Rights Upon Arrest

An Egyptian-American activist/columnist/media personality named Mona Eltahawy was recently arrested in New York while defacing a pro-Israel subway advertisement. The entire incident was captured on video and can be seen here.

Over at the Volokh Conspiracy, Professor Orin Kerr focuses on Ms. Eltahawy’s demand that the arresting officer tell her what she was being arrested for. (As far as I can tell from the video, the officer didn’t respond to the demand.) As Professor Kerr puts it: “On TV, the officer announces the arrest, announces the crime of arrest, and then reads the suspect Miranda rights. But these are not actually constitutionally required.” In Devenpeck v. Alford, 543 U.S. 146 (2004), the Court stated that “[w]hile it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.” And an arrestee must be informed of his or her Miranda rights only if the police want to undertake custodial interrogation, which, in many cases, is not on the officers’ immediate post-arrest agenda.

It’s a good discussion that clears up some common misapprehensions about the law. But I should add that in North Carolina, G.S. 15A-401(c)(1)c states that an arresting officer must, “[a]s promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest, unless the cause appears to be evident.” The provision hasn’t been cited or discussed much, but at least one case suggests that an officer normally should answer a direct question about the basis of the arrest. In State v. Ladd, 308 N.C. 272 (1983), an officer arrested the defendant and the defendant asked, “What for?” The officer responded, “You know why.” The court stated that “the officer’s indirect response to defendant’s query as to why he was being arrested was in violation of G.S. 15A–401(c)(2)c” and that the officer “should have directly and truthfully answered defendant’s question at the time it was asked.” See generally State v. Kinch, 314 N.C. 99 (1985) (“Last, defendant [argues] that he was not read his ‘rights’ when he was arrested. It is not necessary to read a defendant the Miranda rights in order to make a lawful arrest. Defendant was advised by the arresting officers that he was being arrested on a charge of rape in compliance with N.C.G.S. 15A-401(c)(2)[c].”).

Officers, what’s your practice regarding when you notify an arrestee of the basis of the arrest? What do you think of the conduct depicted in the video? (The officer’s conduct, I mean. Ms. Eltahawy’s conduct really speaks for itself.)

7 thoughts on “Rights Upon Arrest”

  1. Suppose an officer violates 15A-401(c)(1)c by not disclosing the basis for the arrest, what is the remedy? Suppression of evidence resulting from the arrest? Dismissal of the charges? Neither of those really puts a defendant in the position he would have occupied if he had gotten the information right away.

    A right to be informed is not really a right if nothing happens when the right is violated.

  2. I think it is best practice to go ahead and notify the arrestee of the reason for arrest especially if they ask. I think most of the time it is quite obvious why the arrest is being made and thus it is pointless for the officer to announce the specific General Statute while placing the person in handcuffs. The law does not require it when the cause appears to be evident. I would think the majority of warrantless arrests conducted in this state are for reasons that are quite evident to the arrestee. It is my experience that arrestees repeatedly ask over and over again the reason for arrest even if you provide a reasonable valid answer. It is most common for arrestees to demand the reading of their Miranda Rights even though no custodial interrogation has occurred beyond routine booking questions. Although the law requires officers to promptly notify the reason for arrest unless the reason is evident, I certainly can’t imagine a court suppressing evidence as a result of failing to comply with this requirement. GS 15A-974 requires suppression only when the court rules that it is obtained as a result of a substantial violation of the provisions in Chapter 15A. In determining whether a violation is substantial, the court must consider all the circumstances, including:
    a. The importance of the particular interest violated;
    b. The extent of the deviation from lawful conduct;
    c. The extent to which the violation was willful;
    d. The extent to which exclusion will tend to deter future violations of this Chapter.

    The conduct depicted in the video is a representation of the growing trend in America for citizens to create conflict that they know is unlawful in order to entice the police into a filmed encounter in hopes of catching police misconduct. Many people have a distorted and gross misunderstanding of their rights which often leads to unnecessary conflict with the police. It is a privilege to live in a free country, but some people choose to partake in actions that are detrimental to others because they believe no government authority can restrict them.

  3. I think the law is unneccesary for the most part when the arrest is an on-view. To begin with, the person is going to be taken in front of a magistrate or judge without undue delay, where they will get a copy of their charges. Generally during the time between the arrest and their appearance, they will find out their charges, or at least some of them.

    However, our detectives do not like us to tell a person who we arrest on a warrant CID has obtained what their charges are until CID is able to interview them. This I do not agree with. When you arrest someone on a warrant it is pretty clear to me that the person has the right to know their charge as soon as it is safe to tell them.

    A guy I work with had it out with CID once because he told someone he arrested on a warrant what the charges were. He was so irritated he wrote Robert Farb a letter asking his opinion. Farb replied and said it was clearly required to notify the arrestee of the charge.

    But no matter what you do, if you have probable cause for the arrest and bring the arrestee before a magistrate or judge and present the probable cause and the arrest is upheld, the arrest is valid. There is no recourse in the law for a failure to notify, so in effect the law has no power. Is that not correct?

    • “There is no recourse in the law for a failure to notify, so in effect the law has no power.”

      I think that is pretty much correct. How many people would obey the speed limits if the penalty for exceeding them was nothing?

  4. Also note that 15A-501, “Police Processing and Duties Upon Arrest,” enumerates six different things LEO’s are to do upon arrest. And although it lists first, inform the arrestee of the reason for arrest, it specifically states at the outset that the six things are to be done “not necessarily in the order hereinafter listed.”

  5. Son was arrested, he as the officer what he was being arrested for, the officer didn’t tell him untul he ask. They don’t read you your miranda rights… why..


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