CONTENTS. CHAPTER ONE: Things to know if you are arrested CHAPTER TWO: Can the police question you without reading your rights?...

Transcription

1

2

3 CONTENTS CHAPTER ONE: Things to know if you are arrested CHAPTER TWO: Can the police question you without reading your rights? CHAPTER THREE: What can the police stop you for? CHAPTER FOUR: How much proof do the police need for an arrest? CHAPTER FIVE: Can my case be dismissed? CONCLUSION: Who we are APPENDIX ONE: Defense Attorney Interview Checklist

4 FORWARD We wrote this book because you have questions. We understand that the moment a criminal allegation is made against you, your life changes. That accusation becomes biggest problem in your life and you start to feel the weight of the state or federal government bearing down on you. You will begin thinking not only about your freedom, but how this is going to affect your family, your career, and your record. You have so many questions, but you do not know where or how to start finding answers. We wrote this book because we have the answers. With over thirty years of combined experience as criminal attorneys in Texas, we have handled tens of thousands of cases ranging from shoplifting cases all the way through capital murders. Collectively, we have tried over three hundred state and federal jury trials. Our experience equips us with the ability to answer any question you could have about the criminal justice system or the charges you are facing. Our Board Certified Criminal Lawyers have achieved the designation of being specialized in criminal law, a designation that less than 1% of criminal lawyers have achieved in Texas. We wrote this book because we are here for you. When you hire our firm, we become your voice, your advocates, and your counselors. Your problems become our problems. If you are looking for a law firm that defends you as they would their own family members, you are at the right place. We hope that you find this book to be useful for general information about the criminal justice system. For specific questions about your circumstances, call us at (817) We look forward to hearing from you. 4

5 CHAPTER ONE THINGS YOU SHOULD KNOW IF YOU ARE ARRESTED Do not talk to the police. This is the single-most important thing to remember when you are being accused of any offense. Regardless of what the officer, detective, or investigator tells you, you are not going to help yourself by talking to them. You will either inadvertently incriminate yourself or box yourself into a particular defense that will haunt the rest of your criminal prosecution. Invoke your right to remain silent by making a statement informing the officers your intention is to remain silent. No warrant? No problem. Law enforcement does not have to show you a copy of an arrest warrant upon arrest and in some situations they don t need a warrant at all. There are warrant and warrantless arrests. A skilled defense attorney will know the challenges that can be raised for either situation. Do not volunteer information. There is a common misconception that your Miranda warnings must be read to you if you are under arrest. False. They are only required if you are in custody and being interrogated. Any voluntary statement you make will be used against you. The police can lie to you. Detectives can be both charming and convincing to get the information they want from you. They may tell you that they have not made an arrest decision yet, or invite you to come talk at the police station to tell your side of the story, or even assure you it could help your case to talk. In almost every case, the decision to arrest is made before you are ever contacted. Jail phone calls are recorded. There is no such thing as private communication inside the jail. While you are in custody, the only privacy that will be afforded to you is communication protected by the attorney-client privilege. Convictions are not inevitable. Even if you are guilty, there may be ways to get the case dismissed, no-billed, reduced or deferred. Consider options that will keep a conviction off your record. Court-appointed attorneys are not always free. The judge may require that you pay attorney fee as a condition of being out on bond and as a condition of probation if you get probation. You do not get to pick your court-appointed attorney. As a result, if you have a court-appointed attorney, you may be paying for an attorney without having any input on who you are paying for. 5

