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Arrest, Interrogation and Bail

Arrest

An arrest means that a police officer, or other government agent, has taken you into her custody or detained you. An indictment is not necessary for an arrest. It is also not necessary for the police officer to say, "You are under arrest."

You may be taken into custody based on acts witnessed by law enforcement, items found in a search of your vehicle or home, on the report of another person, or because of any other evidence that you participated in a crime. Additionally, most states allow private citizens to make arrests if a crime is witnessed.

Once arrested, you will be searched, informed of your Miranda rights, handcuffed or restrained in some fashion and placed in a police vehicle. You will be taken to a local police station and "booked" (fingerprinted, photographed and formally admitted into jail). After booking, you will be held for a period of time while the paperwork for your arrest is completed. During this time, you will be able to contact or consult with an attorney and attempt to make bail.

I have been arrested on a misdemeanor offense. Do I have to submit to a strip search?

Possibly not. If the crime for which you have been arrested is not serious enough to warrant a search of body cavities, a search would infringe your constitutional protections against unreasonable search and seizure. Protest to a jail supervisor, threaten to a file a lawsuit and contact an attorney as soon as possible if the strip search is attempted.

Is it a crime to resist arrest?

Yes, and you will be charged with resisting arrest in addition to as the original criminal act that triggered the arrest. You will have the opportunity to assert your rights in court at the proper time. Do not try to assert your rights by resisting arrest.

I was wrongfully arrested. Do I have a remedy?

Yes,. If you were in fact arrested without a legal basis, it may be possible to bring a civil lawsuit against the arresting entity, such as a city, and collect money damages. However, if the arrest is proper, any civil suit you bring will be dismissed, even if you are eventually found innocent of the crime.

I was arrested several years ago. Can I get the arrest removed from my record?

Yes. If the charges were dismissed, the time to prosecute has expired or you were found "not guilty," you can have your arrest "expunged" or removed from public records.

How do I get an arrest removed from my criminal record?

You must file a legal petition requesting that all mention of the arrest be removed. The petition is filed with the court that issued the criminal charge against you. Most states have laws requiring removal or expungement for certain offenses, such as drug possession, that did not result in a conviction. Check state laws to find out if you are eligible for an automatic expungement.

TIP: If you had an attorney, contact her and ask about getting your record expunged. You can also call the public defender's office in your county and ask for guidance. They may give you a sample petition. Once you file a petition, you will appear before the judge and request removal of the arrest. Once the judge orders your arrest expunged, it must be deleted and removed from public databases.

Interrogation and Miranda Rights

You have heard the phrase "read him his rights" on TV all of your life, but what does it really mean? Miranda rights are the constitutional rights of which you must be informed after an arrest or detainment. These famous rights come from a 1966 U.S. Supreme Court decision of the same name that requires law enforcement agents, including arresting officers, to notify you that before you are questioned:

The consequences of waiving your Miranda rights and talking to the police vary with each specific fact situation. Generally, if you receive a Miranda warning and respond to police questioning, you have waived your rights and what you say is admissible in a court against you.

Situations where Miranda warnings are necessary also depend on the specific facts. Miranda warnings are always required where an individual is taken into custody and interrogated. In other situations, a Miranda warning is not required and involuntary statements made to police can later be used against you, even if you were not "read your rights." For example, a police officer does not have to give a Miranda warning to a driver during a traffic stop. If the driver volunteers she has been drinking, that statement can be used against her during a DUI trial.

The topic of Miranda is very complex, and the answers below are only a basic starting point in an inquiry concerning self-incriminating statements.

I want to cooperate with the police. Can I waive my Miranda rights and answer their questions?

Yes. If you waive them voluntarily, knowingly and intelligently, then the rights you are entitled to under Miranda no longer apply. Whatever you say during questioning can be used against you. However, if you are under some mental disability or have been told it is more important to cooperate with police than enforce your Miranda rights by staying silent, it is possible your waiver will be void.

I have been arrested and am now being detained at the county jail. No one has given me my Miranda rights. Am I entitled to be released?

