Questions Criminal Defense Lawyers Are Frequently Asked

1)     What is a search warrant?

2)     What is needed to obtain a search warrant?

3)     To conduct a search, must the police always have a warrant?

4)     If a police officer or agent says you are being investigated and that officials want to talk with you at the police station or their office so as to eliminate you as a suspect, what should you do?

5)     If a police officer or federal agent arrests you and wants you to give a statement, what should you do?

6)     If you are ordered to go to the court or police station for “booking,” what does this mean?

7)     How does bail work?

8)     What is an Arraignment?

9)     Who prosecutes white collar crimes?

10)   What determines whether a prosecutor will pursue a case?

11)   What are the federal guidelines on sentencing?

12)   What is restitution?

13)   What is a plea bargain?

1)   What is a search warrant?

A search warrant is an Order signed by a judge that permits the police or government agents to enter property to look for items specified in the warrant.  The warrant is based upon probable cause of criminal activity. The place to be searched & the items to be seized must be described with particularity.  In general, authorities must obtain search warrants before conducting a search of private property. Searches conducted without warrants are usually presumed to be 'unreasonable' and may be challenged in court.

2)   What is needed to obtain a search warrant?

The authorities must convince a judge there is probable cause for a search based upon the likelihood a crime has taken place or that items connected with a crime will probably be found on the property.  Information corroborating a search usually comes from observations of the police –or, other governmental authority– or, from a trustworthy informant.

3)   To conduct a search, must the police always have a warrant?

There are situations in which the police or authorities do not need to have a search warrant, such as:

•   Search after or incident to an arrest

•   Searches based upon public safety

•   Searches to prevent destruction of evidence

•   Consensual searches

•   Searches based upon hot pursuit

4)   If a police officer or agent says you are being investigated & that they want to talk with you at the police station or their office to eliminate you as a suspect, what should you do?

You should immediately contact an experienced criminal defense lawyer. Police or federal authorities are not required by law to tell you the truth during an investigation. 

They may say they have evidence against you they do not have.  The intent may be to arrest you, trap you into making statements, or, divulge information that could incriminate you.  Your attorney can inquire to find out about the investigation & advise you on how to protect yourself.  Many people assume that because they are innocent there will be no adverse consequences.  However, innocent people do get arrested & some convicted of crimes they did not commit.

5)   If a police officer or federal agent arrests you and wants you to give a statement, what should you do?

You might think it better to explain your innocence; however, what you should do is ask to speak to a lawyer. 

Statements you make in your favor may be left out of the report.  Other statements may be taken out of context, twisted or embellished and presented to show you committed a crime.  The authorities may threaten you, play on your sympathies, try to make you feel guilty & use any number of tactics to get you to say what they want to hear. 

After you say you want to speak to a lawyer, the authorities no longer have the right to question you.

6)   If you are ordered to go to the court or a police station for “booking,” what does this mean?

"Booking" means you will be photographed and fingerprinted and your information entered into one or more criminal justice system databases.  Generally, you will go into a holding cell after booking until you appear in court and/or bond is arranged.

7)   How does bail work?

Bail is a pledge posted for your release from jail & is generally money or property given as an assurance you will appear in court as required.

The bail amount set is based upon the circumstances, including the seriousness of the alleged crime, a defendant's ties to the community & past history, if any, with the criminal justice system.  You may pay the bail amount yourself, pay a bail bondsman a fixed percentage of the amount of bail, or, have a family or friend post bail for you.  If you, a friend or family member posts bond, once your case is over, the cash is returned or bond on property (a lien on property posted as collateral) is discharged. 

A bailbondsman is an agent for a commercial surety – that is, an insurance company.  The percentage paid to a bondsman is a 'premium' (10% in state court matters & 15% in federal cases), for the cost of the insurance & the bondsman's fee.  It is not returned at the end of the case.

A bondsman will generally also seek collateral to further secure his undertaking.

8)   What is an Arraignment?

An Arraignment is a court hearing where a defendant appears before the Court to be informed of his rights & the nature of the formal charges filed against him.  At that time, the Defendnat is also called upon to plead guilty or not guilty.  Most defendants plead not guilty at the Arraignment.

9)   Who prosecutes white collar crime cases?

White collar crimes are prosecuted by both state & federal prosecutors. 

Most white collar cases involve lengthy investigations often conducted in more than one state, or, federal district.  Sometimes such investigations involve foreign law enforcement agencies as well.  For these reasons most white collar cases are investigated & prosecuted by the federal government. 

Federal agencies such as the IRS, FBI, DEA, Department of Homeland Security (both Customs & Immigration), Secret Service, or, the Bureau of Alcohol, Tobacco, Firearms & Explosives investigate these kinds of cases.

Prosecution is handled by attorneys from the Department of Justice or the local United States Attorney's Office.

10)            What determines whether a prosecutor will pursue a case?

 A prosecutor will usually pursue a case based upon the following:

• Legal soundness of the case; i.e. no obvious defects such as violations of constitutional rights or destruction of vital evidence;

• Substantial evidence for possible conviction;

• Evaluation of whether trial is appropriate or awhether an alternative disposition is appropriate.

11)           What are the federal guidelines on sentencing?

The United States Sentencing Guidelines were established in 1987 & were mandatory until 2005 when the Supreme Court determined the Guidelines are advisory only.  That means judges do not have to adhere to the guidelines; but, they must still consult and consider them.

12)                What is restitution?

Restitution is monetary compensation given to a victim for costs and/or losses they suffer as the result of the crime.  The federal Monetary Victims’ Restitution Act of 1996 provides for restitution for losses to victims who suffer directly from a crime for which a defendant is convicted.  Restitution is ordered at the time of sentencing.

13)                What is a plea bargain?

A plea bargain is an agreement arrived at between the defense and the prosecution to avoid trial based upon a guilty plea –or, sometimes a no contest plea– generally to to a lesser charge, with less serious penalties.

You are not required to accept a plea bargain.  If you refuse such an offer, the prosecutor may withdraw the offer.  An experienced criminal defense attorney can help you evaluate a plea offer versus the prospects of trying the case.

Final Thoughts

The foregoing are some very, very basic questions criminal defense practitioners are often asked.  This list is just a beginning, to be sure.

If you like, feel free to call us to discuss your individual situation & questions.

Remember, in our system of jurisprudence, all information you share with a criminal defense lawyer is legally privileged & confidential.  What you share with your family, friends, neighbors, co-workers, etc. is not privileged.  Therefore, do not discuss your case with anyone.