6 CHAPTER TWO CAN THE POLICE QUESTION YOU WITHOUT READING YOUR RIGHTS? Your arrest for any criminal offense triggers several constitutional protections. Once in police custody, the United States Constitution guarantees your 5th Amendment right against self-incrimination and 6th Amendment right to legal representation, whether you can afford it or not. You also have protections under the Texas Constitution and other laws of the State of Texas. To ensure you are aware of these protections, law enforcement must provide you with a set of warnings before they begin a custodial interrogation. These warnings are called your Miranda Warnings and you have likely heard them before even if this is your first arrest. The wording may vary depending on your location and the police officers involved, but legally sufficient warning should include the following: MIRANDA RIGHTS ONLY APPLY DURING CUSTODIAL INTERROGATION Police officers are only required to read your Miranda rights before a custodial interrogation. Police questioning is fair game prior to the moment you are in custody. Where are you coming from? Where have you been? Have you been drinking anything tonight? Is that marihuana I smell? Do you have anything in the vehicle I need to know about? Anything illegal on your person? Questions such as these are completely legal and should be expected during any voluntary encounter, routine traffic stop, or investigation. To determine at which point in your investigation you are protected against such questions, you must first understand what being in custody means. You are considered to be in custody when a reasonable person in your position would believe his or her freedom of movement is restrained to the degree associated with a formal arrest. When most people think of being in custody, they think of a formal arrest wearing cold, metal handcuffs and sitting in the back of a squad car. However, any number of things could escalate a situation where you would be in custody without an officer mentioning the word arrest or flashing his shiny handcuffs. For example, if you enter an interview room and the police shut and lock the door behind you, you may be in police custody and entitled to constitutional protection without a formal arrest. The 6

7 reverse is also true. You may be handcuffed and placed in a patrol car without being in custody for Miranda purposes. For example, police may handcuff you for officer safety while conducting their investigation and without triggering your rights. WHAT IS AN INTERROGATION? Once it is determined you are in custody, you are protected against police interrogation. Interrogation can be any questioning other than basic identifying information. What is your name? blood? These are not questions protected by your Fifth Amendment against self-incrimination. However, any questions asked or statements made with the intent of using the response in a criminal prosecution will trigger protection. If you are subjected to a custodial interrogation and entitled to Miranda warnings, the police must satisfy a couple of requirements. First, an officer must provide the warnings in their entirety. Even minor deviations in the wording may render your responses inadmissible in court. Second, an officer is required to have you acknowledge you understand your rights. Simply reading Miranda warnings from a card is not sufficient. There is no presumption you write, read or speak the language Miranda was given in. ADDITIONAL PROTECTIONS IN TEXAS In Texas, Code of Criminal Procedure Article provides additional protections. An oral statement made as a result of custodial interrogation is not admissible unless a video recording is made of the interrogation. WHAT HAPPENS IF YOU ARE NOT PROVIDED WITH THESE PROTECTIONS? What happens if you are in custody and the police question you without properly advising you of your rights? If you are not properly Mirandized, and are subjected to a custodial interrogation, your responses, even if incriminating, can be suppressed and deemed inadmissible by a court. This means that even if you confess to a heinous crime, that confession may not be used against you because it was obtained in violation of your rights. You will need an experienced Tarrant County criminal defense attorney to present these issues to the court in a Motion to Suppress and fight to have your incriminating statements thrown out. EXERCISE YOUR RIGHT TO REMAIN SILENT Do not forget that just like you have a constitutional right to not involuntarily incriminate yourself, your right is just as strong to incriminate yourself voluntarily. This is a common mistake people make when arrested and transported to jail. Remember that most police cars, and even officer uniforms, have audio and video equipment. You are likely recorded throughout your entire interaction with police, even when alone inside the patrol vehicle. Yelling I hate cops or I am going to vomit because I am so wasted or I wish I had killed that guy are not statements you want to hear played back for you in front of a jury during trial. Keep your mouth shut, follow the police orders, and find a qualified criminal defense attorney to work out the rest in court. 7

