Being Arrested
11 Del. C. § 1909 — before a magistrate within 24 hours, and a warrant shown on request
Without a warrant, an officer may arrest for a misdemeanor committed in the officer's presence, and for some committed outside it, among them:
- A misdemeanor involving physical injury or the threat of it, or illegal sexual contact.
- A violation of a protective order.
- A misdemeanor on school property.
- Shoplifting, where a store employee who saw it is present.
For a felony, an officer may arrest without a warrant on reasonable ground to believe the person committed one.
Within 24 hours. Every person arrested and not released is brought before a magistrate without unreasonable delay, and in any event within 24 hours, unless the court for good cause orders a further hold of up to 48 hours.
- An officer acting under a warrant need not have it at the arrest, but if the person asks, the warrant is shown as soon as practicable.
- For a misdemeanor, an officer may give a written summons instead of arresting, and wilfully failing to appear on it can bring a fine of up to $100 or up to 30 days, or both.
Several rules about an arrest come from the Supreme Court of the United States rather than from this state's code. It has held that before questioning a person in custody, officers must warn that the person may remain silent, that anything said can be used against them, and that they have a right to a lawyer, appointed if they cannot afford one; that a person arrested without a warrant is entitled to a prompt decision by a judge on whether there was probable cause; and that officers generally need a warrant to search the data on a phone taken from a person they arrested. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Whether a particular arrest was lawful is a question for a licensed Delaware attorney.
Sources for this section (7)
- 11 Del. C. § 1904 — Arrest without warrant
- 11 Del. C. § 1909 — Hearing without delay; permissible delay
- 11 Del. C. § 1906 — Possession and display of warrant
- 11 Del. C. § 1907 — Summons instead of arrest; form; penalty for nonappearance
- Miranda v. Arizona, 384 U.S. 436 (1966) — Right to remain silent and to counsel during custodial interrogation
- County of Riverside v. McLaughlin, 500 U.S. 44 (1991) — Probable cause review generally within 48 hours of a warrantless arrest
- Riley v. California, 573 U.S. 373 (2014) — Police need a warrant to search a phone seized during an arrest
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Delaware attorney.