Last Updated: June 25, 2024

Understanding Your Rights During an Arrest

Being arrested, or even just stopped and questioned by police can be a very stressful experience. It is common to feel as if police officers have all the power when interacting with them. It is important to remember, however, that you have rights in these situations, and properly exercising those…

Being arrested, or even just stopped and questioned by police can be a very stressful experience. It is common to feel as if police officers have all the power when interacting with them. It is important to remember, however, that you have rights in these situations, and properly exercising those rights can be critical for any legal defense that you may need.  

Right to Remain Silent

Exercising your right to remain silent and refraining from giving any explanations, incriminating statements, or admissions of guilt is one of the most important things you can do when interacting with police. The Fifth Amendment of the United States Constitution, as well as Article I, Section 12 of the Utah Constitution each protect your right to not be forced to answer any questions that may be used as evidence against you. When interacting with police you are required to give them your real first and last name. Otherwise, you may exercise your right to remain silent by simply not responding to any additional questions, or by expressing verbally: “I am exercising my Fifth Amendment right to remain silent and asking to speak with my lawyer.” 

If you are pulled over by police

If you are pulled over in your car you will be asked for your driver’s license, vehicle registration, and proof of insurance, but you may decline to answer additional questions beyond simple identification. You are not required to tell police where you are coming from, or going to. Any passengers in your vehicle also have the right to remain silent if they are asked questions.

If police show up at your apartment or home

If police officers arrive at your home and want to ask you some questions, you have the right to decline to answer and remain silent. You should not invite police inside your home or apartment while you are speaking with them, rather talk with them through the closed door or briefly step outside to speak with them.  

If you are taken into custody

If you are arrested and taken into custody you have the right to remain silent while being transported to a jail as well as during any interrogation that may take place at the jail. You will be required to identify yourself by your real full name, but you should not agree to be questioned by law enforcement officers or to sign any statement given to you. If you make a local phone call from the jail to a friend or family member you should not discuss your case with them as these types of calls are monitored and any evidence gathered may be used against you.

Miranda Warnings and the Right to Remain Silent

Due to many popular crime movies and TV shows the protections known as “Miranda Rights” have become some of the most widely known features of US criminal law. The United States Supreme Court ruled in the 1966 case Miranda v Arizona that these protections include the right to remain silent, with the knowledge that anything you say can be used against you in court, as well as the right to an attorney to represent you when accused of a crime. It is important to know, however, that police are not required to inform you of these rights until you are in a “custodial interrogation.

Custodial interrogation consists of conditions where a reasonable person would believe that they were not free to leave, and they were being questioned by police in order to incriminate them. If you choose to voluntarily speak with police outside of custodial interrogation you will not be informed or reminded of your right to remain silent, and any explanation or admission you give to law enforcement may still be used against you in court.  

Before or after being arrested it is never a good idea to give up your right to remain silent without having an attorney to advise you.  

Right to Not Consent to Searches

Your right protecting you against unreasonable searches and seizures can also be critically important prior to, or during an arrest. The Fourth Amendment of the United States Constitution, as well as Article I, Section 14 of the Utah Constitution each protect your privacy against unreasonable searches unsupported by a valid warrant. There are several exceptions where police would not need a warrant to perform a limited search, including after seeing, hearing, or smelling evidence of criminal activity in plain view or when performing a search during a lawful arrest.  

You are not required however, to consent to a search of your vehicle or property if police are asking for your permission to do so. While law enforcement may later obtain a warrant in order to perform the search anyways, it is never a good idea to consent to a search that is not already supported and required by a warrant.  

Right to an Attorney

When someone has been accused of a crime and been arrested, having the right attorney to help them navigate these processes and advocate for their rights is essential. The Sixth Amendment of the United States Constitution, as well as Article I, Section 12 of the Utah Constitution protect the right to an attorney to assist in the defense of persons accused of a crime.  

If you expect that you may be arrested for a crime it is a good idea to consult with a qualified, experienced attorney beforehand so that you can anticipate the legal processes you may encounter. You may want to memorize your attorney’s phone number in order to contact them as soon as possible if you are arrested. You should not agree to answer questions, give any explanations, or sign any statements for law enforcement without obtaining the advice of your attorney beforehand.  

If you believe your rights were violated during or prior to an arrest it is important to retain and share this information with your attorney. You should make a note of when the suspected violation occurred, what happened, and who the police officers were that were involved. The right attorney will be able to object to any such improperly obtained evidence or testimony in order to protect you from a wrongful conviction or excessive sentence.  

In any interaction with police you should continue to be respectful and not resist an arrest, but you also have rights protecting you.  

Originally Published: June 18, 2024

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