Tag Archives: Arrest

After an Arrest in Pennsylvania, You Get a Free Phone Call, Right? Well, Not Exactly…

Having watched a lot of Law & Order, most individuals believe that upon arrest, they will be provided at least one free phone call but that isn’t exactly true in Pennsylvania.

Upon arrest, there is no immediate right to a phone call in Pennsylvania. Within a reasonable time of being arrested, the Police officer must either release the defendant or bring the defendant before a Magisterial District Judge to be preliminarily arraigned on charges.

What is a reasonable time? Unfortunately, this is has never been strictly defined in PA and has varied on a case by case basis. One day is generally accepted to be the longest acceptable time to be held without being arraigned.

Moreover, the police do have the authority to arrest people and then release them to be charged later by citation or summons. This type of arrest and release is only allowed in public drunkenness and DUI cases, or in cases in which the individual cannot immediately verify their identity.

There is no right to call anyone during that period of time.

If the police do choose to question a defendant, the individual’s Miranda Rights are implicated. The police must advise a defendant of those rights, including the right to counsel. If a defendant invokes his right to counsel (which you should ALWAYS do IMMEDIATELY, regardless of what the police threaten you with or promised to you), questioning must cease, although there are plenty of examples where the police or a different police officer continues asking questions. In our experience, in most instances, the police will simply end questioning upon invocation of counsel and will not give a defendant an opportunity to obtain counsel.

After the police prepare the charges, a defendant will be brought before a Magisterial District Judge for preliminary arraignment. A defendant does not have a right to contact anyone, including counsel, before or at arraignment. Some judges have also made it difficult for lawyers who know that their client has been arrested to appear at preliminary arraignment (we believe that this a violation of the 6th amendment but have never had a chance to litigate it).

However, after preliminary arraignment, a defendant does have a right to contact individuals, including his/her attorney. The Pennsylvania Rules of Criminal Procedure, Rule 540 states:

 (H)  After the preliminary arraignment, if the defendant is detained, the defendant shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail as provided by law.

There is no case law interpreting this provision.

At this point, depending on the county, the defendant may be held in custody by the police, the sheriff or a constable. In our experience, the magisterial district judge will normally allow for multiple phone calls.

But, what if my attorney’s phone number is in my wallet or on my phone? Generally, a Judge will allow a defendant to review his/her cell phone or wallet for any phone numbers. We have also seen cases in which the Judge will allow a defendant to use a phone book or will direct court staff to do an internet search to get a phone number. We’ve also seen judges put a defendant in a room with a phone and tell them that they have 15 minutes to call whoever they want.

The only time that we have seen a defendant not be allowed to check their cell phone is if the phone may constitute or contain evidence of a crime. For example, drug dealers often exchange text messages about drug deals. A court would not give a defendant the chance to delete text messages.

So, while there is no obligation to allow a defendant to have access to a wallet or cell phone, the arraigning court does regularly allow it. Even if a defendant is not given that access, they can certainly use a phone book to look up their attorney’s number, or they can call a family member or have a family member call their attorney.

If you or someone you know has been charged with a crime, contact Prince Law Offices, P.C. today to discuss YOUR rights and legal options.


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Supreme Court and Individual Freedoms – Difficult to Determine, Harder to Rationalize


Well, It would seem that my blog from last time may have been a bit premature.  Recently, the Supreme Court ruled that it is sometimes OK to take DNA samples of arrestees.

The United States Supreme Court.

The United States Supreme Court. (Photo credit: Wikipedia)

How does this case differ from police taking blood for a DUI/DWI stop is the immediate question that follows this recent ruling.  In each case fluids of the individual are being taken. In the case of blood, the police/government argued that circumstances might exist that would cause the evidence (blood/urine) to become unusable, and therefore should not require a warrant.   The Court, however, found that if the totality of the circumstances so warranted the intrusion, then there should be no problem getting a judge to sign a warrant for the taking of the fluids.

In the DNA case, “In a 5-to-4 decision, the high court said that as long as authorities have probable cause supporting an initial arrest for a “serious” crime, the government may collect DNA from any arrestee, store it in a database, and use it to help solve other crimes. Such a routine collection procedure is reasonable under the Fourth Amendment, the court said.”

So it would seem the Court is trying to balance the intrusion by the seriousness of the crime, and not the loss of liberty to the individual.  One could argue that the mere swabbing on an arrestee’s mouth does not give rise to a level of intrusion on personal liberties, because DNA can be gotten from almost anywhere; hair, skin, silica, etc.  Most people leave DNA all over the place without even knowing it – see my dogs hair in my car for a better understanding.  In fact, one can say that since the police are allowed to take and keep fingerprints, then DNA should also be allowed.

This, however, does not mean that the government should get a free pass to collect and maintain such information on an individual, especially when the person in question has not been convicted.  If the police are arresting an individual, and said individual is properly charged and convicted, then by all means, the government should have a record on that person.  However, until the final verdict, that individual must be protected to the fullest extent that the Constitution and state law provides.  And that means obtaining a warrant.


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