To arrest someone is to restrain or take a person into custody in order to charge him or her with a crime. If you are arrested, you have rights to protect yourself whether you are guilty or innocent. Remember, however, the police also have rights and responsibilities that you must recognize.
In Oregon, you may be arrested for either a felony or a misdemeanor. A felony is a crime punishable by imprisonment in the state penitentiary for more than one year. A misdemeanor is a crime that may be punished by sentencing you to one year or less in the municipal or county jail. Besides a possible jail sentence, you may face fines and various court costs, license suspensions, conditions of probation and other consequences.
In addition to these types of crimes, you may be arrested if an arrest warrant has been issued for such things as probation and parole violation or failure to appear in court on a criminal charge.
You cannot be arrested for a violation, like a speeding ticket. However, an officer can detain you long enough to identify who you are and to give you a citation.
If an officer orders you to go with him or her, or when you submit or surrender to custody, you have been arrested. If an officer merely asks you to go with him or her to the police station, you have not been arrested.
An arrest does not occur when an officer conducts a “stop and frisk.” This is simply a temporary restraint to ask you about a crime while patting your outer clothing in a search for weapons.
If you are not sure whether or not you are being arrested, ask the police officer if he or she is placing you under arrest. Unless you are under arrest, you do not have to go with the officer.
While a police officer may use reasonable physical force to make an arrest, he or she cannot use more force than is necessary to restrain a person and prevent escape. There are legal remedies if too much force has been used, and you should discuss these with a lawyer.
Even if you are innocent, it is a crime to resist a police officer while he or she is placing you under arrest. Do not resist arrest. Do not become disorderly, use abusive language or provoke others to use bad language. Do not interfere if officers are attempting to arrest other persons. If it turns out that you have been arrested illegally, the law may provide a remedy.
At the time of arrest, the officer must tell you why you are being arrested and how the arrest is authorized. An officer may arrest you without a warrant if he or she has “probable cause” to believe you committed a crime. Otherwise a warrant is needed.
A private person may make a “citizen’s arrest” for any crime committed in that person’s presence if there is probable cause to believe a crime has been committed. A citizen making such an arrest must immediately take the arrested person to a judge or turn him or her over to a police officer.
When you have been legally arrested, an officer may search you and your clothing without a search warrant. An officer is also permitted to a limited search of the area that you occupied at the time of your arrest. This is a search for evidence relating to the crime for which you have been arrested, or for weapons. In all other cases, a police officer must have a search warrant and/or your consent (agreement) to search, unless there are exceptional circumstances. Whether or not you have been arrested, you are not required to give your consent to be searched. However, you should not resist a search with force. If a search is illegal, the courts can address that at a later time.
If you are arrested, you have the right to request the help of a lawyer. Your number of phone calls may be limited, so you might want to telephone a relative or another person who can help you locate a lawyer. You will be taken to a police station where you are booked. You may be fingerprinted and photographed. You may ask to have these removed from your record if the case against you is dismissed. You do not have to submit to an interview about the charge(s) against you.
An inventory of your personal belongings will be taken during your booking. You should be given an itemized receipt for the personal items that will be held for you. These items, often called prisoners’ property, are usually returned to you whenever you are released from custody. However, some items may be kept by the police for evidence purposes while a case is pending.
Besides giving your name and address, you do not have to answer any further questions after you have been arrested. You also do not have to sign any papers. Remember, anything you say may be used against you later. It is improper for anyone to promise you a lighter sentence, or anything else, in exchange for a confession. No official may use any force or threats against you. Violations should be reported to the judge, district attorney, and your own lawyer.
You cannot be forced to take a lie detector test. You should talk to your lawyer before asking or agreeing to take such a test. Lie detectors are not always accurate. Also, lie detector test results are not allowed in Oregon courts, except in rare situations.
You may be required to stand in a line-up, but you have the right to have your lawyer there. If you are asked to perform other tests, consult with your lawyer first. You have the right to get out of jail on bail or a conditional release agreement unless you are charged with murder. There are three kinds of release agreements: security release, personal recognizance, and conditional release.
A security release (often called “bail”) is secured by a deposit of money or other property. Be sure to obtain a receipt for any money or property deposited. The dollar amount of the security release is set by the court. If the defendant fails to appear for any court date, the money is lost through a procedure called bail forfeiture. When the case is resolved, the money or property deposited can be returned. Some courts will use some or all of the money to pay financial obligations on other cases involving the same defendant, such as unpaid traffic tickets or court costs.
Personal recognizance means that you promise to appear in court at all required times; being released “on recog” means you are not required to post bail. A conditional release is very similar. It includes conditions that regulate your activities while you are out of jail, such as where you can live and whom you may see. Often, this requires the agreement of a third person to assure your appearance in court and to supervise your behavior on release. A release assistance officer or other person appointed by the court may interview you to collect information for the judge to review at your first appearance. A judge may decide to release you from jail before trial, and he or she has the authority to change the amount of the bail and to set conditions on your release.
If you are released for any reason, be sure to carefully read any paperwork you are given. Release agreements usually prohibit you from contacting the alleged victim or leaving the state.
Remember that failure to appear in court when required after you have been released is a new crime that carries additional jail penalties. The judge can order forfeiture of any bail posted and can issue a bench warrant for your arrest. In some cases, failure to appear can also cause a license suspension. Normally, you must appear before a judge for a court appearance within the first 36 hours after your arrest. If the police officer or jail authorities give you a ticket or any paperwork, read it carefully. It will probably indicate your court date and the conditions of your release. If you are confused or lose your paperwork, the clerks at the courthouse can usually tell you your court date.
If you decided to seek legal assistance after your arrest, you should have your lawyer with you when you first appear before a judge. If you do not have a lawyer, the judge will tell you of your right to have one. If you ask, the judge will postpone proceedings to allow you reasonable time to get a lawyer.
If you cannot afford to hire a lawyer, ask the judge to appoint one. If someone cannot afford a lawyer, the court is required to appoint a lawyer in all cases where a person is facing the possibility of a jail sentence. This includes any crime, violation of probation, violation of a restraining or stalking order, or extradition to another state.
When you appear before a judge, he or she must tell you the charges against you, give you a written copy of them, and ask for your plea. The judge will usually ask you to plead not guilty, guilty, or no contest to the charge at the first hearing. If you plead not guilty, the court will set a later date for the trial. If you enter a plea of guilty or no contest, the judge will proceed to sentence you.
In most felony cases, a grand jury decides whether or not there is enough evidence to accuse you of a felony. If the grand jury decides that there is not enough evidence, the case may be dismissed or reissued as a misdemeanor. If there is enough evidence of any felony, the grand jury gives the prosecution the authority to issue an indictment.
You may ask to appear before the grand jury when it is considering your case, but you should not do this without your lawyer’s advice. The grand jury does not have to allow you to appear before it.
If the grand jury indicts you, you will be given a copy of the indictment at an arraignment. In most cases, you will be advised to enter a not guilty plea and demand a jury trial. That gives you and your lawyer time to investigate the case, negotiate the best possible settlement, or prepare for trial.
Legal Editor: Greg Scholl, December 2011