your silence used against you. Constitutional rights can be waived (given up). Before you say or sign anything, consider carefully what you want to do. Anything you say may be used against you in a court of law. If you do answer a question, you may stop at any time and not answer any further questions. You have a right to talk with an attorney before answering any questions. You have a right to have an attorney present if you decide to answer questions. If you cannot afford to hire a private attorney, an attorney will be appointed for you before any further questioning takes place, at your request. If you requested an attorney,
questioning must stop until your attorney is present.

When you go to court

If you are not released from custody on a bond, you will be brought to court to have bond determined. If you are released, you must appear in court at the time and place specified. Your first court appearance after your arrest is called an arraignment. In court the judge should tell you what you are charged with and advise you that you are not obligated to say anything, and anything you say may be used against you. You should be advised that you are entitled to a lawyer, and, if you cannot afford one, you will be advised that one will be provided for you. If you do not have a lawyer and are not familiar with the name of a lawyer, you may call the State Bar Association for the name of a lawyer on the local referral list. If you are still in custody when you are brought to court, and you were arrested without a warrant, you have the right to ask the judge to release you on bond, or simply on your sworn promise to reappear when required. The judge can order you released on a promise to appear, a non-surety bond, or a surety bond. The judge can also order you released if you deposit money equal to 10% of the amount of bail with the court clerk. You will get most of this money back if you appear in court; the judge may feel this enough reason to make you appear is court. If you are charged with a felony, you have the right to a preliminary hearing within 12 days. You may demand such a hearing, or waive it. Prior to making any decision you should consult with an attorney.

Release after arrest

If you are arrested for a misdemeanor (a crime in which the possible penalty is one year or less in jail) the police officer may give you a written complaint and summons and release you on your promise to appear in court on a specific date. If you do not appear in court, a bench warrant will be issued for your arrest, and you can be prosecuted for failure to appear. If you are arrested for a felony (a serious crime in which the possible penalty may be more than one year in jail) or if the police officer thinks you may not appear in court, you will be taken to the police station. The police officer there may release you on your written promise to appear in court or may require a bail bond (a promise to pay a specific sum of money or turn over property to the state if you do not appear in court). If the bail bond is a “personal recognizance,” all you need to do is promise to pay the sum of money set in the bond. If it is a “surety bond,” someone else who has enough money or property must also promise to pay the state if you don’t appear in court. It is very unlikely that you would be released by a police officer if there is a felony charge against you. If your relatives or friends cannot provide enough money for a surety bond, you may contact a professional bail bondsperson. You will have to pay a fee to the bondsperson “posting” the bond. The bondsperson may also demand security, in the form of a house, a car or other property. If the police do not release you and you cannot post a surety bond or get a bondsperson to post it, you have a right to ask the arraigning judge or magistrate to set bond. The judge or magistrate may consider many factors when deciding to set bond, including: your ties with the community; the nature of the crime you are charged with; and your prior criminal record. If you are released and do not appear in court, a warrant will be issued for your arrest. If you were charged with a felony and do not appear, then you can be charged with the crime of failing to appear. If you posted a bond, you or the bondsperson will owe the state the full amount of the bond.

Extradition

If a person “waives extradition” then he can be held in the county jail for an unlimited and unspecified amount of time. He will stay there until the agency which issued the warrant decides to either come and pick him up, or until they work out an agreement with the requesting state for his release or bond. If he “fights extradition” then a sequence of events begins in which Michigan courts have some power to act. This can take up to two months.

Content courtesy of the State Bar of Michigan and William J. Stevens, esq., November 2006

This information is not intended to substitute for legal advice or representation. Talk with an attorney if you have any questions about how this information applies to your own situation.