Rights During Arrest
by: Carl Vinson Institute of Government, University of Georgia
Arrest, Search and Seizure
This document tells you the following:
What must police officers do to get an arrest warrant?
What are reasonable grounds?
In what situations may a police office make an arrest without a warrant?
What are citizens' arrests?
What are the "Miranda Warnings" and what do they mean?
What is the exclusionary rule?
Can Miranda rights be waived?
To what kinds of confessions does the Miranda ruling apply?
You may be aware that there are many laws regulating arrest. Likewise, many laws regulate search and seizure. These laws ensure that each person is treated fairly in situations in which arrests and searches and seizures occur. In this chapter, you will discover what some of these laws are and how they protect your rights. You will also see how important it is that those making arrests or searches follow the laws.
To illustrate, we will follow the Case of the Central City Drug Bust.
Case of the Central City Drug Bust
Three Central City High School sophomores went to the mall one afternoon. The three—Sandra, Alan, and Jim—were approached by a 22-year-old woman. She offered to sell them grass (marijuana) and cocaine. Jim made a purchase.
After telling his friends he'd meet them later, Jim talked with the dealer, Daisy. He asked if he could become a seller at the high school. Jim was anxious to make some money. His bike needed repairs, and he wanted to buy some stereo equipment.
Daisy Dealer suggested that they return to the "drug warehouse." There, they could discuss the possibility with her supplier, Harry Wholesaler. They drove to an old, converted garage. They didn't know that the police had a stakeout on the garage. A raid was planned that afternoon.
Jim and Daisy were at the drug warehouse. They were talking with Harry Wholesaler. The police closed in on the warehouse within the hour. Jim, Daisy, and Harry were arrested. Note that in formal terms, Jim, as a juvenile, was "taken into custody" rather than "arrested."(See Juvenile Justice Subtopic of Criminal Law Topic.)
ARREST
Arrests are usually made by an authorized person, such as a police officer or sheriff. These officials may arrest with a warrant or, under certain circumstances, without one. A warrant is a document giving authority to do something—in this case, arrest.
With a Warrant
How do police obtain a warrant? First, a police officer or private citizen makes a sworn statement, an affidavit, before a judge (see the affidavit below).
Affidavit for Arrest Warrant
Georgia,____________________County
Personally came_____________________ , who on
oath says that to the best of his knowledge and belief,
__________________ did on the______day
of__________, in the year_______, in the county
aforesaid, commit the offense of______________ .
The place of occurrence of said offense being
______________and against________________ .
Said offense being described as________________
__________________________________________
and this deponent makes this affidavit that a warrant
may issue for his arrest.___________________
(signature)
Sworn to and subscribed before me, this the _____ day of______________ , 20_____ .
_______________, Judge of____________ County
Magistrate Court
Georgia law requires that the affidavit identify:
• the person to be arrested, • the offense said to have been committed, • the date and time it was committed, • the person against whom the offense was committed, and • the place of the offense.
These requirements enable the authorities to inform the accused of the specific charges against him or her. You may recall that one aspect of due process is notice. Persons likely to suffer loss of life, liberty, or property must be notified of the charges against them. Note that as a private citizen, you should not initiate criminal action against someone without strong reasons. If you wrongfully accuse someone of a crime, you could be sued.
The evidence presented in the affidavit must be convincing. The judge issuing the warrant must find probable cause to believe that the accused committed the offense. Probable cause means that there is more than a mere suspicion. There must be reasonable grounds to suspect that the person committed the crime.
Consider situation 1:
SITUATION 1 It's about 10 p.m. In the apartment next to Mrs. Jones, a burglary is occurring. Mrs. Jones is looking out her window. During the next hour, in the light from the street lamp, she clearly sees the following events: a. Ms. Brown, the upstairs neighbor, puts several large boxes into her car. She seems uneasy, almost fearful. Finally, Ms. Brown jumps into her car and speeds away. b. Nick begins pacing back and forth in front of the apartment building. From time to time, he glances at his watch. Nick was arrested once before. c. The nephew of a friend of Mrs. Jones is climbing out the window of the burglarized apartment. He is carrying a small television set.
Do you think that a judge would find probable cause to issue a warrant for Ms. Brown, Nick, or the friend's nephew? Are there reasonable grounds to issue warrants?
A judge is not likely to issue an arrest warrant for burglary for Ms. Brown or Nick. The fact that Nick has been arrested before is not relevant. Ms. Brown has a legal right to put boxes in her car if they are hers. The judge has not been given enough information to indicate that the boxes belong to the neighbor being burglarized. Therefore, the judge would probably not find probable cause to issue a warrant for Ms. Brown. A judge is likely, however, to find probable cause in the case of the nephew.
Without a Warrant
Can arrests be made in Georgia without a warrant? State law allows a police officer to arrest someone without a warrant in only four situations.