8

9 CHAPTER THREE WHAT CAN THE POLICE STOP YOU FOR? Police officers often joke that if they cannot find a legal reason to stop your vehicle within 200 yards, then they are not doing a good job. There are two basic types of legal stops in Texas, those with warrants and those without. Police officers in Tarrant County and across the state of Texas can make temporary detentions of you and your vehicle for several reasons: (1) A Voluntary Encounter (2) Reasonable Suspicion and (3) Probable Cause. Proof Beyond a Reasonable Doubt Probable Cause Reasonable Suspicion Voluntary Encaunter VOLUNTARY ENCOUNTER A voluntary encounter occurs when a police officer approaches you in a public place, whether in your vehicle or not, to ask you questions. Unless the officer requires you to answer his or her questions, you are not protected under the Fourth Amendment against unreasonable search or seizure. When you are not protected under the Fourth Amendment, an officer can ask you anything they want for as long as they want because, as far as the law is concerned, you are not detained. What does that mean? That means you are free to refuse to answer their questions, free to walk away, and free to drive away. How do you know whether you are engaging in a voluntary encounter or are legally detained? A few simple questions directed at the officer will give you the answer. First ask, Do I have to answer your questions? If not, Am I free to leave? Sometimes these questions are already answered for you by the officer s actions. Some good indicators you are not free to leave are the use of an officer s overhead red and blue lights, use of a siren, or physical indication by the officer for you to pull over or stop. If you are free to leave, then leave. Once you do, an officer must come up with a legal reason to stop you and require your compliance. 9

10 If you choose to stay and answer an officer s questions, you may be giving him or her reasonable suspicion to legally detain you. For example, if an officer engages you in a voluntary encounter by asking your name and where you are headed, he or she may hear slurred speech (a sign of intoxication) or smell an odor of marihuana (a sign of marihuana possession) or see an open container of alcohol in your vehicle (a criminal offense). Now, they have reasonable suspicion to detain you further. Before you think you have nothing to hide, remember there have been passengers in your vehicle, other drivers, or previous owners who may have left something behind that could now get you in trouble. There are endless possibilities; the only way to avoid them all is to exercise your right to leave. REASONABLE SUSPICION What happens if your encounter with the police is not voluntary? An officer pulls behind you, lights up his red and blues, and orders you to the side of the road? You have been temporarily detained by law enforcement and are not free to leave; this is called a Terry Stop. Now the question for your criminal defense attorney becomes, Was this stop legal? For an officer to temporarily detain you, they must have reasonable suspicion a crime has been, is currently, or soon will be committed. Reasonable suspicion is a set of specific, articulable facts. It is more than a hunch or guess, but less than probable cause. In fact, reasonable suspicion is one of the lowest standards of proof in the criminal legal system. As such, it does not require proof that any unlawful conduct actually occurred before an officer can temporarily detain you. Out of the ordinary actions that are simply related to a crime may be sufficient. For example, you may be stopped for weaving within your lane at 2 a.m., just after leaving a bar. None of those things themselves are against the law, but all together could give an officer reasonable suspicion that you are driving while intoxicated and stop you to investigate. Because traffic offenses are crimes in the state of Texas, you can be legally detained under the suspicion of violating just one. There are hundreds, even thousands of traffic offenses for which you can be stopped. For example, an officer observes your vehicle in his rearview mirror traveling at a high rate of speed. Just as he looks down at his speedometer and sees his vehicle is going 49 mph in a 50 mph zone, you speed by him. He doesn t have to confirm your speed with his radar or laser (LIDAR) equipment. Based upon his training and experience, all he has to do is suspect that you are traveling over the speed limit due to his observations. That is enough for a temporary legal detention. OFFICER REQUESTS Once you have been legally detained, an officer can request several things of you. First, they can ask a series of questions. Second, they can request for you to complete several tasks: (1) Request you to provide your license or other form of identification to run you for outstanding warrants (2) Request you to provide your license, insurance, and registration, and (3) Request you exit the vehicle. At this point in an investigation, an officer can build a case against you without warning you of your rights. As such, everything you do or say can be used against you in court. ILLEGAL DETENTIONS Is it possible for your temporary detention by police to be illegal? Absolutely. An experienced criminal defense attorney in your local community can file a Motion to Suppress and fight the legality of your stop. A Motion to Suppress asks the court presiding over your case to review the facts surrounding your detention and rule on its legality. The presiding judge will look at all of the facts surrounding your temporary detention and decide whether the officer s actions were reasonable; this is called reviewing the totality of the circumstances. It is important to note that the judge may only consider facts the officer knew at the time of your stop and not facts obtained later down the road. 10

