(Material courtesy of ACT UP)
YOU ARE UNDER ARREST
~ Ronald Kuby and William Kunstler
You are standing on Avenue A shouting “No Housing, No Peace.” Suddenly, some huge ex-football player from Suffolk County jumps you from behind and slams your face into the concrete. He is wearing a blue outfit, a gun, and is putting handcuffs on you. What has happened? You are under arrest!
You are under arrest when the police, by their words (Halt or I’ll shoot!) or their conduct (grabbing your arms and hurling you into a vehicle) make it clear that you are not free to leave. If you have any doubt as to whether you are under arrest, ask! (Assuming your mouth is not full of blood and teeth.)
The police do not have to pronounce any magic words for you to be under arrest. And get this-contrary to the teaching of a generation of TV-the police do not have to “read you your rights.” Most people (and many criminals) still believe that a police failure to recite the Miranda warnings means the case has to be thrown out. Not true. There is nothing sadder than the look on the face of an otherwise hardened killer when you break this news to him. (Well, almost nothing sadder.)
A brief digression: (Like many myths, the “he did not read me my rights so I go free” is one that can trace its origins to something in objective reality. Back in 1966, the Supreme Court held that the failure of the police to tell a suspect that he had the right to remain silent, and to a free lawyer before being questioned, meant that nothing the suspect said could be used against him. So the Court put a crimp in the time-honored police practice of beating a confession out of a suspect. Many suspects had to be released because the only evidence against them was a confession extracted through torture. Eventually, many police learned how to get evidence without hitting people (although they still beat suspects just for fun). This other evidence-eyewitness statements that you pulled the trigger, your blood-stained clothing, the recently fired gun, etc.-has nothing to do with you making a statement and nothing to do with whether you were read your rights.)
Ok. So you are in the squad car, going to the police station. As a general rule, the best policy is for you to keep your mouth shut. Do try to avoid saying dumb things like “I didn’t mean to do it; everyone else was doing it” and “I just meant to rob the guy, I didn’t know that Joe would shoot him.” Do not try to talk yourself out of the arrest. The only thing that you can influence at this point is whether you go “through the system”.
If you are charged with an E felony or lower (including misdemeanors) the police get to decide whether they will issue you a Summons / Desk Appearance Ticket (DAT) and release you, or whether to put you through the system, forcing you to spend at least 24 and perhaps as many as 72 hours in various dirty holding cells as you wend your way through the intestines of the booking system, only to be dumped, looking and smelling like a turd, into a courtroom.
Your chances of getting a Summons/DAT are increased if you:
- Cooperate with arresting officers by providing them with background information and valid identification. This is the only time when it is useful to talk with the cops. If you cannot prove your identity and residence, you will be fingerprinted and placed through the system. Homeless people are regularly put through the system, even for the most minor offenses. Homeless people should give arresting officers some real, verifiable address, even the name of a friend who will confirm that they stay there.
- Arrive “clean”. After an arrest, you will be searched. Possession of weapons or drugs will result in your being put through the system.
- Commit a relatively minor infraction. Sitting down in the street and refusing to move, blocking the entrance to a building, and related conduct generally is treated by a summons. Resisting arrest by going limp is usually treated by a DAT. Assault and property destruction will normally result in your being put through the system.
- Have no outstanding warrants. That court date you missed six months ago (Oh shit! That arrest?) has grown into a bench warrant and will result in your being put through the system.
Lying to the police by showing them false identification is stupid and illegal. It is a crime more serious than the one you are trying to get out of. If they take your fingerprints and you have been printed before under another name, you’re in trouble.
Sometimes, a lawyer or responsible adult calling or showing up at the precinct can influence the police to release you rather than put you through the system. (That is why your lawyers usually do not stand there during demonstrations and call the police “fucking pigs.”)
If the police use summons procedures, you will be taken to a precinct house. A police officer will ask you background questions. You will then be issued a pink slip of paper with a court date, usually a month from the arrest date, and place. Save this paper. You will then be released. If you do not show up within 30 days after your date, a warrant will be issued for your arrest. Persons arrested at the same time may be given different court dates-a tactic often used to prevent mass demonstrations at the courthouse. Because of the 30-day rule, you have some flexibility in scheduling your court appearance. Like everything else, going to court is more fun with your friends.
DAT procedure is similar, except that you are often fingerprinted at the station and the prints are faxed off for a warrant check. This usually takes about 3 hours. You are given an 8 1/2 x 11 sheet of paper with a court date and a room number. Unlike the summons, if you do not show up on the date given, a warrant will be issued for your arrest.
If the police put you through the system, you will first go to the precinct for a few hours. From there, you will be taken to Central Booking and you will be photographed (mug shot) and fingerprinted. You have no right to refuse these procedures, and you will not be released until they are completed. You will also be interviewed by a representative from “pretrial services”. The result of this interview will be used by the judge in determining whether you should be released on your own promise to appear (release on own recognizance, or ROR). It is important to give them the name and telephone number of someone who can verify the information that you provide. Following this process, which may take up to five hours, you will be taken to one of the precincts and held in a small cell for as long as forty-eight hours. They will take your belt and shoelaces away (really!) while you are in the holding cell. Finally, you will be brought to court, where you will wait in the basement in another cell, as long as overnight. You will be brought “upstairs” to yet another cell, where you will wait a bit longer before getting to see a judge. Just before you see the judge, you will see an attorney, either Legal Aid or from your defense committee.
A trip through the system is no fun, but you can do it. Bring cigarettes, even if you do not smoke. They are the jail system equivalent of barter. A toothbrush is also a handy and useful item of personal hygiene to bring with you.
Once you are in the system, the only way out is to wait until you get to see a judge. Be prepared for the wait. No magazines are furnished. Make sure that your personal matters are taken of. The jail guards do not care about your pets, children, or you. Persons who require daily doses of medication will have their medication confiscated and will not be able to persuade anyone to return it.
Yes, there is a court decision requiring you to be produced before a judge within 24 hours or released. No, it does not help you. In fact, it hurts you because the remedy for the delay is release. The serious felonies are processed first, to prevent them from being released. Since you are getting out anyway, unless you shot the President, you often go to to the end of the line. The Catch-22 for you is that a judge will order you released after 24 hours but it can take 72 hours to see the judge.
DISCLAIMER: The advice given here is meant as a general statement of the law, and should not substitute your spending a pile of money on a real flesh and blood lawyer.