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Miranda Rights: an informed notification of Constitutional rights.

Custody: an arrest; a person is in custody when his or her freedom is restricted so that leaving the area is impossible.

Search: a legal search may require a warrant or be conducted without a warrant.

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An arrest occurs when a suspect is taken into custody for the purpose of booking that suspect on a criminal charge.

Arrest Warrant vs. Search Warrant

A search warrant provides a law enforcement officer with the authority required by law to gain access to a premise, conduct a search, and seize property. An arrest warrant permits a law enforcement officer to make a lawful arrest of a specific person. Arrest warrants and search warrants are issued by judges and only available to law enforcement agents (including the FBI - Federal Bureau of Investigation - and DEA - Drug Enforcement Agency), but neither are available to private citizens. Lastly, it is important to know that a person can be arrested on an outstanding warrant in Wisconsin or another state and extradited to Wisconsin. "Most Wanted" and "Wanted" notices in post offices solicit information about people wanted on outstanding arrest warrants, usually offering a reward for information leading to arrest.

Arrest Warrant Issuance

An arrest warrant is obtained by a law enforcement agent (typically, by a federal agent, state police, county sheriff, or local police officer) after having appeared before a judge (usually a magistrate) and presenting evidence that substantiates cause for an arrest. The evidence presented to the judge to obtain the warrant may become a legal technicality in a criminal case, but generally speaking, the evidence need only cause a reasonable person to conclude that a crime was committed. The evidence need not prove a crime beyond a reasonable doubt, nor even be clear and convincing. Arrest warrants are very similar to search warrants in this manner; both require evidence that causes a reasonable person to believe that a crime has been committed.

Knock & Announce & Don't Destroy

An officer with an arrest warrant is required by law to knock and announce his presence before entering the premise of another even if the officer positively identifies, absolutely knows, or has a reasonable belief that the suspect is within the premise. That's the law. And it is possible that the procedures employed to obtain a warrant or to exercise a warrant will become a legal question in a case based on many technicalities, so these are just general guidelines.

Now, generally speaking, here are some of the exceptions to the rule. The amount of time between "knocking and announcing" and "entering and arresting" can be slight. The officer need not knock or announce if he has a reasonable belief that by doing so, he may place himself or others into a dangerous situation, evidence may be moved or destroyed, or even if he believes that some other event might occur that would hinder the arrest. Under Wisconsin law, the "knock and announce" rule has been challenged many times.

An officer should not destroy property unnecessarily during an arrest, but he may "break in" thus destroying windows and doors to gain access.


If a person (or sometimes a witness) fails to appear in court as directed by the citation or summons served on them, the court may issue a bench warrant for the person's arrest. The "bench warrant" is sent to the local, state, or national authorities, as the case may require. A bench warrant effectively tells the authorities to bring the person named in the warrant to the courtroom of the judge issuing the warrant.


When a person is arrested, the arresting officer may legally search the person and the area immediately under the control or reach of that person for evidence in connection with the purposes of the warrant, to protect the police from injury or attack, or to prevent the person from escaping. The officers may legally seize 'fruits of the crime', such as any instruments, articles, or other things that may have been used in the commission of a crime or serve as evidence in connection with the crime.

Miranda Rights

Miranda rights acquired their name from a Supreme Court case involving a person with the last name "Miranda" and a violation of that person's rights. Consequently, whenever a person is arrested and charged with a crime, the authorities mirandize the alleged defendant, which means, in short, that they read or recite the Miranda rights.

You have the right to remain silent (meaning you cannot be forced to give evidence that may incriminate you in a crime or wrongdoing). If you give up that right, then anything that you say can and will be used against you in a court of law. (Your statements can be used in court and will be used in court to convict you.) You have the right to counsel (meaning you should have your lawyer present). If you cannot afford one, one will be appointed for you (if you are indigent, you have the right to a public defender; if you are not indigent, then you do not; however, you may have the right to a lawyer appointed by the court). Do you understand these rights?

Perhaps much like the common misunderstanding about double jeopardy, there is a common misunderstanding about a person's Miranda rights. The police are not required to inform you of your Miranda rights until such time that they are questioning you for the purpose of gathering evidence against you to use against you in a court of law. However, they can question you, and they can arrest you without providing your Miranda rights. There is a very fine line between a violation of your rights and investigative questioning. It is a wise choice to refrain from answering questions without an attorney present, and to consult with that attorney about anything that happened in the case prior to retaining his or her services.


If you have been arrested, please call ( in Madison, or statewide) or e-mail the lawyers at Van Wagner & Wood right away. They will give you a brief but professional first-impression analysis of your case and your situation, which will allow you to take an important first step in preparing your defense. >> SUBMIT CRIMINAL CASE >> SUBMIT OWI CASE >> EMAIL CHRISTOPHER VAN WAGNER >> EMAIL TRACEY WOOD

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