What is an Arrest?

It happens all the time when we are discussing a client's pending charges for a traffic misdemeanor or an ordinance violation: we ask about his/her arrest, and the response is "I wasn't arrested." Obviously, there is a different understanding between what law enforcement, the general public, and lawyers all believe constitutes an "arrest." If you thought you knew, read on, as you probably have a much different understanding about what constitutes an arrest.

Place Your Hands on the Police Car!

Obviously, some situations are clearly an arrest, just like in the movies or on TV: the offender is having the handcuffs slapped on, as the arresting detectives or officers announce "you are under arrest" and begin reciting what is known as the Miranda warnings. You have heard them many times before on TV: "You have the right to remain silent, anything you say can be used against you in a court of law, you have the right to have an attorney present during any questioning, if you cannot afford an attorney, one will be provided for you by the court," and so on. However, not all arrest situations follow this stereotypical situation, and it is possible to be arrested and not even realize that it has happened.

Let us say you are operating an automobile, and you are pulled over for speeding. The officer asks you for your driver's license and proof of insurance. He then orders you to wait in your car, and he walks away, and reenters his squad car. He runs your information, and upon his return some 5-10 minutes later, he hands you a uniform traffic citation charging you with speeding. The police officer has taken your driver's license as your "bond," and you have been provided with court date information. Believe it or not, you were just "arrested" and you didn't even know it, because your time "in custody" was very short lived.

Are You "Free to Leave"?

So what is an arrest? Simply put, any time an individual's freedom of movement has been restricted or denied by a law enforcement officer, such that a reasonable person would not feel that in the moment they "free to leave". That is what equals an arrest. One does not have to have the cuffs slapped on, or weapons drawn, or have Miranda warnings read in order to be "arrested." When an officer exerts his or her authority to "hold" you, and you cannot leave, you have been arrested. If you have been detained even for just a moment, then that is considered to be an arrest by operation of law.

Your 4th Amendment Rights & The Exclusionary Rule

So why is this important? Because despite the ongoing efforts of some to gut the 4th Amendment of the U.S. Constitution (and relevant sections of Illinois or other state constitutions) to further erode your civil rights, you do in fact still have a constitutional right to be protected from "unreasonable searches and seizures". When such an unreason search or seizure has taken place, something called the "Exclusionary Rule" that applies to evidence discovered by police after making an arrest that was not based upon proper lawful authority.

What this rule can do for you is this: If at the time you were objectively "under arrest" and the police lacked the required amount of "probable cause" to believe that you were committing a crime in their presence, or that you had just committed a crime, or that you were about to commit a crime, any evidence the police obtained improperly may be subject to a court order suppressing and barring the State from using that evidence at a trial on the merits. This can mean the difference between being convicted of a crime or being set free.

Speak to a Chicago Criminal Lawyer Now

There are many ways that a person may be arrested. Having your door kicked in by police yelling "warrant!", police outside your home pointing weapons, throwing you down, handcuffing you, and dragging you off, or being pulled over in your car are just some of these. But whether you were released after being fully processed at the station, or held in a lock-up for some time, or simply allowed to leave at the scene of the stop with your tickets, you were indeed arrested, and you need the services of a lawyer to help sort your case out. Call us here at Mitchell S. Sexner & Associates LLC for a free, no cost, completely confidential, no obligation consultation today.