General Practice, Solo & Small Firm Division

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American Bar Association - Defending Liberty, Pursuing Justice

June 2008

Vol. 4, No. 3

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Litigation

 

A Checklist for Clients to Have If Arrested

Many attorneys like to either give the following checklist of what to do and not do if arrested. Here is the checklist that I use. This can also go on a website for clients to read.

What to Do If Arrested

Here are things you must do if arrested that may ensure your rights are not violated.

  • Try to remember witness names. Find out their phone numbers, addresses, and other contact information. If you can't remember their names, try to remember someone's name who may know them. For example, if you know they are the bouncer at the bar, find out from another person their name and contact information.
  • Remain silent. Remain Silent. Did I say remain silent?!!! The only thing you can accomplish by talking about your arrest is to hurt your case. You have no obligation to speak with the police. The police may try to trick you and will sound like they are your buddies. Do not speak with the police or anyone else. Ask to speak with an attorney.
  • Be polite and respectful towards the police but be firm, do not speak.
  • Contact your attorney or ask for one immediately. If the police insist on speaking with you, reaffirm your desire to speak with your attorney.
  • Try to remember the badge numbers of any officers you are involved with, as well as their patrol car number(s) and which police agency they are from. Many times there are multiple police agencies responding to a call (i.e. local, county or state).
  • Make sure that your attorney is present for any lineups or testing (such as drawing a blood sample). Demand that your attorney be present.
  • If you are injured, be sure to take photographs of the injuries as soon as possible and get medical attention at once. Make sure to go into detail with the medical staff about the type of injury and cause of injury, including names.

What Not to Do If Arrested

  • Speak—do not speak with anyone.
  • Do not say anything about the incident to the police or cellmates. The police will often put an informant in the cell with you or a cellmate may try to embellish what you say so that the cellmate can cut a deal with police.
  • Treat the police with respect, do not argue, raise your voice, or get belligerent. If you are at the police station under arrest, the district attorney will be the person that determines your future, not the police. Let the police do their job: be nice and be quiet.
  • Do not run from the police for several reasons: first it will not look good in court; second, they will probably catch you; and lastly, once they catch you, the police may get injured tackling you and additional charges may be leveled against you—some of which are felonies.
  • Under no circumstances give the police permission to search anything. They may still search, but make sure it is without your permission.
  • If the police come to your home or apartment, do not let them in unless they have a search warrant. If they have an arrest warrant for you, go outside with the police; otherwise, do not go outside. It may be that they need an arrest warrant to arrest you in your home and, if you go outside, you may be arrested without a warrant. If the police bring you to your home to get clothes, etc., refuse. The police may use this technique to gain entry into your home.

How to Know If You Have Been Arrested

If the police are there and you are taken into custody and are no longer free to walk away, then you have been arrested. The police may only arrest you if they either witness the crime, have an arrest warrant, or have probable cause that a crime has been committed and believe you are the suspect and are responsible.

What Is Probable Cause?

Under the United States Constitution, the probable cause requirement limits the power of the police to deprive people of liberty—this can be found in the Fourteenth Amendment as it speaks about the deprivation of liberty and rights without the due process of law. A determination of whether the police established probable cause is made on a case–by–case basis, and a judge makes the final determination. This is usually a fact–specific determination, as each set of circumstances will be different.

Peter LaSorsa is in private practice where he concentrates on sexual harassment, wrongful death, personal injury, and criminal cases. Pete is the vice–chair of the ISBA Corporate Law Department Section Council, section member of the ISBA Federal Civil Practice and Committee on Legal Technology. Pete is also a member of the ABA Science and Technology Committee. Pete has offices in Mapleton and Chicago, Illinois, and can be reached at or by visiting lasorsalaw.com.

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