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Know Your Rights When You’re Arrested

arrested in the bronx

Getting arrested can happen at any time. You might think you’re not doing anything bad enough to get arrested, but innocent people are arrested every day. Some for good reason and some for not-so-good reasons.

Maybe you’ve been arrested or know someone who just got arrested. Or maybe you’re worried about being arrested. In my third post of the “Know Your Rights” series, I’m going to review the basics of the rights you have when you’re arrested.

What To Do When You’re Arrested

Getting arrested is never easy. If you’ve been arrested in the past you probably know the drill and know what to expect. But for someone who’s never been arrested, finding yourself constrained, pushed around, and physically forced to walk, sit, stand, or lie face down on the ground will come as a shock. I’ve put together a series of thoughts that I think will help you get through it if you’re ever arrested.

Don’t Panic When You’re Arrested

First of all, before anything else happens, stay calm. I hear stories all the time about people who panic when they’re arrested. I don’t think I have to tell you that things will turn out bad. Really, really bad. If you have never experienced being arrested, your primal instincts may kick in. If you haven’t mentally prepared yourself, you may panic. People who panic try to run away, struggle with police, reach for the officer’s gun, try to hit a police officer, and worse.

You can get your mind under control if you try to separate yourself from the moment. From the minute you realize you may end up with handcuffs on, start breathing deeply and softly. Count to yourself if you have to. Don’t think about the feel of the handcuffs (they’ll be tight!) or the loss of freedom you’re experiencing. Just keep reminding yourself that the more cooperative and calm you are, the better your experience of getting arrested will be. Once you’re under arrest, there is nothing you can do to make the situation better… except to remain calm.

Any other reaction can result in you getting additional charges of resisting arrest, assaulting an officer, trying to evade arrest, and a variety of other charges. And if no one is recording it, it’s your word against a police officer’s. Don’t take chances. Stay calm and don’t panic when you’re arrested.

Don’t Bargain With Police Officers When Being Stopped or Arrested

You would think by now that people would realize nothing good can come from asking a police officer: “Do you know who I am?” Yeah. You’re about to be inmate # 769046539021. Celebrities do it all the time and their police encounters end up in everyone’s Facebook news feed. It hasn’t ended well for them and it won’t end up well for you.

This also means not telling officers that your “brother is a cop,” or that you “work at the New York Times” or “have dinner with the mayor” or that “you’re a real estate developer.” It can only go downhill. The officers will be equal parts amused and insulted. Amused that you thought it would work, and insulted that you expected them to defer to what amounts to a threat. Don’t try to bargain your way out of an arrest.

What To Say When You’re About to Be Arrested

If you’re arrested shortly after you’ve been stopped (in a car or on the street), the police officers may not have questioned you yet. From my post on knowing what to do during a traffic stop, you probably already know that you should be as polite and cooperative as possible, except you have the right to not answer questions.

When you’re stopped you may think that the first few questions a police officer asks will be something that can’t hurt you to answer. I advise my clients to respond to questions with their own question: “Am I being detained?” and followed up by “Am I free to leave?” Some people choose to answer police questions like “Where are you going?” or “Where do you live?” so that they don’t upset the officer. That’s a personal decision you must make. Realize that simple questions can sometimes get you into deeper trouble. This goes for before and after an arrest.

What Should You Say When You’re in Handcuffs?

What should you say when arrested? Once the handcuffs are on, it’s not safe to answer anything. Be prepared for police questioning tactics at all times. One tactic is “good cop, bad cop,” where an officer tries to intimidate you while another officer tries to make you feel like they’re looking out for you. They’re wanting to build trust with you so you’ll talk. Don’t fall for it. You have a right to remain silent.

Another tactic is to tell you that if you’ll just answer questions, the arrest will be over and they’ll let you go. Don’t fall for this, either. Would you like to know the percentage of suspects that were released after being told this? You don’t want to know.

What To Say in the Police Car After You’ve Been Arrested

Nothing! There’s nothing to say at this point. It doesn’t matter what the police officers say to get you to talk. Don’t engage in conversation. They are not your buddies. If they’re saying things that make you want to join the conversation, stop yourself. This is a tactic to get you to drop your guard in an effort to feel human again while in handcuffs. It’s a natural human need. Refuse it. They are taking notes, and everything you say can and will be used against you.

