What to do if you are arrested

Do not resist physically, even if you believe the arrest is unlawful. Resisting is itself a separate offence in every state, it can escalate into force being used, and it converts an argument you might win later into a charge you will certainly face. The place to challenge an unlawful arrest is a courtroom, not a pavement.

State your invocation clearly and simply. Something to the effect of: 'I am going to remain silent. I want a lawyer.' Say it out loud, say it once, and then follow through. Do not apologise for it, do not explain why, and do not soften it into a question.

Then actually stop talking. This is the part people fail. Courts have held that the right to silence must be invoked unambiguously, and that having invoked it, voluntarily starting to answer questions again can waive it. Silence maintained for a while and then broken is worse than useless, because everything said afterwards is available to the prosecution.

Do not consent to any search — of your person beyond a lawful pat-down, your bag, your car, your home or your phone. Say plainly: 'I do not consent to this search.' Officers may have independent legal authority to search anyway, and if so the search will happen regardless. What matters is that you did not hand them permission, because consent removes the ability to challenge it later.

Do not lie about anything, at all. Providing false information to law enforcement is a separate offence and, unlike silence, it is one you can be convicted of even when the original suspicion comes to nothing. Silence is protected; lying is not.

Answer basic identifying questions. You will generally be required to give your name, and in many states to identify yourself when lawfully stopped. This is not a waiver of anything else, and refusing to give your name can itself be an offence in some states.

Ask for a lawyer again at each new stage — at booking, before any interview, and at your first court appearance. Each request should be explicit. Assume that no request carries over automatically to the next officer or the next room.

Memorise one phone number. Phones are taken during booking, and almost nobody knows anyone's number by heart any more. One memorised number for a person who will reliably answer and act is worth more at that moment than any legal knowledge.

Miranda warnings are not a formality police must complete to make an arrest valid. They are required before custodial interrogation — that is, before questioning someone whose freedom of movement is significantly restrained. Police can lawfully arrest you and never read you your rights, provided they do not then question you.

The consequence of a failure to warn is generally that statements obtained through unwarned custodial questioning may be excluded from evidence. It does not mean the case is dismissed, and this is the most persistent myth in this whole area. An arrest is not invalidated by a missing warning.

The right to remain silent comes from the Fifth Amendment's protection against being compelled to be a witness against yourself, and the right to counsel from the Sixth Amendment. Both texts are short and worth reading once; they are published in full by the National Archives.

Volunteered statements are not protected by any of this. If you say something without being asked, in the car, at the counter, or to a cellmate, it was not the product of interrogation and the warning rules do not exclude it. Conversations in police vehicles and holding areas should be assumed to be recorded.

Police are permitted to use deception during interviews in most circumstances — telling you a co-defendant has implicated you, that evidence exists which does not, or that cooperating now will help you. This is lawful. It is also the single most effective technique for producing statements from people who intended to say nothing.

On searches, consent is the mechanism by which most searches that would otherwise be challengeable become lawful. Refusing consent does not create probable cause and cannot itself be used as evidence of guilt. If officers proceed anyway, do not obstruct — state your refusal once, clearly, and let a lawyer argue about it later.

Phones deserve specific mention. The contents of a mobile phone generally require a warrant, and this is one of the highest-value refusals available. Do not unlock a device or provide a passcode without legal advice, and be aware that the legal position on compelled biometric unlocking differs from compelled passcodes and is still being litigated.

You may record police in public in most circumstances, provided you do not interfere. State wiretap and consent-to-record laws differ, and rules for recording inside a police facility differ again, so this is one to check for your own state rather than assume.

Booking is the administrative processing that follows arrest: identification, fingerprints, photographs, an inventory of your property and a records check. It is not an interview, though conversation during it is not privileged, and people frequently talk during booking having successfully stayed silent until then.

You will normally be permitted to make phone calls. Assume every call except one to your lawyer is recorded and will be listened to. Do not discuss the facts of the case with family members on a jail phone; use the call to arrange a lawyer, care for dependants and pets, and notify an employer.

The first court appearance is variously called the initial hearing, arraignment or first appearance, and must happen promptly — the standard is generally without unnecessary delay, commonly within a small number of days. At it, the charges are read, you are told your rights, counsel is appointed if you qualify, you enter a plea, and the question of release is decided.

Ask for appointed counsel at this hearing if you cannot afford a lawyer, and complete the financial affidavit honestly. This is the moment the right to counsel becomes practical rather than theoretical, and it is not the moment to be proud about it.

