Arrest: Definition and What to Do When Arrested

Iowa Arrest

What is an arrest in Iowa and what should you do when you've been arrested?

You probably think you know what an "arrest" is, but determining exactly when someone was arrested is often argued about in criminal proceedings.  There isn't a bright-line test to determine whether someone has been arrested.  There's no one thing you can look at that tells you, you know, yep, that guy's arrested!

Depending on when you're arrested and what you're told, searches the police perform and admissions you make may end up being inadmissible.  Inadmissible evidence can't be used against you at trial.  When important evidence gets "suppressed,"  your chances of getting your case dismissed improve.

Arguing details about an arrest is something for later, though.  If you've just gotten a call from your friend, husband, wife, boyfriend, girlfriend, partner, or child who's in custody, you need to know what to do now.

Steps to follow:

1. Tell them not to discuss their charges on the phone. 

Calls from the jail are recorded.  Anything they tell you could later be used against them.  It's normal to want to know what happened, but it's important for them that they not talk about it.

2. Tell your friend or loved one that you'll call an attorney for them if that's what they ask you to do. 

Ask if there's anyone in particular that they'd like you to call.

3. Tell them not to talk about their charges with anyone other than an attorney.

Not with you, not with the other people at the jail, and definitely not with the police.

4. Let them know that they can call you back in a while. 

Be prepared, when they call you back, to tell them what you've found out about an attorney and about bail.  You may not be able to call your friend or loved one at the jail and will have to wait on their call.  After their initial free phone call to you, their calls may be collect.  Accepting their next call may require you to pay several dollars with a credit or debit card.

5. Call an attorney.  

If they asked to talk to a specific person or firm, call that person or firm and let them know what's going on.

6. Stay calm.

7. Call.

Call the arresting agency or the place where your friend or loved one is being held and ask what the conditions of their release will be.  This information won't be available right away.

8. Ask how much the bond is and what their policies for payment are.

In some circumstances, the court will require that bail or bond is paid before your loved one can get out of jail.   For some charges, you can contract with a bail bondsman if you can't afford the full amount of bail.  For still other charges, your friend will need to see a judge before they're eligible for bail, or they may not be eligible for bail at all.

9. Decide whether you're going to pay bail.

If your loved one wants bailed out and if you want to bail them out, your payment will have to conform to the jail's policies.

Depending on the jail's rules and on the terms the judge set, this could involve paying in person in cash or with a cashier's check or through a bail bondsman.  If you need to pay bail in person, this is the part where you get to put on your sweatpants and traipse out to the jail to pay and then to wait...and wait...and wait the hour or three it might take the jail to return your arrested loved one to you.

What is arrest?

Hundreds of people are arrested by law enforcement agencies and charged with a crime in Iowa every day.  After arrest, a defendant might be released on their own recognizance, released with pretrial services, held in custody until they can pay a cash or surety bond, or some cases, such as probation violation cases, held without bail.  A criminal investigation starts or continues, and a defendant is presumed innocent until proven guilty beyond a reasonable doubt.

It’s often clear when an arrest happens.  When an officer sees someone and immediately executes an arrest warrant, an arrest may have happened as soon as the person was aware that the peace officer intended to detain them.

Other times, an officer may approach someone and have a conversation with them.  It may become apparent that the police department suspects the person of a crime.  The officer might detain the person while they ascertain whether they have probable cause to make an arrest.  At some point, an officer might say “I’m putting you under arrest” or might simply handcuff a person and put them in the car. 

Iowa arrest records show that someone has been arrested.  The police narrative in a criminal complaint may mention when the officer subjectively thinks that someone has been arrested.  Neither of these things are dispositive.

There is a lot of case law discussing exactly when someone is under arrest.  The timing matters.  Unwarned custodial statements can’t be used against a defendant in criminal proceedings.  That’s why you might see people being read their Miranda rights on TV. 

Unwarned statements made before arrest can still be admissible.  If a defendant admits to a crime before being under arrest, that admission can be used as evidence against him.  If he confesses to a crime after being arrested, that confession can be used as evidence against him – but only if he was aware of his rights.  That middle window, where someone might make statements after arrest but before becoming aware of their rights, can cause evidentiary problems.

You are considered to be under arrest when a reasonable person would not feel free to leave.  This seems fairly straightforward.  After all, most people probably wouldn’t feel free to leave if a police officer approached them and started a conversation.  Courts have held that that isn’t enough, though. 

Your attorney can review the case law on arrests.  If necessary, she or he can make an argument to the court about whether you were under arrest at the time you made certain statements.

polk county iowa criminal defense lawyers katie sears and john sears defense attorneys
What will happen if I’m charged?

When someone alleges that you have committed a crime, law enforcement will start an investigation. 

The county sheriff’s department will take you into custody if they are aware that you have active warrants.  The sheriff’s department does not have the latitude to decide whether or not to release you.  Arrest records are available online in most Iowa jurisdictions, which will help your friends and family find out where you are if you are suddenly arrested.