11 MOTIONS TO SUPPRESS If your Motion to Suppress is granted, then all of the evidence obtained after your stop will be inadmissible in court. Though the State has the right to appeal this decision to a higher court, an upheld Motion to Suppress will dispose of your case in its entirety, resulting in a dismissal and possible expunction or non-disclosure from your record. If the Motion to Suppress is denied, then your case will proceed as normal unless a decision is made to appeal the court s decision to the court of appeals. However, even if you have been legally, temporarily detained, a situation can escalate, with the passage of time, and require an officer to have probable cause to continue an investigation. PROBABLE CAUSE Sometimes an officer s observations of a person s behavior, driving or otherwise, lead to an opinion that is more than reasonable suspicion. When an officer s logical investigation discovers facts that would lead a reasonably intelligent and prudent person to believe you have committed a crime, they may stop you for further investigation. This is called probable cause and it is the third main way you may be stopped by law enforcement without a warrant. Probable cause is a higher standard of proof than reasonable suspicion and, therefore, requires additional evidence. However, because most traffic violations are easily verifiable, it is not uncommon for officers to stop you based upon this standard rather than under reasonable suspicion. For example, if an officer observes (and possibly records) you failing to use a turn signal 100 ft. prior to a turn, then he has probable cause to conduct a traffic stop. Is it possible for you to have been stopped without probable cause? Of course! An experienced criminal defense attorney in your local community can file a Motion to Suppress and fight the legality of the stop. This motion follows the same procedure as the one previously discussed for challenging reasonable suspicion, and just like before, the state only has to prove reasonable suspicion for a temporary detention. Probable cause is a higher standard of proof than reasonable suspicion and would require additional evidence for an arrest, but not for a stop (See our post on probable cause for arrest here). Can you be stopped for no violation at all? Yes. Even if you have not broken a single traffic violation or engaged in suspicious behavior, you may be still be stopped for an outstanding warrant. STOPS WITH A WARRANT: If there is a warrant out for your arrest, you may be legally detained and arrested at any point, whether you are driving in your car or walking around outside. When driving, officers may run the license plate of any vehicle you are operating to check for outstanding warrants. If their in-car system returns with a hit on your license plate, they will confirm the warrant with police dispatch. In fact, if there is an outstanding warrant for the registered driver of that vehicle, and you, as the driver, resemble the description, you may be stopped whether you have an outstanding warrant or not. Being stopped for an outstanding warrant does not necessarily mean you will be immediately arrested. Once legally detained, an officer may engage in any investigation to develop probable cause for any criminal offense he or she has suspicion you have committed. Because suspects of Driving While Intoxicated cases are generally stopped while operating a motor vehicle, it is rare for an outstanding warrant to come into play. However, if you have already parked and exited your vehicle, police may use any outstanding warrants to detain you and investigate for signs of intoxication. 11

