If you are not free to leave, you are under arrest and entitled to bond out

As I mentioned in the previous post about the legal fiction of “domestic violence holds,” I have had many clients arrested on what law enforcement called an “investigative hold.” This practice is downright unlawful. In such cases, there is no arrest warrant yet. Rule of Criminal Procedure Rule 4.3(a) says on a warrantless arrest:

If a probable cause determination is not made by a judge or magistrate without undue delay, and in no event later that forty-eight (48) hours after arrest, then, unless the offense for which the person was arrested is not a bailable offense, the person shall be released upon execution of an appearance bond
After arrest, a person’s right to bond immediately springs into play. The arrested person must be presented to a judge or magistrate “without undue delay” to determine probable cause for the arrest and establish their constitutional right to bond. Alabama Constitution § 16
That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.
Some law enforcement agencies attempt to side-step these rules and claim the person is not “under arrest.” A person is either free to leave, and if not, they are legally under arrest. “In order to decide if a suspect is ‘in custody,’ the court, looking at the totality of the circumstances, must find that a reasonable person in the accused’s position would believe that he or she is not free to leave.” State v. Jude, 686 So. 2d 528, 533 (Ala. Crim. App. 1996)

 

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