An arrest in Virginia can be defined as the physical taking or seizing of a person by a police officer. It is an act that indicates the intention to take that person into custody. This means you are under arrest when the police make it clear that you are in custody, but that can be a very fact-specific legal determination, and you should consult a seasoned criminal lawyer in Leesburg if you think there is an issue with your arrest.
A person is under arrest when their ability and authority to move freely from that situation is taken away from them by the arresting police officer and their freedom of movement must be curtailed and then eliminated for them to be considered under arrest. It is not enough for them to simply be told that they are under arrest. There must be an accompanying act that shows the officer is attempting to seize their physical person. It is also possible to be in custody for constitutional purposes without being told you are under arrest.
The use of handcuffs is more of an indication of an arrest than a requirement of an arrest. The moment of arrest does not usually technically occur at the time the handcuffs are placed on the person. Rather, the moment of arrest occurs at the time that the person’s body is literally taken under control by the police officer. A person is taken into custody and taken to jail, and Virginia arrests include any act associated with that. It is usually accompanied by words on the part of the arresting officer that indicate that a person is under arrest, at which point the individual should consult with a Virginia criminal lawyer the first chance they get.
The police typically require a warrant or probable cause for an arrest, but you should almost never take any kind of physical action to prevent the police from doing what they are going to do. If you were to try to resist arrest, you will be arrested anyway, and charged with resisting arrest or obstruction of justice. It is always best to give your attorney the best set of facts to work with, which includes being polite and cooperative even while staying silent and refusing to answer questions–even when you think you are being arrested illegally.
There are many different types of detentions made by the police that do not technically constitute a criminal arrest.
The most common example is a traffic stop where a person is detained by the police. There is no question about the fact that a person is detained. For at least that moment in time, that person is not free to leave because the police have exerted an authoritative move like activating emergency equipment or stepping out of traffic to detain them. But a person is not under arrest at that time. Instead, it is an investigatory detention. When someone tries to leave a detention without permission, they will likely be arrested.
There are other circumstances where the police can detain a person for a brief period of time. A brief interruption of a person’s liberty is permitted for the purposes of investigating certain criminal activities. The mere detention by a police officer does not, in and of itself, constitute an arrest.
It is typically best to identify yourself to police, but you do not have to answer any questions. If you are detained, you can ask if you are free to leave and if you are under arrest. You can also ask why you are being detained, but you should not expect to get an answer you like, and you should not repeat your question or continue questioning police if you do not like the answer. You should exercise your right to remain silent, and let your attorney sort it out in court.
In a Virginia arrest, the police do not always need an arrest warrant. The police are authorized to make warrantless arrests under a few limited circumstances that can arise through the normal course of their investigation or their daily beat.
Officers may arrest without a warrant when a person commits a crime in the presence of that officer. An officer can arrest any person when there are reasonable grounds for probable cause to suspect the person of having committed a felony not in the officer’s presence. If a person commits a misdemeanor in the presence of the officer, they can arrest that person without a warrant.
The most common example would be a DUI or DWI stop in Virginia.
Northern Virginia Criminal Defense Group
