Inspired. Creative. Resourceful.

Legal Rights Prior To An Arrest

On Behalf of | Mar 9, 2013 | Firm News |

By now most people have heard at least a little about the ongoing investigation and trial of Oscar Pistorius, famous track star, who is accused of shooting his model girlfriend in cold blood. At times, the story trumps even the best Soap-Opera Hollywood has to offer; but despite its many twists and turns, the case highlights some of the important considerations underpinning police investigations. It’s hard to draw direct parallels because of differences between United States and South African law, but let’s assume that this case had happened right here in California.

As a suspect, you have rights. While those rights might change based on specific circumstances, some general principles can be broadly applied. Prior to arrest, you have a right to walk away from an officer. If you don’t feel like you would be allowed to do that, you may already be effectively under arrest which means that an officer should probably be reading your rights to you. If in doubt, ask. You may get a conflicting answer but you’ll pressure the officers to clarify the situation. A simple “I need to get going, am I free to leave?” should head things in the right direction. Whatever you do, be respectful and remain calm.

Prior to Arrest:

Even without an arrest, officers do have some authority to question you, and to expect truthful answers. This does not, however, mean that you must volunteer information. Also prior to arrest, authorities have numerous, sometimes overlapping, powers of search and seizure, most often in connection with securing evidence that can be easily destroyed or ensuring officer safety. However, there are limits. Typically the things that you say only serve to expand police powers, so watch your words. The safest approach is to turn down any request to search you or your property. If the officers have the right, and sometime when they do not, they’ll go ahead and conduct their search despite your “no”. Do not worry, if their search is against the law, you’ll have your rights vindicated later with the help of an experienced criminal defense attorney.

This situation frequently comes up in homes or cars where an officer might ask to “have a look around” or to “see what’s in your trunk”. What they are really asking is for permission to conduct a search. This suggests that they don’t feel secure in their power to conduct the search without your permission. What many people don’t realize is that it’s perfectly acceptable to say “NO” and that the officers should respect your refusal unless they are willing to take things to the next level and place you under arrest.

Be sure that your “no” is clear and unequivocal. Saying things like “I don’t know”, or “maybe”, or even just keeping quiet might be taken as a yes. Even if you clearly say no, the officers might still conduct the search, but your attorney can often help you get the unlawfully seized evidence excluded from any judicial proceeding. Alternatively, the officers might start pressuring you to change your mind. Don’t do it, caving to the pressure and saying yes against better judgment frequently destroys a suspect’s best legal defenses. Be respectful and reiterate your unequivocal denial of consent.

After an Arrest:

Once an arrest is in progress, your freedom to leave has been terminated, but some other rights come into play such as your right to an attorney. If you are arrested, you are not suddenly required to volunteer potentially unlawful information. It’s important to remember that at no point in the process are you ever required to divulge information that might incriminate you. Once you are under arrest, the authorities have the power to restrain you and probably to search you for evidence or weapons.  From this point on, it’s generally a good idea to keep quiet until you talk to a lawyer. You might think that a clever story will quickly resolve the situation but it will probably just make your defense all the more difficult down the road.

Whatever you do, don’t try to struggle or fight with the officers. Getting arrested can be terrifying and humiliating but you do not want to make the situation worse. You’ll get a chance to talk to a lawyer, even if you don’t have money for one, and a chance to have your story heard. Remember to be patient and that an arrest does not equal a conviction.


This area of the law is complex. Highly qualified lawyers and judges often disagree about the correct outcome of even the smallest of cases. You absolutely must contact an attorney for specific advice in your situation. What I’ve written here is only the barest overview of a wide range of rights and police powers. No web article, no matter how thorough, can ever replace personalized legal advice.