No. Just because you have not been given a Miranda warning does not mean you cannot be detained or put into custody for a time. Of course, should you be questioned, none of your statements can be used against you without the proper Miranda warnings.

I did not request a lawyer after I was read my Miranda rights, but I want one now. Can I reverse my decision and have a lawyer represent me?

Yes. Your Miranda rights allow you to request a lawyer at any time during questioning or interrogation. This applies even if you initially refused one outright but have now changed your mind. Of course, anything you said prior to an attorney representing you is not protected.

I am concerned that a family member who does not speak English may be arrested. Is he entitled to an interpreter before being given his Miranda rights?

Yes. Miranda warnings are ineffective if the arrested person does not understand them.

How long does it take before my court-appointed attorney shows up?

It depends, but more than a day is probably unreasonable. Furthermore, once you have requested attorney, the police cannot question you unless you initiate further communications with the officers.

I was questioned by the police at the stationhouse, but was never given a Miranda warning. Now I am being charged based on what I said. How can what I said be used against me if I never received a Miranda warning?

You must be "in custody" in order to be entitled to be given a Miranda warning. An actual arrest is not required. Only a person in custody must be given a Miranda warning, and if not, anything he says cannot be used against him.

A person is considered to be in custody anytime he is placed in an environment in which he feels he is unable to leave or is restrained as if an arrest had in fact occurred. If you were told that you were free to leave at anytime, even if you were being questioned in a police station, you were not in custody and your answers can be considered voluntarily. Whatever you said can be used against you.

SIDEBAR: A person who does not understand English, is new to the country, is refused bathroom breaks, etc. has a good argument that he was in custody and his Miranda rights were violated.

I witnessed a crime and the police questioned me at the scene. Now I am worried that what I said might implicate me. Since I was never given a Miranda warning, can what I said be used against me?

Yes. You are only entitled to a Miranda warning if you are in custody. At the scene of a crime, with other bystanders and in a public location, you were free to leave. Since you were not in a place or environment where you felt detained, the police had no duty to give you a Miranda warning and can use your statements against you in a court of law.

Yesterday, I was given a Miranda warning and questioned while in police custody. I was picked up again today and questioned, but not given a Miranda warning. Can what I said today be used against me?

No. Miranda warnings do not last forever. Where there is a significant lapse of time between the warning and your statements, you can argue that you did not knowingly and voluntarily waive your Miranda rights. A lapse of hours can be considered significant, so in your case, the passage of a day probably requires new Miranda warnings.

While in custody, I was given a Miranda warning and questioned by the local police. I was moved to another floor of the detention center and federal agents questioned me on the same matters without repeating the Miranda warning. Can what I said to the federal agents be used against me?

Yes, if no significant lapse of time has passed. Where there is an uninterrupted flow of questioning, even though the location and agencies change, the original Miranda warnings have not been diluted or expired. If you answer the federal agents' questions, you are voluntarily waiving your Miranda rights and what you say can be used against you.

I was pulled over while driving, questioned by the police and given a sobriety test without being given a Miranda warning. The questioning continued even after I said I wanted an attorney. Should their questioning have stopped immediately?

No. You were not "in custody" in this specific situation and thus not entitled to a Miranda warning. Your repeated requests for an attorney had no effect on the officers' ability to continue to question you. You did not have to answer their questions; however, you continued to make statements, and those statements can be used against you.

SIDEBAR: In DUI cases, you are not entitled to a Miranda warning when:

TIP: If you are stopped in your vehicle and asked, "Have you been drinking?," you have the right not to answer.

My preteen was questioned by the police and confessed to being part of some criminal activity. He was told of his Miranda rights prior to acknowledging his participation. Can this "confession" be used against him?

Yes. Your child can waive his Miranda rights and confess to the police. However, age is a factor that the courts will consider in determining whether your son's waiver of his Miranda rights was voluntary and knowing. Youth, confusion and acquiescence to police authority can show that the statements were made without your child understanding his Miranda rights or comprehending the consequences of speaking.

