A person is “under arrest” when they are taken into custody by law enforcement authority and not permitted to leave. Many different circumstances amount to an arrest. Some examples include being handcuffed, being placed into the back of a locked police car, or being booked at the police station. In short, any situation in which a reasonable person would believe they are not free to leave meets the legal definition of being “under arrest” (also referred to as being “in custody”).

Perhaps the most well-known right in any arrest situation is the “right to remain silent.” This legal right stems from the Fifth Amendment right against self-incrimination. You may have heard of something called “Miranda rights” or a “Miranda warning”; all these terms deal with the same concept. (The word “Miranda” refers to the Supreme Court case Miranda v. Arizona, which confirmed the right of an individual to remain silent.) Keep in mind, however, that there are some types of information you must give to the police: If arrested, you must give your real name, age, birthdate, and address. Additionally, the police are allowed to ask whether you are armed if this information appears reasonably necessary to protect themselves or others under the circumstances.

Yet beyond this basic information, the police cannot force you to divulge anything. You are not responsible for proving your case to the police. You do not have to defend your actions. Silence cannot be taken as evidence of guilt. Before the police can begin asking you questions about the crime you are accused of committing, they must inform you of your right to remain silent and the consequences of choosing to speak (“anything you say may be used against you in a court of law”). These instructions are what is known as the Miranda warning, and it is your cue to clam up and demand the presence of an attorney. Even if you initially choose to proceed without an attorney, you are allowed to change your mind at any point, in which case all questioning must cease until counsel arrives. No matter what, the police are not permitted to threaten, punish, or otherwise coerce you for refusing to talk.

Your right to an attorney is guaranteed by the Sixth Amendment. You are allowed to hire any attorney you want, provided s/he is authorized, available, and willing to represent you. If you cannot afford a Will County attorney, a Public Defender will be assigned to your case to represent you free of charge. Note, however, that you usually will not receive a Public Defender until your bond hearing. But this does not mean you have to talk to the police in the interim; you can still refuse to undergo any questioning until an attorney is present to protect your rights.

After being arrested, you have a right to be “booked” within a reasonable time frame (usually within 48 hours). The police cannot hold you indefinitely; they must either charge you or let you go. Illinois uses a “totality of the circumstances” test to determine whether your time in custody was reasonable. This means if there is any question regarding the reasonableness of the length of time you were held, a wide variety of factors are taken into account (e.g., the conditions you were being held in, how many times your Miranda rights were read to you, etc.). If you are held for an unreasonable length of time, any confession you make may be deemed inadmissible and thrown out of court. (Note that the law on permissible length of time in custody is different for juveniles and varies depending on the accused’s age and the nature of the alleged offense.)

Another well-known right upon arrest is the right to a phone call. An arrestee is allowed to make a “reasonable number” of phone calls (varies by jurisdiction) in order to contact an attorney and/or a family member. If you are transferred to a new place of custody, this right is renewed.

You also have a right to an itemized list of all money and property taken from you after being arrested. You may need to ask for this list, but if you do the police are required to give it you.

After you’ve been arrested and charged, you have a right to a bond hearing (at least in felony cases). It is your right to have an attorney present at this hearing. Here the court determines how much bail must be posted in order for you to be released from jail while your case is pending. If you are only charged with a misdemeanor (which is less serious than a felony), bond is generally posted at the police station and a hearing does not take place. If you are trusted to return for trial “on your own recognizance,” you may be released without putting down any money. On the other hand, in severe situations the judge might determine that a person is too dangerous or too much of a “flight risk” to be permitted to leave police custody on bail while awaiting trial.

If you have been arrested in Joliet or Will County, be sure your rights are respected and not violated. The best way to do this is to immediately call a defense attorney who is familiar with the criminal court system and law enforcement of Will County. Having an attorney by your side as early in your case as possible will ensure the best possible outcome of your situation, whether it be a simple misunderstanding or a serious offense.

To contact an affordable Will County Attorney to discuss your situation, please contact 815-729-9220.

Written by: Sarah Hanneken