The Register-Herald, Beckley, West Virginia

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April 27, 2014

Court Conversations: Learning the intricacies of an arrest procedure

Part 1 of the Court Conversations Series

The legal process oftentimes can seem daunting with its jargon and the procedures of magistrate, circuit and supreme court systems, but a well-tenured judge is going to break down everything from arrest to appeal in the upcoming weeks in The Register-Herald.

Raleigh County Circuit Court Judge H.L. Kirkpatrick III, who has served as judge since 1995, begins this first installment of the series with a discussion on the first step in a criminal case — the arrest.

“An arrest can be made with or without a warrant,” Kirkpatrick said. “When an arrest is made with a warrant, the police officer is acting under the authority of a magistrate or judge.”

However, where there is not a warrant, an officer is acting on his or her own authority. For example, if a crime plainly occurs in front of a police officer, the officer does not need to obtain a warrant. He or she can arrest the offender on the spot.

A warrant, Kirkpatrick said, is an order issued by a magistrate or judge directing a police officer to apprehend the accused person and bring him or her before a magistrate or other judicial officer. An investigating police officer must appear before a magistrate, fill out a criminal complaint under oath and describe the facts that would constitute the commission of a crime.

Kirkpatrick said the complaint must specifically identify the accused.

“If the magistrate finds that probable cause exists that an offense has been committed, or is being committed, the magistrate can then issue a warrant for the arrest of the accused person.”

Probable cause simply means having evidence that the accused committed the crime with which he or she was charged. Kirkpatrick said the magistrate making this determination must be fair-minded and use good common sense.

Finding probable cause isn’t just a “rubber stamp kind of thing” though — “The magistrate can, and sometimes does, find that no probable cause exists,” and he or she would refuse to issue the warrant.

For nonviolent crimes or relatively minor offenses, a magistrate can issue a summons instead of a warrant for the arrest of the accused. A summons commands the person to appear before the magistrate at a specific day and time, but if the accused fails to appear, a warrant for his or her arrest is then issued.

How exactly does someone know if he or she is under arrest?

“It is just like on TV shows, such as ‘Law and Order.’ The arresting officer simply says something to the effect of ‘You are under arrest’ or ‘I’m placing you under arrest.’”

He said the key is whether the accused is physically taken into custody for the purpose of bringing that person before a judicial official.

It’s possible that people may not know they are under arrest though, as an arrest carries a physical and mental connotation.

“An arrest could be made without the police officer touching the arrestee. For example, a person could confess to a crime and the police might instruct him or her to remain in the car. No formal declaration of arrest is actually required. What is important is whether or not the police have detained the person and have subjected that person to the will and control of the officer. If a person is deprived of his or her liberty, that is (equivalent) to an arrest.”

When people are arrested, they must be read their “Miranda Rights” or “Miranda Warnings,” which Kirkpatrick said is based on the famous case of Miranda vs. Arizona.

These warnings caution the accused that he or she has the right to remain silent, any statement made by him or her may be used in a court of law and he or she has the right to an attorney.

“Most police officers have these on paper and will read the rights to the accused, then have the person sign the form to confirm that the rights were read.”

Miranda rights are read right after the arrest because the police may want to question the person in custody. Kirkpatrick said it is important to note, though, that as soon as a person becomes a suspect, he or she must be warned before further questioning.

“This interval can occur at any time during the investigation and can precede the arrest. The accused can waive the Miranda rights and submit to an interrogation by the police.”

Do people who are in custody ever confess to the crime in real life like they often do in TV shows and movies?

“Surprisingly, yes,” Kirkpatrick said. “Defendants will many times waive their Miranda rights and speak freely, at length and often to the police, incriminating themselves.”

He said “savvy defendants” will keep quiet and “lawyer up.”

Taking a confession from the accused can be somewhat tricky though — “It can be the most critical juncture of a criminal case.”

Police officers want to wrap up their investigation by obtaining a full statement from the accused, Kirkpatrick said. However, the police are not allowed to use coercion, unlawful inducement or unlawful conduct to cause the defendant to give a statement.

“Any confession has to be voluntary, and that issue turns on the facts and circumstances of each case.”

Kirkpatrick said the police officer will then take the arrestee to the magistrate for the initial appearance in the court system, where we’ll pick up our discussion next week.

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