Release conditions vary enormously. Depending on the jurisdiction and the charge, you may be released on your own recognisance with a promise to appear, released with conditions such as supervision or an electronic monitor, required to post a money bond, or held. Federal practice and state practice differ substantially, and several states have restructured or largely eliminated cash bail.

If money bail is set, understand what a commercial bail bond costs. A bondsman typically charges a non-refundable percentage of the bond amount and may require collateral. That fee is not returned if the case is dismissed or you are acquitted, which surprises people who assume bail is refundable.

Take every condition of release seriously and diarise every court date. Failure to appear generates a warrant, is usually a separate offence, and destroys the credibility that release decisions later depend on. If you cannot attend for a genuine reason, contact your lawyer and the court before the date rather than after.

Charging is a separate decision made by a prosecutor, who may file charges different from those the police arrested for, may file none, or may take the matter to a grand jury depending on the jurisdiction and severity. Being released without charge does not always mean the matter is closed, and charges can sometimes be filed later within the limitation period.

For anyone who is not a US citizen — including lawful permanent residents with green cards — a criminal matter carries a second set of consequences that run in parallel to the criminal case and are not decided by the criminal court.

Certain convictions, and in some categories certain admissions of conduct, can make a non-citizen removable or inadmissible, can bar naturalisation, and can prevent re-entry after travel. The categories are technical and do not track intuitions about seriousness — some offences that carry no jail time have severe immigration consequences, while some that sound worse do not.

This is why a plea that looks like an excellent outcome in the criminal case can be a disaster overall. A negotiated disposition that avoids jail but produces a conviction in a triggering category can end a lawful residence that took decades to build.

Tell your defence lawyer immediately that you are not a citizen, and ask directly whether they have consulted an immigration specialist about the disposition. Do not assume a criminal defence lawyer has analysed the immigration consequences unless they say so, and do not accept a plea before that analysis exists.

You have the right to remain silent about your immigration status. You are not required to answer questions about where you were born or how you entered the country, and you should not carry or present false documents under any circumstances.

If immigration authorities become involved, the proceedings are civil rather than criminal, which has a critical consequence: there is no right to appointed counsel in immigration court. People are regularly required to represent themselves in proceedings that determine whether they can remain in the country.

Ask any officer whether you are free to leave. If you are, leave calmly. If you are detained, invoke silence and request a lawyer, and ask to contact your country's consulate — foreign nationals are generally entitled to consular notification, and consulates can help locate a lawyer and inform family.

Keep copies of immigration documents somewhere a trusted person can reach them, and make sure someone knows your alien registration number if you have one. Locating a detained person is far harder without it.

Most criminal cases in the United States end in a negotiated plea rather than a trial. This is a structural feature, not an anomaly, and it means the skill that matters most in an ordinary case is negotiation and evaluation rather than courtroom performance. It also means the pressure to accept an early offer is real and should be resisted until the evidence has actually been reviewed.

An arrest generates a record even where no charge follows and no conviction results. That record can appear on background checks used for employment, housing and professional licensing, and it does not delete itself when the case is dropped.

Most states provide a route to seal or expunge records in defined circumstances — commonly for arrests without conviction, dismissed cases, acquittals, and after a waiting period for certain convictions. The terminology and effect vary: sealing typically restricts access, while expungement more nearly erases. Several states have introduced automatic clearance for some categories.

The process is usually a petition to the court that handled the case, sometimes with a fee that can be waived, and legal aid organisations and law school clinics run expungement clinics precisely because the paperwork is well within reach with a little help. This is one of the highest-value free legal services available and one of the least used.

Collateral consequences extend well beyond the sentence and are often the more lasting penalty: professional licences, firearm rights, eligibility for public housing, some student aid, immigration status, driving privileges, and the ability to serve as a foster or adoptive parent can all be affected by categories of conviction.

If you believe your civil rights were violated during the arrest — excessive force, discriminatory treatment, denial of medical care in custody — that is a separate matter from your criminal case, and it does not affect the criminal outcome. Complaints can be made to the Civil Rights Division of the Department of Justice and to the agency's internal affairs unit, and there may be a private claim.

Write down everything you remember as soon as you can: times, names, badge numbers, what was said, who was present, what was searched, whether warnings were given. Memory degrades fast and your account written on day one is worth considerably more than the same account reconstructed at trial.

Finally, if someone you know has been arrested and you cannot find them, federal inmates can be located through the Bureau of Prisons inmate locator, while people held on state or local charges are found through the relevant county sheriff or state corrections department. Being unable to find someone in the first hours is common and is usually a records lag rather than anything sinister.