They are as follows:
1. when the offense is committed in the officer's presence or with his or her immediate knowledge
2. when an offender is attempting to escape
3. when there is probable cause to believe an act of family violence has occurred
4. for such other cause if there is likely to be a failure of justice because a judge is not available to issue a warrant
The reasons for exceptions one, two, and three are clear. In none of the situations would there be time to get a warrant. For example, suppose a police officer sees someone snatch a purse. In all likelihood, the person is not going to wait around while the officer goes to get a warrant to arrest him. The fourth exception gives the officers and the state (represented by the prosecutor) a general reason to argue that the arrest was valid without a warrant. Unless responding to one of these four exceptions, a police officer may arrest only with a warrant. Otherwise, the arrest is illegal.
Citizen's Arrests
As a private citizen, you have no authority to arrest anyone with a warrant. Without a warrant, you may arrest anyone who commits a mis-demeanor or a felony in your presence or with your immediate knowledge. A citizen's arrest occurs when a citizen prevents a suspect from leaving a scene. Citizen's arrest most often happens in cases like shoplifting, when the store's manager detains the suspected offender. However, as the following example shows, the manager or employee cannot make such an arrest in every case.
In Winn Dixie Stores Inc. v. Nichols, 205 Ga. App. 308, 422 S.E. 2d 209 (1992), a Winn Dixie customer complained to management that another customer stole her wallet. The court held that the limited rights of merchants to detain or arrest a person reasonably believed to have committed a shoplifting offense do not authorize a merchant to detain or arrest individuals accused by store patrons of committing crimes against other patrons. To make the arrest, an employee would have had to actually see the criminal act committed. Therefore, it was ruled that management had no authority to arrest the alleged criminal. The court suggested that the only person who could have made the citizen's arrest was the robbed customer herself.
When making a citizen's arrest, a person may not use more force than is reasonable to make the arrest. Deadly force is limited to self-defense or to instances in which such force is necessary to prevent certain felonies.
It must be stressed that the right of private citizens to make a citizen's arrest is limited. They cannot arrest people for violating local ordinances or regulations because these violations are not technically crimes as defined by state law. Therefore, as a private citizen, you would not have the authority to arrest a person who is creating a disturbance by making too much noise. In addition, a private person can only make a citizen's arrest for the purpose of bringing the suspect before a judicial officer
CASE OF THE CENTRAL CITY DRUG BUST, continued
The police had been investigating this case for several months prior to the raid on the drug warehouse. During that time, several undercover narcotics officers (often referred to as narcs) had made "buys" from Daisy and her boss, Harry. Detective-Sergeant Penny had also witnessed two sales to other persons.
The police had presented this information to Judge Stern of Middle County Magistrate Court. The information had convinced the judge that there was probable cause to believe that Daisy and Harry had committed a crime, so he issued arrest and search warrants for Daisy, Harry, and the warehouse. The arresting officers charged Daisy and Harry with several crimes. (Not all of these crimes were identified in the warrant.)
They were charged with: • possession of a Schedule II drug (cocaine), with intent to sell (possession of 28 grams or more of cocaine shows intent to sell), • sale of a Schedule II drug, • trafficking in marijuana (possession of more than 50 pounds), and • contributing to the delinquency of a minor.
Harry and Daisy were, to say the least, in a great deal of trouble. (Note the stiff penalties for selling a Schedule I or II drug on page 219.)
Jim was taken into custody without a warrant.
Do you know which of the four exceptions (above) pertains to him? Would it help if you knew that during the raid, one officer saw him trying to get rid of bags with over 50 grams of cocaine? Harry had given them to Jim to sell at school. Also, when Jim was frisked, marijuana (less than an ounce) was found on his person.
Because Jim is under the age of 17, he was "charged" as a juvenile with the "delinquent act" of possession of less than an ounce of marijuana. This act is a misdemeanor if the accused is over the age of 17.
The police also charged Jim with possession with intent to distribute (sell) the cocaine. The charge of selling a Scheduled drug is more serious than mere possession. (A Scheduled drug is considered dangerous, and it is illegal to possess a Scheduled drug without a prescription.) How could the police charge Jim with intent to distribute the cocaine? After all, they couldn't read his mind.
The courts have held that possessing more drugs than a person can reasonably be expected to take for personal use indicates that the person intends to sell the drug. The courts also look at other factors, including whether the accused had a large sum of cash on him or her. Another factor is whether the drugs are in individual packages at the time of the arrest. For example, 10 hits of crack cocaine might be packaged in 10 vials, each containing 1 hit.
In the case of the Central City Drug Bust, Jim had bags containing over 50 grams of cocaine in all. The amount of cocaine and the manner in which it was packaged indicated he was going to sell it. Therefore, the police charged Jim with possession with intent to distribute the drug.
The police searched Harry, Daisy, and Jim. They quickly handcuffed all three. The police then "read" them their rights.
What does it mean to have read them their rights?
The Miranda Warning
Due process of law requires that, before a person in custody accused of a crime can be questioned, the arresting officer must give that person the Miranda warning. The Miranda warning (see the table below) is made up of a number of rights derived from the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. In the landmark case of Miranda v. Arizona in 1966, the U.S. Supreme Court declared the reading of these rights to be a necessary part of due process of law. 384 U.S. 346 (1966).