In deciding whether a minor's confession is voluntary, the court will examine the circumstances of his detention and interrogation, including:

I am concerned that a family member with a severe mental disability does not understand her Miranda rights and has confessed to a crime. Is her confession admissible?

No. For a Miranda warning to be effective, the warning itself must be understood and the possible consequences of waiving Miranda and confessing or answering questions fully comprehended. If your relative did not have the capacity to understand and comprehend her rights, her confession cannot be used against her.

The police came to my home and questioned my brother about his involvement in a burglary. He confessed before he was given Miranda warnings. After he received his Miranda warnings, he confessed again. Are his confessions admissible?

Yes. Although your brother may have felt that since he had already informed the police of his involvement, he had no choice but to confess even after the warnings. However, if the officers did nothing to forcefully coerce the second confession, your brother's post-Miranda statements effectively waived his Miranda rights, and will be used against him.

If security guards are questioning me at airport checkpoints, do they have to give me a Miranda warning to use my statements against me?

No. Just as border crossings allow for searches of person entering the country without a warrant, anything you say to airport personnel during routine questioning can be used against you. The courts have held that Miranda does not apply to questions concerning your citizenship, your destination, your possessions and other inquires typically posed to passengers. Furthermore, although you may be "detained" during the routine questioning, you are not in custody, and you do not have to be given a Miranda warning.

However, if the questions get into issues outside routine matters, or if other officers appear and you are taken to another location away from the normal security checkpoint, you are in custody and a Miranda warning should be given. Furthermore, once you are found to be in possession of contraband, weapons or other suspicious materials, you are "in custody" for the purposes of Miranda and the officers must notify you of your rights or your statements are inadmissible.

Extradition

Extradition allows persons charged with crimes and who flee the charging jurisdiction to be returned to the state in which the crime was committed. For example, an accused charged in Texas who flees to California will be returned to Texas for trial if he is caught and if the severity of the crime warrants extradition. Much of the extradition process is governed by the Uniform Criminal Extradition Act, which most states have adopted. The Act sets out guidelines for accomplishing an extradition and gives the fugitive certain rights during the process.

Those fleeing after being charged with a federal crime are extradited under the Fugitive Felon Act. Where federal courts have jurisdiction, state extradition laws are not applicable.

Initial Appearance

In most states, you may not be held in custody for longer than 48 hours without being charged. You will be charged when you go before a judge or magistrate at your initial appearance. This procedure is also called an arraignment or preliminary hearing, depending on the state. There you will hear the charges being made against you, and you will be asked to plead "guilty" or "not guilty." You can also choose to plead nolo contendere (or "no contest").

What happens at my preliminary hearing?

If you plead "guilty," a date for sentencing will be set, and you will be taken to jail. A trial date is set when you plead "not guilty," and you may also be returned to jail.

In felony cases, a "not guilty" plea requires the prosecutor to present evidence to the court that probable cause exists for charges to be brought against you. If the judge finds that probable cause is lacking, the matter is dismissed, and you will be released. If the judge finds that probable cause exists, you will be officially charged with the crime.

Pleading nolo contendere (or "no contest") has much the same effect as pleading guilty, without the defendant accepting or denying any wrongdoing. A person may choose to make a plea of nolo contendere rather than "guilty" so that the plea cannot be used against him in another cause of action.

Bail and Bail Bond

"Bail" is the money paid to the court to obtain the release from jail of an arrested person. Bail is set and paid prior to trial so that a defendant can continue to work, support his family and help prepare a defense. The right to bail is based on the premise that individuals are presumed innocent of a crime until proven guilty. However, the defendant must be able to give adequate assurance to the court that he will appear at trial and be available for sentencing.

Bail is the actual cash tendered to the court to guarantee the defendant's appearance when called to trial. The amount of bail is set by a judge and depends on the severity of the crime, past criminal history and economic factors.

A "bond" is not cash. It is a financial guarantee, along with a cash payment, provided to the court by a licensed agent operating a bail bond agency. He or she is called the "bondsman." The agency guarantees the defendant's appearance in court and will be responsible for full payment of the bail if he does not appear.

The federal government has its own bail and bond system that differs substantially from the state systems that are discussed below.

