An arrest can be a traumatic experience.
Last year NBC News reported about the arrest of 16-year-old Trevor Lawrence in Washington, D.C. The Black teenager was standing in line in a sandwich shop when two white police officers entered the establishment and ordered him out of the line. Confused, Lawrence asked for an explanation. The officers gave none.
The officers escorted the terrified teenager outside the sandwich shop, placed him in the backseat of a police car, and drove him to another location. There, the officers hauled Lawrence out of the patrol vehicle and made him stand before an elderly white lady.
“Is this the boy that robbed you?” they asked the lady.
“No,” she replied.
Speaking later about the arrest, Lawrence recalled:
“The fear was crippling. My life was in the hands of someone else. I could go to jail on someone’s word. It shook me to my core.”
An arrest, such as the one that happened to Trevor Lawrence, can happen at any time under almost any circumstance. In Lawrence’s case, the victim was an elderly white lady who was apparently robbed by a young Black man. Lawrence was black, young, and had enough money to buy a sandwich. That was all the two white police officers needed to arrest him as a “robbery suspect.”
What constitutes an arrest, and what rights does a person have during the arrest process?
Article 15.22 of the Texas Code of Criminal Procedure defines arrest:
“A person has been arrested when he [or she] has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by any officer or person arresting without a warrant.”
Article 14.01 of the Code of Criminal Procedure allows a peace officer “or any other person” to arrest someone who commits a felony or any other offense against public safety in their presence or within their view. A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
Although the language of “arrest and detention” does not appear in the Fourth Amendment, that amendment controls the constitutional difference between the two forms of police detainment.
The U.S. Supreme Court held in 1968 in Terry v. Ohio that the police have a right to briefly detain and investigate a person based on a “reasonable suspicion” that the individual is involved in criminal activity. This “detention” process also gives the police the legal authority to conduct a “pat down” search for contraband or weapons.
An arrest occurs when the police, without a warrant, detain a person beyond the parameters of a reasonable investigative stop or when a detained individual reasonably believes that the law enforcement restraint impedes their freedom of movement.
Generally, an individual must be released from detention if probable cause to arrest is not developed within a reasonable time.
“A common “field rule” used by many law enforcement agencies across the nation is the “20-minute rule.” Officers are trained that 20 minutes is a reasonable time to detain based on reasonable suspicion alone. “However, …depending on the facts and circumstances of each case, twenty minutes may be found to be excessive, while twelve hours may be deemed reasonable.”
The “reasonable suspicion” standard has been applied in a number of contexts and effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause, United States v. Hernandez.
Courts have developed some or all of the following factors that determine whether a detention has evolved into an arrest:
- The amount of force used by the police;
- The need for the use of force;
- The number of officers involved;
- Whether officers suspected the individual was armed;
- How officers physically handled the suspect (including the use of handcuffs); and
- The length of the stop.
An arrest can generally be made in two circumstances. First, an arrest can be effectuated with a warrant issued by a judicial officer based upon probable cause that the subject of the warrant has engaged in specific criminal activity. Alternatively, an arrest may be made without a warrant when there is probable cause to believe criminal activity has occurred and “exigent circumstances” exist that prevent an officer from obtaining a warrant. When a warrantless arrest is made, the suspect is entitled to a judicial determination of whether there is probable cause that the individual engaged in specific criminal activity justifying continued custody.
Article 15.17 of the Texas Code of Criminal Procedure requires that an arrested person be brought before a magistrate “without unnecessary delay” but not later than “48 hours after the person is arrested” so that a magistrate can inform them of their rights. At an Art. 15.17 probable cause hearing, a magistrate must inform the arrested person of the following rights:
- The nature of the accusation and any affidavit filed therewith;
- The right to be represented by counsel,
- The right to request an Application for Determination of Indigence and Request for Counsel, together with the procedures for completing the application,
- The right to remain silent,
- The right to have an attorney present during any interview with the police or state prosecutors,
- The right to terminate such an interview at any time,
- The right to an examining trial, if applicable,
- Right not to make a statement and informing the arrested person that any statement made may be used against them at any future trial,
- Allow the arrested person reasonable time and opportunity to consult with counsel, and
- Allow the arrested person to make bail if allowed by law.
But what rights exist at the time of arrest, and how should a person respond to these encounters with the police?
Texas Global with the University of Texas offers these suggestions for citizens during encounters with the police:
- Stay calm, be polite, and do not argue.
- Keep your hands where the police can see them.
- Remember the details of the encounter and make notes later.
- File a written complaint or call your local civil rights organization if your rights have been violated.
- Do not interfere or obstruct the police.
- Do not lie or give false documents.
- Ask if you are free to leave and if the officer says yes, then walk away calmly and silently.
- If the police say you cannot leave, ask the officer why and if you are under arrest.
- If you are told that you cannot leave, tell the police in a calm but loud voice that you wish to remain silent and will not answer any questions outside the presence of counsel.
- Do not physically resist a “pat down” search but do not consent to any search of yourself or your belongings.
If arrested, seek legal counsel immediately. Given today’s hostile climate between the police and citizens, especially citizens of color, it is advisable to memorialize key family phone numbers and the number of an attorney with whom you may have a relationship. If you do not have these immediate resources, do not speak to the police or prosecutors before you have an Art. 15.17 probable cause hearing at which you should request the appointment of counsel.
Remember these key words, “I will not speak to anyone from law enforcement without an attorney.” Be prepared to stick with it regardingless of what investigators say, and remember you can waive this precious right if you later initiate a conversation. Just remain silent. Your lawyer can speak for you later.
Remember that police misconduct cannot be resolved at the point of arrest. Only your lawyer can address the facts later in court. Do not speak, and do not resist, even if you believe the arrest is illegal.
After the incident, write down everything about your encounter with the police, including the officer’s name, badge number, and the police vehicle number. Remain calm and compliant. You can file a written complaint or seek legal redress at a future date.
Remember that an arrest occurs when police notify you that you are under arrest. DO NOT RESIST. Under Texas law, any force opposing the arrest, including jerking away, can be charged as resisting arrest. Accept the inevitability of the arrest until you can contact legal counsel.
Don’t become another statistic of police violence when facing an arrest. Comply and live to fight another day.