Miranda Warning
1. You have the right to remain silent.
2. Anything yousay can and will beused against you in a court of law.
3. You have the right to talk to an attorney and have him present with you while you are being questioned.
4. If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
The Miranda warning is to be given once a suspect is in custody, that is, when the suspect is detained (not free to leave), even if a formal arrest has not taken place. Most important, these rights must be read and understood by the accused before he or she can be questioned.
In practice, officers do not always read these rights to every suspect. If they have failed to formally advise the suspect of his or her Miranda rights and the suspect makes a statement while in custody, the statement can be excluded from the trial of the case. The statement can also be excluded from the trial if it is shown that the suspect did not understand his or her Miranda rights or if the suspect did not make the statement voluntarily.
Not having received a Miranda warning is not a defense for committing the crime. However, at trial the accused will certainly argue that the statements and confessions should be excluded from the evidence presented in the case. If no statement or confession is given by the defendant, then there is nothing to exclude. Therefore, no problem exists, even though Miranda rights may not have been read at the time the defendant was arrested or detained.
What happened in this famous case resulting in what everybody now knows as Miranda rights?
In the Miranda case, a man named Ernesto Miranda was arrested and charged with kidnapping and rape. Miranda was poor, uneducated, and somewhat mentally disturbed. He was taken to the police station and identified by the victim. He was then shut in an interrogation room with several police officers. He was intensively questioned for a number of hours.
Never did these police officers tell Miranda that he had the right to remain silent and not say anything that would lead toward the establishment of his guilt (in other words, that he had the right not to incriminate himself under the Fifth Amendment). Nor did they tell him he had the right to a lawyer (a right guaranteed by the Sixth Amendment). Finally, after several hours, the officers came out of the interrogation room with a written, signed confession by Miranda.
In the Miranda case, the U.S. Supreme Court justices made use of the exclusionary rule. The exclusionary rule says that illegally obtained evidence cannot be used to convict a person of a crime.
The Supreme Court applied the rule to confessions and statements made by defendants to ensure that police officers would follow the principles laid out in their decision. Also, the court wanted to ensure that persons accused of a crime were advised of their basic rights. In the past, police officers had often questioned suspects for hours or even days until confessions were obtained (and in rare instances, even used torture).
With their ruling in the Miranda case, the justices wanted to prevent such behavior by the police. The court also expanded the rights of the accused to protect them from giving involuntary statements because they did not know they could remain silent. The justices did not feel that a person should be convicted of a crime on the basis of a confession illegally obtained through physical abuse or ignorance.
The courts continue to interpret the Miranda decision, expanding the interpretation of it in some cases and narrowing it in others. For instance, in the 1980 case of Rhode Island v. Innis, the Supreme Court held that the term interrogation, as used in the Miranda case, was not limited to express questioning by the police. 446 U.S. 297 (1980).
The court said that interrogation also included any words or actions on the part of the police (other than those that normally accompany arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
The rights spelled out in the Miranda warning can be waived by a prisoner. However, the waiver must be given voluntarily. The prisoner must understand his or her action. There must be no trickery, promises of leniency, or threats by police officers. The figure below shows how police officers might present the waiver.
Miranda Warning Waiver
After the warning and in order to secure a waiver, the following questions should be asked and an affirmative reply secured to each question.
1. Do you understand each of these rights I have explained to you?
2. Having these rights in mind, do you wish to talk to us now?
How might the Miranda ruling apply in the case of the Central City Drug Bust? What if the following events had occurred?
SITUATION 2 The police tell Jim that if he confesses to selling cocaine at the high school, they'll see that he gets off easy.
SITUATION 3 Harry has told a friend about the drug warehouse. The friend tes-tifies to this fact in court.
SITUATION 4 A number of people are in the garage when the police arrive. As soon as the police enter, Daisy says loudly, "Well, I'm caught red-handed now."
In situation 2, the Miranda ruling would apply. Any confession obtained would not be ad-missible. Note that the Miranda ruling applies only to confessions made to the proper author-ities by a person in custody who is being questioned. Harry's confession in situation 3 was not made while he was in custody. It could be used in court. Daisy's statement in situation 4 could also be admitted as evidence. She was not in custody at the time, nor was she being questioned about her involvement in the crime.
* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004).The Vinson Institute is not responsible for errors in the online text.Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications.Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.
Last Reviewed On: 07/30/04
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Copyright and Use Notice
This material is copyrighted by the authoring organization or individual. Legal information can change rapidly. Provided links are kept updated, permission is given to link to this material from a nonprofit, court or government website. Website material may be printed, copied and distributed only in its original format for non-commercial, informational purposes. The material may not be altered from its original format. Reproducing the material to promote a commercial purpose is expressly prohibited. Commercial enterprises are expressly forbidden from linking to our material or using our material in other ways. Legal Aid and GLSP are not liable for the distribution of out-of-date material or links. To inquire about appropriate use of this material, please contact 404-524-5811.
Information Not Legal Advice
LegalAid-GA.org provides general information only. This is not legal advice and cannot replace legal advice. You can get legal advice only from a lawyer. Deadlines are extremely important in most legal matters. You may lose important legal rights if you do not hire an attorney immediately to advise you. Viewing this web site or sending an e-mail message through this web site does NOT create an attorney-client relationship.
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