Arrest Process

Under New York law, a person can be placed “under arrest” whenever the police have reasonable cause (also known as probable cause in other jurisdictions) that a person committed a crime. The police have “reasonable cause” to believe someone committed a crime when they believe it is more likely than not that the person committed the crime. At that point, the police have the legal right to restrain someone and charge him. The first thing that happens when the police make an arrest is they search that person subject to that arrest. While individuals in the United States generally have a right to be free from searches and seizures of their person without a warrant, there is an exception to that right which occurs after a person is lawfully placed under arrest. The reason for this exception is because courts have held that police may search any person who is lawfully arrested for their own protection in case the arrestee has a weapon. Usually, when a person is arrested on the street, he will be patted down for weapons near where he is arrested. Afterwards, he will be taken via a police car to the precinct where the first part of his arrest processing occurs.

The first part of that process includes the cataloguing of the property that the person had on him at the time of his arrest. The reason for this is because an arrestee does not have the right to take his property with him as he is “booked.” He essentially only gets to take his clothing that he is wearing. The items that he has are taken from him and “vouchered” usually either as “arrest evidence” or as “safekeeping.” Arrest evidence is evidence that the government intends to use against you. For example, if a person is arrested for committing a robbery and he is found with the proceeds of the robbery and the knife used in the robbery, then that evidence is going to be used against him in the prosecution for robbery. So that’s “arrest evidence.” His keys and wallet, however, are probably not going to be used against him, so that will be vouchered as “safekeeping.” This means he can get it back once his arrest is over.

While at the precinct, the police will then take the basic information regarding the arrestee. They will ask him his name, address, etc. They will also take his fingerprints and his “mug shot.” Other then asking this basic pedigree information, however, the police do not have the right to ask questions of the person without giving him his “Miranda Rights.” If they fail to do this, then anything the arrestee says will be suppressed. This means the government will be precluded from using any statement the person made. Once a person requests a lawyer, the police may no longer question the person about anything other than his pedigree. It is important to remember, that a person can and should request a lawyer immediately. At that point, the police may not ask any non-pedigree questions of the arrestee.

After the police do these things, they have a duty to make the defendant available for his arraignment. An arraignment is the beginning stages of a criminal case against the person. In New York, the arraignment is when the person has the right to have a lawyer present, to have the charges and his rights formally read to him, and to have an opportunity to plead guilty or not guilty. After the arrest processing, the police will make a decision as to whether to give the person a “Desk Appearance Ticket” or DAT or to take the person to court directly for his arraignment. If a person is given a DAT, he is essentially given an order to report to court on a particular date in the future for his arraignment. If the police elect not to give a person a DAT, then he has to be arraigned within 24 hours of his arrest. The police therefore will bring the person to court. He will then await his arraignment in Central Booking near the courthouse. While he is in Central Booking, the police will then discuss the facts of the case and the appropriate charges with the District Attorney’s Office. The DA’s Office will then draft a Criminal Court Complaint and the arresting officer will sign it. When that is finished, the person will be brought in front of the judge and if it is a misdemeanor, he will either plead guilty or not guilty. If he pleads guilty, the case is over. However, if he pleads not guilty, then the court will determine whether bail is appropriate. For a felony, the person does not enter a plea, but rather the court simply entertains bail and the case then gets adjourned for “Grand Jury Action.” If the court sets bail and the person cannot make bail, then the District Attorney’s Office must provide non-hearsay evidence to the court within six days that establishes the probable cause for the crime. If they fail to do this, then the person must be released from custody. If it is a felony case, then this form of evidence must come in the form of live testimony in a Grand Jury proceeding. If it is a misdemeanor, then it’ll be in the form of a statement by the witness that they read the complaint and it is true to their knowledge. Once that happens, the case proceeds to motion practice and to eventual trial.

Being arrested is a serious and traumatic ordeal in a person’s life. If you, or a loved one, is even placed under arrest, contact an experienced attorney immediately.