Areas of Practice
Los Angeles Criminal Defense - What is Entrapment?
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Q: What rules do the police have to follow when arresting someone?
A: They’re supposed to have probable cause to arrest you. They’re supposed to only use reasonable force and if they have you in custody and they interrogate you they’re supposed to read you your Miranda Rights.
Q: What is “reasonable force”?
A: Reasonable force is the amount of force that a reasonable person would deem necessary under similar circumstances. So, if a person is using fists a police officer could certainly use their fists. That would be considered reasonable force. Maybe a tazer would be considered reasonable force against fists. A gun: probably not. The remedy for reasonable force is if the police use something other in excess of reasonable force, a person is then entitled to use reasonable force in turn to resist that force.
Q: What is “resisting arrest”?
A: Resisting arrest is just like it sounds. If the police have probably cause to arrest you and you delay or resist them in any way you can be charged with usually a misdemeanor “resisting arrest”.
Q: Do the police have to read me my rights?
A: The police only have to read you your rights if it is custodial interrogation. Meaning you are in-custody and they are asking you questions to incriminate you. People always come to me and say “The police didn’t read me my rights.” Most times, the police have enough evidence already that they don’t have to read you your rights. They only read you your rights if they need to prove more and they need your statements to do it which is why you should never talk to the police and always wait for an attorney even if you’re innocent. Especially if you’re innocent.
Q: When am I legally under arrest?
A: It’s a legal task when you are no longer free to leave. It’s not what’s in your head, it’s what’s in the cops head. So, if the jail doors close you’re generally under arrest. If the handcuffs are on, you might just be being detained but if they take you down to the station you’re probably under arrest. It’s what’s in the cops head, not what’s in yours.
Q: What is an arrest warrant?
A: An arrest warrant is when they have already charged you with a crime. So, say they know a robbery has taken place, they have pictures of you doing it, they’ll go to a magistrate (just like a search warrant) and then they will sign an arrest warrant for you at which point the judge will set a bail and then the cops can come get you. In order for them to come get you in your home there is something called a Leon Warrant which is a Supreme Court case that they need to have a special arrest warrant to be able to come get you in your home.
Q: How do the police obtain an arrest warrant?
A: The police obtain an arrest warrant by going to the District Attorney with evidence and reports that this person has committed a crime. They get the D.A. to file charges. Once the D.A. has filed charges they then take that to a judge and a judge has to sign an arrest warrant
Q: Are the police required to have a warrant to arrest me?
A: The general answer is no. Generally, when they are out on the streets there’s no time for a warrant. A citizen will report a crime, or the police may view a crime. What’s interesting is the difference between a Felony and a Misdemeanor arrest. For a Felony arrest the police can either observe the crime or a citizen can observe the crime and report it to the police. In order for police to arrest on a Misdemeanor, that misdemeanor must be committed in their presence.
Q: What is probable cause?
A: Probable cause is when the police have a reasonable, articulable suspicion that a crime has been committed and that you are the person involved in that crime or has committed that crime.
Q: Are the police required to tell me what I’m being arrested for?
A: No. The police are not required. Within 72 hours you have the right to be brought before a magistrate or released. When you are brought before a magistrate, that’s when the charges will be read against you.
Q: Do my rights change when I’m under arrest?
A: You have the right to remain silent. If they’re going to question you, you have the right to an attorney. You also have the right to be brought before a magistrate within 72 hours and charged. You also have to be treated reasonably.
Q: Can the charges the police arrested me for be changed?
A: Absolutely. The charges can be changed. The police officers aren’t lawyers. They have probably cause to believe a crime has been committed. For instance, they might find somebody with drugs on them, they might find a large amount of cash, they may arrest them for drug dealing or drug possession. A lawyer (a District Attorney) would then review the file, review the law and place charges on them. The lawyers are the ones that know what the law is and what charges should be filed. Charges are often enhanced, sometimes there’s not enough there and charges are dismissed. It is up to the prosecuting attorneys to decide what the charges are.
Q: Once the police have arrested me, do I have to answer their questions?
A: No. You have the right to remain silent. You always have the right to remain silent. You should never answer the police’s questions, you should never talk your way out of it. The problem that people have is that they always believe they can talk their way out of it because they’ve talked their way out of it in the past. You should never assume that. You should always ask for a lawyer.
Q: Is it legal for the police to lie when they are interrogating me?
A: Yes, the police lie all the time about evidence against you. It is an accepted interrogation technique to lie to you and to present false evidence.
Q: If I’m innocent, should I talk to the police?
A: No. If you are innocent it is especially important to have a lawyer. Innocent people or people that are being questioned by the police call me all the time for representation. You need to be protected by a lawyer. Our prisons are full of people that claim they’re innocent and some of those people are actually telling the truth.
Q: Can I sign away my rights?
A: Certain rights you can sign away. You can sign away your right to remain silent. The rights have to be under a three prong test. They must be knowing, intelligent and voluntary. What does that mean? You have to understand the language, you have to not be under drugs, you have to not be under the threat of intimidation. As long as it’s basically free and voluntary and you understand what you’re doing you can give away certain rights.
Q: When can someone perform a citizen’s arrest?
A: If a crime is committed in your presence a person can make a citizen’s arrest. This usually comes up in battery between two individuals. Two neighbors are fighting and someone punches somebody else, throws something at somebody else, this is usually where a citizen’s arrest comes into effect.
Q: How long can I be detained without being formally arrested?
A: That depends. The answer is as long as it reasonably takes the police to conduct an investigation.
Q: What is the “booking process”?
A: Once somebody has been arrested, but often before they are charged, it’s the process by which people are processed into the police department or into the jails. You are photographed, the “mug shot”, front, sideways. Then, they are fingerprinted. They take your fingers, they do the old ink blots but now much of it is computerized. They run your fingerprints through the computer, they assign you a number, and process you into the jail. It is a processing and tracking system for law enforcement and the courts to keep track of you.