Bail

I have been arrested. What is the amount of my bail?

If you have been arrested on a misdemeanor, the jailor typically has a standard recommended bond for each offense. For instance, if you have been arrested on a DUI charge where neither a collision nor injuries have occurred, the misdemeanor judge may have set a standard $500 bail amount, with only a 10 percent payment actually required for release. In that case, you make a payment to the jail of $50 and you will be released.

Felonies are very different. Standard bail amounts for felony offenses are rarely set because the facts of each case vary tremendously. If you are arrested on a felony charge, a judge will be contacted to set your bail.

What will the judge consider in setting a bail amount?

The judge will consider a number of factors. These include:

I have heard of being released "own your own recognizance." What does that mean?

Where minor offenses are involved, you can be released from jail without payment of bail after your arrest. States have different terms for this process, such as "personal bail" or "writing your own bond."

You will have to sign a document, called a "bond," guaranteeing your appearance in court at a later date. This type of bond is secured or guaranteed by collateral you put up, such as real estate, vehicles or jewelry. The sheriff of the county where you have been arrested will certify the value of the property, and you will be released on your "own bond." If you do not later appear in court, not only must you surrender any property you put up, you will then be responsible for full payment of the bail amount.

SIDEBAR: The property you put up as collateral must be nonexempt property or property that cannot be seized by law. In most states, exempt property includes your home (known as your homestead), which you will not be able to use to guarantee your bond.

My bail has been set. Who do I pay?

Typically, you will make your payment at the jail facility where you are being held. If you have been brought to the courthouse and are there when your bail is set, you can pay the designated court clerk.

TIP: Personal checks are never accepted. Find out the type of payment required. Usually, jail facilities accept cash, certified checks and money orders. Court clerks may accept only cash.

I have always heard that you only have to pay a percentage of bail to be released from jail. Why am I being required to pay the full amount?

Depending on the state, a certain percentage payment is only possible when bail is set below a certain amount. For example, your state may require full payment where bail is set at $2,500 or more. If your bail was $2,000, you would only be required to pay $200 for your release in a 10-percent state. However, if your bail is set at $2,500, you must pay the entire amount.

Once a bail amount is set, can it be increased?

Yes. On a motion by the state, the court can be petitioned to increase the amount of bail. The increase can be based on any number of factors, including discovery of additional facts surrounding the crime or past criminal activity. Additional charges can be added that also may increase the amount of bail.

Is there any time bail would be refused or not set?

Yes. Some states, by law, deny bail on capital murder charges where the evidence is clear and persuasive. However, nearly all offenses are considered "bailable" pursuant to your constitutional right of presumed innocence.

I cannot afford bail. Can someone else pay it for me?

Yes. In most states, any person more than 18 years old can pay your bail or you can use a bail bond agency.

I posted a percentage of bail for a family member who can no longer be located. If she fails to show up for her court appearance, do I have to pay the full amount of bail?

Yes. Once you posted the bail, you become responsible for the full amount (and signed off on a bond document to that effect). You may also forfeit the original percentage you paid. In other words, you will not receive a credit toward the full amount due.

It is possible to have the bail you forfeited returned to you through a procedure called "remission of forfeiture" if the defendant is eventually apprehended and taken into custody. The application must be filed within a year of the original bail forfeiture in most states.

My bail has been set and my family cannot raise the money. What do I do to get out of jail?

If you and your family members are unable to raise the actual cash amount of the bail or even a percentage, you can attempt to "write you own bond." Some states allow you to tender real property or intangible assets, such as stocks, certificates of deposit or letters of credit from your bank in lieu of cash bail.

Can I charge my bail amount on my credit card?

Many jails will accept a credit card. The amount is processed by an outside agency, and you can expect to be charged a special service fee on the transaction.

Do I ever get my bail money back?

Yes. When your case is concluded, either by dismissal, trial or some other process, the court will order its return ("exonerates the bail") to you.

I paid my own bail. If I do not appear in court, what are the consequences?