If you’ve been making your assumptions about how to handle an arrest from the movie Superbad, you’re doing it wrong. There are other places and people where you can feel included and valued and cool. In the presence of police officers is not that place.

What To Say When You’re in Jail After Being Arrested

Once you’re taken to jail, depending on the charge you may be questioned again. Detectives may take you into a room where they attempt to extract as much information from you as possible. Everything you say can and will be used against you. You don’t have to say anything. No matter what they tell you, you have the right to remain silent. The only safe thing to say is “I want my attorney.”

What To Say When Police Continue To Question You After You’ve Asked For an Attorney

Say it again: “I want my attorney.” Okay, stop what you’re doing. Right now is the perfect time to get one on speed dial. Before you finish reading this post. Choosing an attorney is an important and personal decision. It’s best made long before you’re arrested.

Even if you don’t know an attorney yet, find one you feel comfortable with and program them into your phone. I tell my clients to make sure I’m in their speed dial and I also give my clients my personal phone number so they can get me directly or text me. If you don’t have an attorney and want to be prepared, feel free to add my number in your phone.

What To Do When You’re Arrested While on Vacation

What if you don’t have an attorney, and you’re going to be traveling far from home? It’s not going to hurt anything to do some research and program a local attorney into your phone before you leave for your trip. If you know you can call an attorney at any time, no matter what the circumstances, you’ll feel more confident and more prepared to insist on your rights.

Anything can happen while you’re traveling. Highway stops by state police, DUI checkpoints, random searches, problems with the TSA, misunderstanding local customs… you just never know when you’ll need an attorney to have your back.

This is a great topic for a future post.

Do You Have to Give Your Phone Password When You’re Arrested?

This isn’t simple, and it’s getting more complicated by the day. I advise my clients to not provide a password. It’s a personal choice. I believe in the Fifth Amendment and would not agree to give mine. And I’d be willing to bet that just like some police officers are known to refuse the breathalyzer, they will probably eventually be known for not handing over their passwords. It will be interesting to see.

In case you’re worried about being forced to use your fingerprint to open your phone against your will, if you can turn off your phone, most require a password on restart. If that were to happen, you can’t be forced to use your fingerprint to open your phone because the fingerprint won’t work.

Do You Have To Sign Anything When You’re Arrested?

No, you do not have to write a statement or sign a statement. You don’t have to sign anything, technically not even a sign-in book. I’m working on a future post about what to know when you’re in jail that will go into issues with documenting your personal property when in jail.

Do You Have To Be Recorded While Speaking With Your Attorney?

No, it’s not a requirement that you be recorded while speaking to your defense attorney. Many times police precincts will have a recorder running in interrogation rooms as a protection for officers. If you’re meeting in a “private” room, make sure you request that it be truly private. That’s one of your rights, to speak to your attorney privately. Ask that all recordings be stopped before speaking with your attorney.

What Rights Do You Have When You’re Arrested and in Jail?

You have the right to remain silent
You have the right to an attorney
You have the right to speak with your defense attorney privately
You have the right for your defense attorney to be present during any questioning
You have the right to refuse a search (but that doesn’t always mean you can avoid a search)
You have the right to be present at your arraignment (when you plead before the judge)
You have a right to have your attorney at your arraignment
If you don’t have a defense attorney and can’t afford one, you’d be assigned a public defender at the arraignment

What Should You Do After Being Released?

Write down an account of your arrest as soon as possible. Be detailed, and give this to your attorney. Also, tell your attorney how you were treated during the arrest and during your time in jail. If you were subject to abuse or deprived of your rights, your civil rights may have been violated and you have important legal options. But you can’t take action and get justice if you don’t tell your attorney.

After you’re released, don’t talk to anyone other than a spouse about the circumstances of your arrest. You don’t even have to tell anyone you were arrested. You haven’t been found guilty, just arrested. While it’s public record that you’ve been arrested, it’s not in your best interest to spread it around. It’s not uncommon for friends, family, and co-workers to be called to testify.

Do you have any questions about the rights you have when you’re arrested? Are you wondering what you should do if a family member or friend is arrested? Send me an email and I could answer your questions in a future post. If you need to speak with me about a specific issue, as always you can reach me by phone, email, or live chat on this page.

Three other articles in the “Know Your Rights” series:

Know Your Rights: When Police Are At Your Door 
Know Your Rights: When You Call the Police
Know Your Rights: When Being Questioned by Police (upcoming post)

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