Being arrested in California triggers a specific set of constitutional and statutory protections, including the right to remain silent, the right to an attorney, the right to make phone calls within a set window of time, and the right to be brought before a judge without unnecessary delay. These rights exist regardless of the charge involved, and understanding them can help clarify what to expect in the hours and days immediately following an arrest.

The Right to Remain Silent

Under the Fifth Amendment, no person can be compelled to be a witness against themselves. In the landmark case Miranda v. Arizona, the United States Supreme Court held that before police may conduct a custodial interrogation, they must inform a suspect of certain rights, commonly known as Miranda rights, including the right to remain silent and the warning that anything said can be used against them in court.

These warnings apply specifically to custodial interrogation, meaning formal questioning after a person is in custody, and simply being asked routine questions during a traffic stop does not necessarily trigger this requirement. Once the right to remain silent is invoked, officers must generally stop questioning.

The Right to an Attorney

The right to counsel exists throughout the criminal process, but it operates somewhat differently depending on the stage. During custodial interrogation, invoking the right to an attorney under Miranda generally requires officers to stop questioning until an attorney is present, unless the suspect reinitiates contact.

If a person cannot afford an attorney, the court will appoint one, though this formal appointment typically happens at arraignment rather than immediately upon arrest. Because of this gap, a person taken into custody may spend the period between arrest and arraignment without appointed counsel unless they retain a private attorney or an attorney is contacted on their behalf.

The Right to Know the General Reason for an Arrest

Under California Penal Code Section 836, a peace officer generally needs probable cause to make an arrest. While officers are not always required to explain the specific criminal statute at the exact moment of arrest, a person has the right to be told the general reason for the arrest as soon as practicable, and the specific charges are formally presented at arraignment.

The Right to Make Phone Calls

California Penal Code Section 851.5 gives an arrested person the right to make at least three completed telephone calls, immediately upon booking and, except where physically impossible, no later than three hours after arrest.

These calls may be made to an attorney, a bail bondsman, or a relative or other person, and must be free of charge within the local calling area. A call to an attorney generally cannot be monitored or recorded, though calls to other individuals may be. Arrested persons who are custodial parents of a minor child are also entitled to two additional calls specifically to arrange care for that child.

The Right to Be Brought Before a Judge Without Unnecessary Delay

Under California Penal Code Section 825, a person arrested without a warrant must generally be taken before a magistrate within 48 hours of arrest, excluding Sundays and holidays, subject to certain adjustments when that period would otherwise expire outside of court hours.

This appearance, known as arraignment, is where the court formally presents the charges, addresses the question of bail or release, and the defendant enters a plea. This deadline exists to prevent someone from being held indefinitely without judicial review of their detention.

The Right Against Unreasonable Search and Seizure

The Fourth Amendment protects individuals from unreasonable searches and seizures, and this protection extends to arrests and the property connected to them. In Riley v. California, the United States Supreme Court held that police generally need a warrant to search the contents of a cell phone, even when the phone is seized during a lawful arrest, recognizing the uniquely personal nature of the data phones contain.

When evidence is obtained through an unlawful search, California Penal Code Section 1538.5 provides a mechanism to file a motion to suppress that evidence from being used in court.

Bail Rights After In re Humphrey

California bail practices changed significantly following the California Supreme Court’s 2021 decision in In re Humphrey. The court held that conditioning pretrial release solely on whether a person can afford a set bail amount, without any consideration of their actual ability to pay, violates due process and equal protection.

Under this ruling, when a court determines a financial condition is necessary, it must also consider the arrestee’s ability to pay, along with the seriousness of the offense and criminal history, rather than applying a fixed bail schedule without any individualized review.

What Happens When Rights Are Violated

A violation of these rights does not automatically result in a case being dismissed. For example, if police fail to properly advise a suspect of their Miranda rights before a custodial interrogation, statements made during that interrogation may be suppressed and excluded from evidence, but the prosecution may still proceed using other evidence gathered independently.

Whether a particular violation meaningfully affects a case often depends on how central the excluded evidence or statement was to the prosecution’s overall case.

Practical Steps After an Arrest

  • Clearly state that you are invoking your right to remain silent and want an attorney
  • Avoid explaining, justifying, or discussing the incident with officers
  • Use your phone calls to contact an attorney or a trusted person who can help arrange one
  • Do not consent to a search of your phone, vehicle, or property without understanding your rights
  • Write down what you remember about the arrest as soon as you are able

Getting Help After an Arrest

Because the period immediately following an arrest often shapes the rest of a criminal case, understanding which rights apply, and whether they were properly honored, is an important early step. Reviewing the specific circumstances of an arrest with someone familiar with California criminal procedure can help clarify what options may be available.

Talk to a Fresno Criminal Defense Attorney 

The hours immediately following an arrest are often the most consequential part of a criminal case. The Law Office of Brian C. Andritch represents clients throughout Fresno in criminal defense matters, drawing on nearly eight years of experience as a former Deputy District Attorney. Reach out through our contact page or call (559) 594-3906 to discuss your situation.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For legal guidance tailored to your specific situation, consult a licensed attorney.