Your failure to appear is a crime, and you can be prosecuted and convicted of "bail jumping." If you are charged with a felony, your failure to appear is likewise considered a felony.

You can also expect your original bail amount to increase substantially. Many courts double the amount as a standard policy.

SIDEBAR: State laws may allow a defendant who has failed to appear to plead "reasonable excuse." What is "reasonable" depends on the facts but severe illness, erroneous information regarding court dates or other unintentional events will generally suffice where you can show you attempted to contact the court.

Bail Bond

What is a "bail bondsman"?

A bail bondsman is a professional, licensed individual who will pay a percentage of your bail so that you may be released from jail. The bondsman is, in effect, loaning you money.

How do I contact a bail bondsman?

The best place to start is the jail itself. Jails are overcrowded and jail officials want you to post bail to make room for serious offenders. Jail personnel and criminal courts regularly work with local bail bond agencies and have a list of bondsmen you can quickly contact.

TIP: The Internet is replete with information and advertisements for bail bondsman. Be wary of the claims made on different sites. It is much safer to rely on actual word of mouth.

The jail's bail bond agency list is long and I do not know which one to contact. Will anyone at the jail give me, or anyone in my family, a recommendation for a bondsman?

No. Jail officials, and most other public officials such as prosecutors, judges and police officers, are prohibited by law from recommending a particular bail bond agency to anyone.

How do I know the bondsman I contact is properly licensed?

Ask to see a copy of the actual license issued by the state. The license must show, at a minimum, the name of the bondsman and the expiration date. Most states even make it a criminal offense to advertise in the Yellow Pages as a bail bondsman without possessing a valid license.

Can my attorney act as my bondsman?

Yes. Attorneys can acts as bondsman for their clients.

Is there a fee for obtaining a bond through a bail bond agency?

Yes. The bondsman charges a nonrefundable fee based on the amount of bail. The fee is generally the maximum amount allowed under state law. You can expect the fee to equate to approximately 10 percent or more of the bail amount. You, or whoever contracted with the bondsman, can sometimes make regular payments toward the fee.

TIP: The bond business is very competitive. Do not be shy about "shopping around" the fee. If you are a good risk, you can probably find a lower fee than the maximum allowed by law.

Is the bail bond agency required to give me a receipt?

In many states, a receipt is required. If you are not given a dated receipt for payment of the service fee, ask for one. The receipt will be proof of the agency's obligation to post your bail. Make sure the receipt includes:

I cannot pay the entire agency fee. Can I still get a bondsman to help me out?

Yes. It is not uncommon for the fee to be paid out over time. If the fee is $500 and you can only pay $100, you may be allowed to pay out the remainder of the fee on a weekly basis.

TIP: Do not miss a payment. If a payment is missed, the bondsman may assume you have fled and make a motion with the court to forfeit the bond and a second arrest warrant will be issued for you.

Does a bondsman have to give me a bond?

No. If the bondsman determines you are a bad risk and will flee or disappear, he will not post bail for you. You will remain in jail until you can post bail or find a bail bond agency that will loan you the money.

My agreement with the bondsman requires me to stay in the county, call him every week and give him my passport. Do I have to comply?

Yes. You are required to abide by the terms of your contract with the bondsman. Although the court does not require you to stay in the county, the bondsman is permitted to put all types of limitations on you.

What is "collateral"?

Collateral is property of some sort that is pledged or given to the bail bond agency in return for its payment of bail to the court. It can be stocks, jewelry, vehicles and even real property.

Always review the bail bond form and make certain that the information is correct. The amount of the fee and the description of the collateral contained in the bail bond document set out your obligations.

A family member is in jail and has asked me to pay the bail. Can I go to a bondsman on behalf of my relative?

Yes. If you are more than 18 years old (in most states) you can enter into an agreement with the bondsman in order to get a family member or friend released from jail.

The bondsman wants me sign a document naming me as "indemnitor" on the bail bond. What does this mean?

As indemnitor, you are responsible for the defendant while she is out of jail on bail. The collateral you have pledged to obtain the bond will be forfeited to the bail bond agency should the defendant fail to appear in court as directed. By acting as indemnitor, you risk losing your collateral.

