By Sarah Williams, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed August 15, 2023
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An arrest occurs when the police take you into custody, and you can no longer freely walk away from the arresting officer. When you're arrested, the police must follow specific legal procedures during and after the arrest process to comply with your legal and constitutional rights.
In criminal cases, typically after an arrest, you're booked into jail. Then, you're taken before a judge for arraignment to enter a plea. Lastly, you're entitled to a bail hearing which can result in pre-trial release.
In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona that individuals under arrest for suspicion of having committed a crime have certain rights. These rights must be explained by law enforcement officers before any questioning may occur. This protects your Fifth Amendment right to be free from self-incrimination. The warning is as follows:
Miranda rights warnings apply when an individual is in police custody and under interrogation. This would not apply to situations like traffic stops. An interrogation by a police officer consists of direct and indirect questions designed to elicit an incriminating response.
However, any information you provide voluntarily without prompting will likely be used against you. So, if you're facing criminal charges or are picked up via an arrest warrant, it's best to remain silent and request a criminal defense lawyer immediately. If you cannot afford private counsel, the court will appoint a public defender at no cost.
If the police stop you, they may frisk you by performing a pat-down of your outer clothing to see whether you're concealing a weapon. Later, if you're arrested, they can perform a full-blown search of your person and immediate surroundings to ensure you don't have any weapons, stolen items, contraband, or evidence of a crime. If the police take possession of your car, it may be searched as well.
The police may take and secure your personal property or money after performing an inventory at the police station. The police will ask you to sign the inventory. You should only do so if you agree with the contents of the inventory.
Once arrested, you're booked. During this part of the criminal process, the police will record information from the arrest, the type of charge (such as a misdemeanor or felony case) and record personal information into the police register.
The booking process includes basic information about yourself, such as your:
State laws vary, but if you're detained but not booked within a reasonable period of time (usually several hours or overnight), your attorney may go to a judge and obtain a writ of habeas corpus. This is an order issued by the court instructing the police to bring you before the court to determine if you're being lawfully held.
Once you're arrested and booked, the appropriate prosecutor's office (such as the district attorney) decides whether to file charges. You have the right to a speedy trial, which usually means the prosecutor must file any charges within 72 hours (48 hours in some states). The initial charging decision does not bind a prosecutor. If the police present evidence at a later date (before trial), additional charges will likely get filed.
The next stage is your arraignment. At this point, your charges are read in court, and you're asked whether you plead guilty or not guilty. Most defendants enter a not-guilty plea and request a trial date. This allows your attorney to challenge probable cause at a preliminary hearing and argue other pre-trial motions.
If you enter a guilty plea, you admit you committed the crime and waive your right to a jury trial. This means you forfeit your constitutional right to a trial before an impartial jury. Additionally, the prosecutor will no longer have to prove your guilt beyond all reasonable doubt.
At an arraignment, you can also plead nolo contendere or "no contest," which aren't technically pleas. But it indicates that you don't contest the charges. A no-contest plea cannot be used in other aspects of the criminal trial as an admission of guilt. A no-contest plea is only accepted by a judge if made voluntarily and intelligently.
You're entitled to an initial appearance before a magistrate to request pre-trial release. You may get out of jail after your arrest and before trial by posting bail with a set list of conditions you must follow, such as a curfew, not contacting the victim, and no out-of-state travel.
Bail is the money you pay the court to ensure you'll make future court date appearances. If you do, the bail is refunded to you. But if not, the court keeps the money and can issue a warrant for your arrest. If you or your family cannot afford the amount of bail set, you can contact a bail bond agent who will secure the bail amount for you for a fee.
Alternatively, you can be released on your "own recognizance" if the court does not consider you to be a flight risk or a danger to the community. But you must promise in writing to make all future court appearances.
No one looks forward to an arrest, but it's good to understand the criminal law process if it happens. It's also important to remember the criminal justice system can be intimidating and overwhelming. A qualified criminal defense attorney can:
Certain crimes may remain on your criminal record and prevent you from voting, securing housing, employment, and other collateral consequences. You should contact an experienced criminal defense attorney to discuss your rights and legal options if you've been arrested and charged with a crime.
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