Lois & Clark Forums Forums Fan Fiction Fanfic Related Getting arrested

Help needed!

When a person is arrested in the USA they are handcuffed, right? And the arresting police officer has to say: 'You have the right to remain silent' etc etc.

So, what's the rest of that speech? <g>

Somebody's getting arrested in my story and I'd like to write it down correctly.

Thanks for helping out!

They're called the Miranda Rights (because they were made mandatory after the court case Miranda v. Arizona) and when an officer reads them (or recites them) to the suspect, it's called Mirandizing them. They don't actually have to be read when they are being handcuffed, they just have to be read before they are questioned or held as a suspect. But most TV shows/movies have them being read at the time of the arrest. They must be read word for word, and the suspect must acknowledge that he/she understands them.

WARNING OF RIGHTS
1. You have the right to remain silent and refuse to answer questions. Do you understand?
2. Anything you do say may be used against you in a court of law. Do you understand?
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?
5. If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?
6. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

Thank you so much, Annie!

Let's say the police comes and arrests someone at their home or at their place of work and they want to search the premises: then they'd need a search warrant, right? Does the police always have to contact and get the signature of a judge before they can do so? I seem to remember that without such a warrant anything the police would find at such premises would not be permitted as evidence in a court case. Is this correct or does it differ from state to state? I need this kind of procedure in Metropolis.

Thanks for helping out!

I'm pretty sure that's right. They have to get a search warrant, issued and signed by a judge, otherwise anything they found would be inadmissable - 'illegal search and seizure'. And I'm pretty sure it's a federal law - applies to all states.

Jill

P.S. Never actually seen all of the Miranda rights - on TV they usually start beating up the guy that they're arresting by the time they get to the 3rd or 4th one. <g> Thanks for posting those, Annie.

Now, I could be wrong (I often am) but I think if they go to arrest someone and the evidence is in plain sight, a search warrant is not needed. They may need a search warrant to look for further evidence, but I'm not sure.

Um, here's a legal definition of a search warrant.. if you can understand all of the legalese. ;-)

http://www.lectlaw.com/def2/s117.htm

Course, you could go watch Church of Metropolis and hear most of the Miranda rights while also watching Clark in a cop's uniform....

Any excuse....

LabRat (and you could even take a couple of moments to appreciate shirtless Clark in the previous scene...)

Yes! That's the word I was looking for - inadmissable. Thanks, Jill, for the confirmation.

And Karen, thanks for the link. I'm going to read all that right now!

LabRat, you're bad! All those shirtless Clarkies...

How come you know this about Church of Metropolis? Have you just watched that episode or do you just know these tidbits off the top of your head? What an amazing memory!

I watch a lot of Law & Order, so I did a little research, and a bell dinged in my head. You don't always need a search warrant.

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person's surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.
To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant's immediate control. For example, an arresting officer may search not only a suspect's clothes, but also the suspect's wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant's immediate control, an officer would have to obtain a warrant. However, the police may make what's known as a "protective sweep" following an arrest. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.

There are other instances of when you don't need a search warrant, so I'll post the link where I found it all.

http://www.nolo.com/lawcenter/ency/article.cfm/objectID/50CD91FC-B21D-4BE7-BA4818C8E29AC758

Ciao
Jen

I COULDN'T resist

Go here to hear Clark say it

You Have The Right

I couldn't resist adding the barechest



I'm guessing the addition of Do you understand after every sentence came after 1994?

Thanks Jen, that's good to know. Didn't realize that.

This is all very interesting and helpful information. I'm copying & pasting all of it in a word doc for easy reference. Thanks, all!

Trenna, you're as bad as the Rat!

Cool, Jen! Now that you mention all that extra stuff - yeah, I remember hearing a lot of that on Law and Order too.

I must stop basing all of my knowledge of the the law on what Soap Operas tell me (and LnC and Buffy, etc...). Sometimes they don't all quite mesh.

Trust me, Ursie - Clark in a cop's uniform just after being semi-naked? Never to be forgotten.

LabRat

LOL!

I think I'll dig up my copy of that ep and go watch it - now! Heheheh. I can even do that under the pretext of doing research on how a policeman should arrest a suspect!

LOL! Now that's what I call research.

But be aware that what Clark was doing was illegal and it could have landed him in jail. I thought it was pretty funny that Mayson was upset about Superman making citizen's arrests without reading rights, but she had no problem with him impersonating a police officer, LOL!