Depending on whether they believe there is probable cause to charge you with Iowa crimes, you could be taken to jail or given documents that say when your court date is.  After your arrest, you will be read your rights and given an opportunity to call a lawyer or a law firm.

You will be taken in front of the judge for an initial appearance.  The judge will schedule a preliminary hearing. At the preliminary hearing, you or your lawyer will have the opportunity to ask a witness questions to establish whether probable cause exists to charge you with the offense.  At this hearing, the witness will be under oath. There are reasons that your attorney might suggest waiving the preliminary hearing. You should consult with them before making a decision.

You may be confined in a correctional facility before trial if you are unable to make bail or if the court doesn't set bail. There are various factors the court may consider when deciding whether to set bail, such as the nature of your offense and any public safety concerns.

Depending on the nature of the allegations, there may be a protective order in place.  If someone has a protective order against you and tries to contact you, you should contact the sheriff’s office right away.  A law enforcement officer will take a police report.  Police officers can’t provide legal advice, but they can take you – or the protected party, if they persist in violating a no contact order – to the county jail.

Your defense attorney will let you know when you will next have to appear in front of the court.  This may be for an arraignment or you may be able to submit a written arraignment.

The county attorney’s office will review the information provided to them by the police.  They will determine what offenses to charge you with. You could be charged with a misdemeanor or with a felony.

Your attorney will let you know what the government is claiming you did, what your rights are, what the worst case scenario sentence could be, and how this could affect your criminal record. Your criminal lawyer will tell you more about the fines, terms of incarceration, and collateral consequences that might apply. Your law firm will give you legal advice on the pros and cons of taking your case to trial.  The decision of whether or not to go to trial is ultimately yours.

If you choose to go to trial, your case will be tried in district court.  The officer or officers who arrested you and investigated your case will be likely State witnesses.

If you are convicted or enter a guilty plea, you will be sentenced.  After conviction, you could be directed to pay a fine, complete probation, or to detention in jail or prison.

If you are fined, the clerk’s office may be able to help you set up a payment plan.

After conviction, you might have reason and opportunity to appeal your conviction or sentence to the court of appeals or even to the Iowa Supreme Court. The Supreme Court might even say that there was a constitutional problem with the statute you were charged under.  Ask your criminal defense attorney for more information.

What should I know about lawyers generally?

Attorneys are people who completed their bachelor’s or 4-year degrees and then went on to attend a law school, such as Drake University Law School in Des Moines.  After completing law school, Iowa lawyers take the bar exam and are evaluated for character and fitness. Iowa lawyers are admitted to the Iowa state bar. The bar association regulates the legal profession.

Some lawyers and law firms do general practice, which means they accept all kind of representation.  Some lawyers specialize in particular areas of law. A lawyer might do only civil practice or only criminal defense.  Some lawyers get even more particular than that, practicing only (or primarily) in a narrow area, such as domestic violence, sex crime, sexual abuseoperating while intoxicated, child endangerment, child abuse, indecent exposure, theft, family law, child custody, personal injurypossession of controlled substances, sex crimes, marijuanaDUI defense, arson, criminal mischief, vehicular homicide, drug offenses, traffic violationsviolent crime or drunk driving. 

Many Iowa lawyers practice only in Iowa courts. All Iowa crimes are defined in the Iowa Code.  The Iowa rules of criminal procedure control what happens in Iowa criminal justice cases.

Federal court is different. If you are facing federal charges for a federal criminal offense, make sure to let your Iowa lawyer know that so that they can give you referrals to other attorneys, if necessary. Federal courts in Iowa are not the same things as state law courts in Iowa. Federal prosecutors and federal judges use different procedural rules. Federal crimes are subject to federal sentencing.

What offenses exist in Iowa criminal law?

Criminal law offenses are divided into misdemeanors and felonies. Class A felonies exist, but most people facing felony charges are facing a class B felony, a class C felony, or a class D felony. If you have questions about Iowa arson laws, you should talk to a lawyer.

What can an Iowa lawyer do for me?

If you’ve been accused of a crime, you need to be in contact with an Iowa lawyer or a law firm that works with Iowa criminal law.

If there’s a warrant out for your arrest, your Iowa criminal defense attorney can help coordinate with law enforcement to coordinate a self-surrender that doesn’t result in potential embarrassment at work or while you’re home with your family.

Your Iowa attorney will stay in touch with the county attorney’s office and let the prosecutor know whether you choose to exercise or waive your right to speedy trial.  Further, counsel can provide some guidance on whether it’s advisable in your position to consider a plea agreement or to go to trial. They will talk to you about whether a judge or jury is likely to find a particular witness credible.

Your criminal lawyer will let you know what sort of jail time you might be facing if convicted, how this will impact your criminal history, and how likely it is that you could get your charges dismissed.

Victim Resources

 Finally, there is a Victim Services Support Program available through the Iowa attorney general’s office.

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