Does the arresting officer have to tell you "on what charge"?

[Pret-a-Poster]

This is in nearly every dramatic TV arrest: “You are under arrest” “On what charge?” “Murder”

Do they have to tell you, or can they just read you your rights and start putting you in their police car?

And would it matter if they got it wrong?
Say a guy in a mask with a sack is cornered by a man’s dog in the back yard. The man calls the police. The charge may be burglary, attempted burglary, trespass, malicious mischief, attempted dognapping…

[Si_Amigo]

From commen knowledge takin from TV cop shows.

Before they can “book you” into jail they have to charge you with something. They can hold you for a reasonable amount of time on suspicion of a crime while they investigate. The length of reasonable being eventually decided by a judge. It does not have to be right at the scene of the purported crime. Sometimes they arrest unconscious people and handcuff them to a hospital gurney and charge them when they wake up. YMMV. IANAL.

[Mr.Slant]

Based on previous threads here with posts by lawyers and cops:
It is customary, but no mandatory, for a suspect to hear his charges upon or shortly after arrest.
Legally, you need not be told 'til arraignment.
The above is for persons accused of crimes in the US. It does not discuss unlawful combatants, which would be a topic for another.

[Otto]

@Si Amigo

They can hold you for a reasonable amount of time on suspicion of a crime while they investigate.

IIRC one can be held for up to 48 hours without charge but I couldn’t name the SCOTUS case that established this as the standard.

[askeptic]

In California a defendant is not required to be informed of the nature of the charges (Pen Code 988; In Re Mitchell (1961) 56 C2D 667) until his arraignment which must occur for an in-custody defendant no more than 2 calendar days after arrest (excluding sundays and holidays) (Cal. Const art I; Pen Code 825 and 849). Often a person can bail out earlier on a charge but that does not mean that the DA cannot change the charge when actually iling. The police do not charge crimes. They arrest you on suspicion of a crime. The DA actually files charges which may or may not be the same as the charges an individual was arrested for. For example a person may be arrested for theft but the DA may review it and decide that Burglary is a more appropriate charge. You may have bailed out on the lesser theft bail but you could be re-arrested when you show up to the arraignment and the DA has filedthe more serious burglary charge.

[anson2995]

@Otto

IIRC one can be held for up to 48 hours without charge but I couldn’t name the SCOTUS case that established this as the standard.

The sixth amendment requires that defendants be given notice of the crimes which they are accused, but there’s no federal case law that I’m aware of that specifies how quickly that notice must be given. That’s left up to the states. In Barker v Wingo , SCOTUS provided some parameters to the amendment’s vague requirement for a speedy trial. I don’t believe the 48 hour rule is universal from state to state.

In general, the purposes of the sixth amendment’s provision that defendants be notified of the charges against them are to a) help them prepare for trial and b) to prohibit them from being convicted of a crime for which they weren’t charged. SCOTUS has weighed in on these issues repeatedly, most notably Potter v US and U.S. v Carll

[Otto]

@anson2995

The sixth amendment requires that defendants be given notice of the crimes which they are accused, but there’s no federal case law that I’m aware of that specifies how quickly that notice must be given. That’s left up to the states. In Barker v Wingo , SCOTUS provided some parameters to the amendment’s vague requirement for a speedy trial. I don’t believe the 48 hour rule is universal from state to state.

Found it, I think. If I’m reading this right, GERSTEIN v. PUGH, 420 U.S. 103 (1975) established that the Fourth Amendment requires that detainees are entitled to a “prompt” judicial finding of probable cause and COUNTY OF RIVERSIDE v. McLAUGHLIN, 500 U.S. 44 (1991) put forth the 48 hour rule under some circumstances:

In order to satisfy Gerstein’s promptness requirement, a jurisdiction that chooses to combine probable cause determinations with other pretrial proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Providing a probable cause determination within that time frame will, as a general matter, immunize such a jurisdiction from systemic challenges. Although a hearing within 48 hours may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably, courts evaluating the reasonableness of a delay must allow a substantial degree of flexibility, taking into account the practical realities of pretrial procedures. Where an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends or the fact that, in a particular case, it may take longer to consolidate pretrial proceedings.