Ah, gotta love plotholes. (But who cares when you get shirtless Clark and Clark in uniform. Swoon! )

Kathy

ROTFL, Rat!

El (who loves men in uniforms )

Yeah, everyone's been over it pretty well, but I thought I'd just confirm things. Search incident to arrest is fine to protect a cop's safety. Generally, that's just plain sight and whatever is in the suspect's reach. Getting a search warrant after executing an arrest is usually pretty darn easy. If you had probable cause enough to convince the clerk magistrate that you needed an arrest warrant, you can usually bootstrap your search warrant on merely that evidence. Technically, you have to wait, though, to get the second warrant to do anything other than a plain sight/safety search. There are mitigating circumstances if a cop believes a crime is in progress and there are other people in danger. So if you bust into a murder scene, you can search for other potential victims or people who were attacked and may still be alive, but no going through drawers.

Okay, got that. Rac, does that mean that the cops can't do a body search on a suspect? Go through his pockets and his wallet? Do they have to bring him in and book him first and then go through his pockets?

Am I allowed to open my mouth here? The question isn't aimed at me, but since I'm here...going through the suspects clothes and pockets during an arrest is a safety measure that doesn't require a warrant. I'm *assuming* if they're looking for a gun or knife on them but wind up finding, say, the stolen diamonds or whatever that it's admissible in court...

Jen

If you arrest someone, you can totally search him/her for weapons on his/her person or within his/her reach. If you arrest someone in their car, you can search the whole car, pretty much. (The law is still unclear on this point, the Supreme Court keeps waffling on whether the trunk is okay, or just the passenger area, it's really a mess of an area of law). You usually can't search a wallet, unless you have some good reason to believe a weapon can be in there. Cops just generally claim 'razor blades!' and thus get Carte Blanche to search everything on the suspect's person.

A cop actually doesn't need to affect an arrest in order to 'pat someone down.' If a cop has reasonable suspicion (which is a lower threshold than probable cause, which isn't that high to begin with) that a person is armed and dangerous after engaging them in a conversation, they can request to do a Terry stop pat down. They cop can pat the person down for weapons, but cannot search anything that is clearly not a weapon.


Rac (Who swears this knowledge comes from Crim. class and working in the District Attorney's office, and not from watching Law & Order )

There are no handles on the inside of the backseaof police cars...

LOL, Jen! I'm so glad you did! All of you!

This is a lot of useful information and it's great that I don't have to search for it on the Net myself. You FoLCs always come through. You're the best!

actually, that reminds me of something called "the dropsies." a cop can't search your pockets prior to an arrest without a warent, but he can stop you if he sees that you have something illegal. so, many criminals suddenly and mysteriously became klutzes, according to police reports.

that is, i've been told that there are a lot more police reports than you'd expect which mention, for example, an arrest for posession of drugs having occured after the suspect accidentally dropped a bag of cocaine (which was subsequently found in his pocket during the arrest).

that's not to say that the bag was planted, simply that it was reported as having been clearly visible.

i don't remember where i heard that, though, so i'm not sure how true it is. anyone know?

Paul

Well, I certainly can't speak for the whole country, but I read a lot of police reports in my area and I've never seen anything like this. I'm sure it's possible, but I've never heard of it. Maybe it's more common in really urban areas, but I've never seen it here.

Annie

I'm not quite sure if I'm even answering what you're asking Paul, but I did a little research and came up with a court case that involved dropsies:

PEOPLE of the State of New York, Plaintiff,

v.

James McMURTY, Defendant.

Criminal Court of the City of New York, New York County.

Sept. 3, 1970.

Defendant charged with narcotics violation moved to suppress narcotics which policeman alleged defendant had dropped but which defendant claimed had been taken from his person in illegal search. The Criminal Court of the City of New York, Irving Younger, J., held that 'dropsy testimony,' consisting of testimony of arresting policy officer that suspect dropped packet of narcotic drugs to the ground should be scrutinized with especial caution. The court held, however, that where arresting officer testified that defendant had dropped plastic container containing narcotics and defendant testified that he had not dropped the narcotics and there was no independent contradiction of policeman or independent corroboration of defendant, motion to suppress would be denied.

Motion denied.

Oh, totally off topic, but this reminds me of a hilarious legal summing up that someone posted to the fanfic list ages ago. Was it Nan perhaps?

Anyone want to post it in OT? I remember it had me in tears of laughter at the time.

LabRat

I think that was me, but God only knows if I saved the file/link anywhere... I'll look, though

PJ