12 CHAPTER FOUR HOW MUCH PROOF DOES THE STATE NEED BEFORE AN ARREST? If you were legally, temporarily detained, an officer may immediately begin an investigation into any criminal offense he or she suspects you have committed. This investigation is leading to one of two things, your release or your arrest. In order to place you under arrest for a criminal offense in the State of Texas, an officer must develop probable cause. Proof Beyond a Reasonable Doubt Probable Cause Reasonable Suspicion Voluntary Encaunter WHAT IS PROBABLE CAUSE? Probable Cause is developed when an officer s logical investigation discovers facts that would lead a reasonably intelligent and prudent person to believe you have committed a crime. For example, if you are under investigation for Driving While Intoxicated, the officer s probable cause may include the following: admission to using alcohol or drugs, slurred speech, bloodshot/red/watered eyes, unsteady balance or walk, slow responses and performance on the Standardized Field Sobriety Tests. While an officer is developing probable cause to arrest you, he or she is free to ask you incriminating questions without reading your Miranda Warnings. These warnings, just like on TV, inform you have the right to remain silent, anything you say or do may be used against you in the court of law, you have the right to an attorney, if you cannot afford an attorney one will be provided for you, and you have the right to stop this interview at anytime. However, you are not entitled to these warnings or the rights contained therein until you are place in custody consistent with an arrest. WAS YOUR ARREST ILLEGAL? Is it possible for you to be illegally arrested? Of course! An experienced criminal defense attorney in your local community can file a Motion to Suppress and fight the legality of your arrest. The Motion to Suppress follows the same procedure as one challenging the legality of your stop, but instead of the state proving reasonable suspicion, they must now prove probable cause. Probable cause is a higher standard of proof than reasonable suspicion and, therefore, requires additional evidence. 12

13 CHAPTER FIVE CAN YOUR CASE BE DISMISSED? An experienced defense attorney will be able to explore every possible avenue for a dismissal. These might include the following: A negotiated dismissal. Prevailing on a motion to suppress the stop. Prevailing on a motion to suppress the arrest. Prevailing on a motion to suppress the search. A diversion program. AM I ELIGIBLE FOR A DIVERSION PROGRAM? Tarrant County has a number of diversion programs that might result in the dismissal of your case. A knowledgeable Fort Worth criminal defense attorney will be able to talk to you about your eligibility into these programs. We have listed several options to help you determine your eligibility: Tarrant County Deferred Prosecution Program (DPP) Tarrant County Drug Diversion Program (DIRECT) Tarrant County Mental Health Diversion Program Tarrant County Reaching Independence Through Self Empowerment (RISE) Tarrant County Veterans Court Diversion Program NOT ALL DISMISSALS ARE CREATED EQUAL Dismissals can mean a variety of different things. Some are eligible for expunctions and non-disclosures while others are not. It is important to hire a criminal defense attorney who understands the implications of each option. Here is a list of the types of dismissals available in Tarrant County: DM02: The defendant was conviction of another office DM03: The complaining witness has requested dismissal DM04: The case has been refilled/reindicted as Cause No. DM05: The defendant has never been apprehended DM06: The defendant is deceased DM08: Other. Specify: DM10: The defendant has been placed in the deferred prosecution program DM14: Prosecutorial discretion 13

14 CONCLUSION WHO WE ARE Varghese, Summerset & Smith, PLLC is more than a Fort Worth, Texas, law firm providing citizens accused with representation in state and federal criminal cases. We are more than attorneys with three decades of criminal experience who have tried over 300 jury trials. We are a team of lawyers who understand a criminal accusation has become the single most important issue in your life. We understand the stress a criminal charge will have on you and your family, and we constantly seek to calm this anxiety by providing you with access to desperately needed information. Our experience allows us to provide you with an honest evaluation of the facts surrounding your encounter with the police. And only an honest evaluation of your case will help you determine the best outcome; it could be a dismissal, it could be negotiating with a prosecutor to reduce your case to a lesser charge, it could be pleading your case to minimal punishment, or even going to trial and requiring the state to prove their case to a jury. As your problems become ours, trust us to carry the burden. 14

15 APPENDIX ONE DEFENSE ATTORNEY INTERVIEW CHECKLIST ROUTINE QUESTIONS: Experienced in your jurisdiction? Number of cases handled: Number of jury trials: Online client portal for 24/7 access to case information? Positive Online Reviews (Google Places, Avvo, Yellow Pages) Professional Memberships Will the attorney you met with be the one handling your case? How will you be able to reach your attorney? Office phone number Cell phone number Client portal Did the attorney give you a fair assessment of your case and what to expect? THE QUESTION: Did the attorney listen to your needs and take time to understand your expectations? Notes: 15

16