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You're under arrest! Or are you?

In the movies and on television, the "bad guy" isn't necessarily under arrest until the cop slaps on the handcuffs. That makes for great cinema, but are handcuffs the hallmark of an arrest in real life? Not necessarily.

Anytime a police officer has control over your movements, or the lack thereof, you may be under arrest. If the officer simply tells you that you are under arrest, then you will want to assume that you cannot leave and that your movements are restricted from that point forward.

So, under what circumstances do you consider yourself legally under arrest?

Lawful arrests ordinarily occur under the following circumstances:

  • If a judge issues an arrest warrant. The judge reviews a sworn statement from police before issuing such a warrant, which gives officers the legal authority to arrest the individual identified in the warrant for a particular crime, who may be located at a particular location or locations.
  • When a police officer believes he or she has probable cause. Based on certain circumstances and facts, an officer may have a reasonable belief in the existence of a particular crime. The available evidence may provide sufficient probable cause for the arrest.
  • When a police officer sees a crime occur. If the officer witnesses the commission of a crime, he or she may make a lawful arrest of the person believed to have committed it.

As you can see, the law bases much of the arrest process on the subjectivity of the officer or officers involved in it. Because no one is infallible, it may turn out that the arrest may not stand up in court.

You have the right to challenge your arrest

The U.S. Constitution provides you with certain rights when it comes to your interactions with the government, particularly the criminal justice system. These rights include activities surrounding the search and seizure of alleged evidence, which may provide evidence to obtain an arrest warrant or to establish probable cause. They also include whether officers or investigators can question you (your right to remain silent), along with whether officers allow you to talk to an attorney.

Your Constitutional rights are non-negotiable, and if an officer fails to establish probable cause for your arrest, it will affect the outcome of your case. If you find yourself under arrest, it would be to your benefit to invoke your right to remain silent, except to ask for an attorney who can review your situation, explain your rights and outline your legal options.

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