Criminal F.A.Q.'s

• What happens if I am arrested?
  
  If you are arrested for breaking a criminal law, you may be taken before a magistrate or judge who will set bond to guarantee your future appearance in court. If the defendant cannot post the bond, he or she may be incarcerated pending appearance in court. If bond is posted, he or she will remain free pending appearance at an arraignment. An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge or magistrate. During the arraignment the defendant is formally told what offense he or she is charged with, told his or her constitutional rights and of the possible penalties. The defendant will enter a plea of guilty or not guilty, bond may be reviewed and a date for the next hearing will be scheduled.



• Can they use force to arrest me?
  
  A police officer may use as much force as is necessary to arrest you. After arrest, a police officer may handcuff you.



• What is a search warrant?
  
  A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.



• What is probable cause?
  
  This is a difficult one. There is not a bright-line rule establishing precisely what is and what is not probable cause. Probable cause requires objective facts indicating a likelihood of criminal activity. A police officer's hunch, with nothing more, will not satisfy the requirements.
  
  Example: Officer Doright observes Tom and Dick walking down the street. Officer Doright has a hunch that Tom and Dick are up to no good. Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for their home.



• Should a judge grant the warrant?
  
  No. A police officer's hunch, with nothing more, will not satisfy the probable cause requirement. However, if Officer Doright observed Tom and Dick conduct a drug deal, then probable cause would likely exist for a warrant to search their home.



• If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
  
  Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence, car or person.



• What if I agree to the search?
  
  If you voluntarily consent to a search of your home, automobile or person, than the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court.



• What is the Plain View doctrine?
  Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be.
  
  EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather. While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Doright can legally seize these items without a search warrant because they are in plain view.



• If I am arrested, can the officer search me?
  
  Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.



• What is bail?
  
  Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.



• What happens at a bail hearing?
  
  The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results. A judge holds an official arraignment later.



• Own Recognizance - This is the defendant's written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required.
• Unsecured Bond - This release pending court appearance is based on the defendant's written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
• Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
• Ineligible for Bail - The defendant is denied a release pending court appearance.

The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.


• What happens at an arraignment?
  
  You have the right to be arraigned without unnecessary delay -- usually within two court days -- after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one and bail can be raised or lowered. You also can ask to be released on personal recognizance even if bail was previously set.
  
  If you are charged with a crime, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.
  
  Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.
  
  If misdemeanor charges are not dropped, a trial will be held later. If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.



• What will happen at a preliminary hearing?
  
  Every person who is charged by warrant is entitled to a preliminary hearing. If a person remains in jail, he or she is entitled to a preliminary hearing usually within 10 days of arrest. If a person is released from jail on bond, he or she is entitled to a preliminary hearing usually within 30 days of arrest.
  
  A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes.
  
  If the judge makes a finding of probable cause after hearing the evidence, the defendant is bound over for trial. If the judge does not find that it appears that an offense has been committed or that the accused is likely the person who committed an offense, the accused is discharged and the charge is dismissed. However, the District Attorney may refile at a later date if more evidence is uncovered.




Right to an Attorney

From the time you are arrested, you are entitled to an attorney. Before you talk to the police or investigators, a suspect should always retain an attorney to protect his or her rights. The laws of search and seizure, knock notice, warrants and warrantless arrests are complex. An experienced criminal attorney can insure that the police conduct is proper and that the rights of the accused are not violated and that the correct procedures are followed.

This office has conducted numerous felony trials and representation for persons accused of drug offenses, DUI, shoplifting, assault and battery, three strikes, theft and domestic violence. We never charge a consultation fee. Therefore, if you are arrested, accused of a crime or being investigated for possible criminal violations, you should call this office and speak to an attorney.