Can police arrest me without evidence of my guilt?

Law enforcement can only arrest you if they have probable cause to believe you’ve committed a crime. Once the police have established probable cause, they can proceed as follows:

• They can make an arrest. Once you are in police custody, your initial arraignment generally must occur within 48 hours. The initial arraignment is your first appearance in court whether or not you’re in custody. It is the occasion when your lawyer will be given the complaint (legal document) stating what you have been charged with and initial police reports on your case. If you’re in custody at your arraignment, your lawyer also has the opportunity to argue bail or pretrial release.
• If the police do not think you are a flight risk, or they arrest you on misdemeanor charges, they might send you on your way with a ticket (“cite release”) and send your case to the District Attorney’s office for filing at a later date. The DA will then mail you a letter telling you to appear for an arraignment and listing the charges they decided to file. If you do not get a letter, you should always appear (or have a lawyer appear for you) on the date indicated on your citation.
• They can ask a judge to sign a warrant for your arrest. This requires that the police demonstrate their probable cause in a declaration to the judge (“probable cause declaration”).

If you are questioned, detained, or arrested, you have the right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else) – and most lawyers will recommend that you don’t talk!

A detention occurs when police encounter you and you do not feel free to leave or terminate the encounter. Miranda warnings give you the right to stop a police interrogation once arrested – and once Miranda is asserted, the police have to stop questioning you. You cannot be legally punished by the police for refusing to answer questions. Even if you haven’t been arrested, it is a good rule of thumb to simply not speak with law enforcement without talking to a lawyer first! Police officers are trained to get confessions – so if they don’t yet have probable cause to arrest you, speaking with them might give them what they need for an arrest.

That being said, it is always a good idea to talk to a lawyer before agreeing to answer questions by the police. If you have questions about this process, please reach out to us.