So, um, yeah, that clears things right up.

[Gfactor]

While 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.

---

Even absent a requirement that an individual be informed of the reason for arrest when he is taken into custody, he will not be left to wonder for long. “[P]ersons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” County of Riverside v. McLaughlin, 500 U. S. 44, 53 (1991)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-710

[Richard_Parker]

What if you’re being held as a material witness like Jose Padilla?

[Otto]

So, putting all of these pieces together:

Cop arrests suspect but has no constitutional obligation to advise him of the reason. The arrestee is entitled in the absence of extraordinary circumstances to a probable cause hearing within 48 hours of the arrest. Presumably, then, the longest that someone could go under normal circumstances without knowing the charges is 48 hours, yes?

[askeptic]

@Otto

So, putting all of these pieces together:

Cop arrests suspect but has no constitutional obligation to advise him of the reason. The arrestee is entitled in the absence of extraordinary circumstances to a probable cause hearing within 48 hours of the arrest. Presumably, then, the longest that someone could go under normal circumstances without knowing the charges is 48 hours, yes?

Excluding Sunday’s and Holiday’s.
ETA: In California the probable cause determination may be made prior to the Arraignment and there is no requirement that the defendant be present.

[Walloon]

Sundays and holidays.

[Quercus]

@Otto

The arrestee is entitled in the absence of extraordinary circumstances to a probable cause hearing within 48 hours of the arrest.

@askeptic

Excluding Sunday’s and Holiday’s.

But (emphasis mine in following quote)

@Someone Otto quoted

the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends

So do Sundays count?

[askeptic]

@Walloon

Sundays and holidays.

Got it. Thanks. Feel better?

[SiXSwordS]

And it is not unusual for an arrest to be made on small or incidental charges (e.g. parking tickets, OWI, orrefusing to identify oneself) when more serious or substantial charges are being investigated.

[askeptic]

@Quercus

But (emphasis mine in following quote)
So do Sundays count?

Depends on whether the arrest was made with a warrant or without one. ( in California)

Also remember that probable cause determination is not the same as an arraignment and the defendant need not be informed of the outcome nor even be present untill the arraignment.

[Gfactor]

From the case, instead of the syllabus:

Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.

This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay’s sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.

Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that, in a particular case, it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends.

(Emphasis added). County of Riverside v. McLaughlin, 500 U. S. 44, 53 (1991)

And see, http://www.acgov.org/da/pov/documents/postarrestsummer2003.pdf (Note that in calculating the time limit, no allowance is made for weekends or holidays. It’s a straight 48 hours)

[askeptic]

@Gfactor

(Emphasis added).
And see, http://www.acgov.org/da/pov/documents/postarrestsummer2003.pdf (Note that in calculating the time limit, no allowance is made for weekends or holidays. It’s a straight 48 hours)

@California Penal Code

825. (a) (1) Except as provided in paragraph (2), the defendant
     shall in all cases be taken before the magistrate without unnecessary
     delay, and, in any event, within 48 hours after his or her arrest,
     excluding Sundays and holidays.

We need to distinguish between a probable cause determination which must be made within 48hrs period and arraignment which is often the fist time the defendant is informed of the charges.

[anson2995]

@Richard Parker

What if you’re being held as a material witness like Jose Padilla?

If you are being held without charges, you can file a habeas corpus petition, asking that the government be required to identify what crime you’re charged with. That’s what Padilla did, and before the court could rule on that matter, he was declared an enemy combatant, making his case moot (although some would disagree).

The case has been heard in several venues including the Supreme Court (which kicked it back down the chain), at which point the 4th circuit ruled that the President had the constitutional authority to order Padilla held without charges. The Supreme Court denied Padilla’s appeal of this ruling. Shortly after that, he was indicted in federal court on a variety of charges, and he was found guilty on all of those charges last month.

[Gfactor]

@askeptic

Depends on whether the arrest was made with a warrant or without one. ( in California)

Right. *Gerstein * and McLaughlin dealt with consolidated pre-trial proceedings following warrantless arrests.