Can my bond be set aside or revoked?

Yes. The court can revoke your bond and you can be retaken into custody. You continue to have the right to seek another bond.

SIDEBAR: A common condition of release on bail or bond is that the defendant undergoes drug testing. If you should fail a drug test, it is likely the court will revoke your bond and you will go back to jail. However, you still have the right to have a bail amount set and pay it to obtain your release.

Can I "switch" bondsman after I have entered into an agreement with one and been released from jail?

Yes. However, but at a minimum you will lose any fees you have paid, plus owe the amount of cash the bondsman put up to get you released. If you cannot pay what you owe, the collateral you pledge will be seized as well. Make sure you carefully check your bond agreement before you decide to switch.

If I do not appear in court, what will happen?

The bondsman will file a motion with the court, sometimes called a Motion to Surrender Principal (the person for whom the bond was written), based on your failure to appear or cooperate. The court typically grants the motion and issues a capeas or second arrest warrant. The court can also declare the bond forfeited by entering a judgment nisi.

Your bail bondsman or his agent, commonly known as a "bounty hunter," will then pursue you. By skipping a court appearance, the bondsman now owes the entire amount of bail unless he quickly locates you. Your disappearance also means that the bondsman takes any collateral pledged. Thus, if your parents pledged their vehicle against your bail and you flee, the bondsman has the right to seize the vehicle immediately.

CAUTION: The motion to surrender can be filed at any time, not just when you fail to appear in court. If you have failed to make a weekly payment to the bondsman, for example, he can and will file the motion.

A second arrest warrant has been issued for me on my bondsman's motion to the court. What can I do to fight the motion?

You have the right to appear in court and contest, or fight, the motion. You will be allowed to explain to the judge why you did not make a payment or if you left the county. If the court finds that you were "surrendered" without reasonable cause, the bondsman can be ordered to refund all or part of the fees you have paid him.

My bail bondsman is not a police officer. How can he arrest me and take me into custody?

Your bondsman has far-reaching legal rights over you that exceed even police authority, by virtue of your contract with him. He and his agents can legally pursue you across state lines, arrest you and detain you without a warrant, using deadly force if necessary.

Those who flee should expect to be found. A bondsman requires a myriad of information before he will post your bail. Not only will you have to provide your home and work addresses and phone numbers, you will have to provide information on friends, family members, spouses and former spouses, children, employers and former employers. The well-connected bounty hunter also has access to credit, utility, phone and welfare agency records.

Exactly what is a bounty hunter?

Bounty hunters are paid by bondsmen to locate defendants who have fled or disappeared. Generally, they are not licensed or regulated by the state. Like bondsmen, they have almost unlimited legal rights over a defendant in order to return him or her to the state or county that has jurisdiction. Bounty hunters are not required to be formally trained and states generally do not have guidelines that they must follow.

I missed a court appearance and my first bond was set aside. What happens now?

Once you are found, you are taken into custody and your bail amount is typically doubled. You are then back in the position of finding another bondsman. Because you are now considered a flight risk, you can expect to pay a higher fee amount, put up more collateral and be subject to greater limitations on your movement under the terms of your new bond agreement.

When do I get my collateral back?

Once the bond is no longer in effect, typically after your trial, your collateral will be returned to you. The court must order the bond "exonerated" before the bail bondsman returns your collateral.

My case has been dismissed. My bondsman refuses to give back some valuable coins I gave as collateral. What can I do?

You can file a complaint with the agency overseeing bondsmen in your state. Your county may have a bail bond board, which sets guidelines and regulations for bondsmen. This board will have the ability to pressure your bondsman into returning your collateral.

I was convicted but am now appealing. I have been out of jail on a bond but now my bondsman wants his bond discharged. What does this mean?

Some states do not require a bondsman to continue to guarantee your appearance once you have been convicted and are appealing. Your bondsman has the right to ask the court to release him from, or discharge, the bond. You will be returned to custody unless you can obtain an appeal bond. Additionally, the bondsman keeps all the fees you have paid.