ARRESTED? THIS IS WHAT YOU NEED TO KNOW.

ARRESTED?

THIS IS WHAT

YOU NEED TO

KNOW.

A guide to arrests and choosing the right criminal defense attorney.

BONUS: Find out if your case can be dismissed.

TABLE OF CONTENTS

CHAPTER ONE: Ten things to know if you are arrested ... 3

CHAPTER TWO: Can the police question you without reading your rights? ... 5

CHAPTER THREE: What can the police stop you for? ... 8

CHAPTER FOUR: How much proof do the police need for an arrest? ... 13

CHAPTER FIVE: Can my case be dismissed? ... 15

CONCLUSION: Who we are: ... 16

CHAPTER ONE

TEN THINGS YOU SHOULD KNOW IF YOU ARE ARRESTED

1. Do not talk to the police without an attorney. This is the

single-most important thing to remember when you are being accused of any offense, especially offenses of a sexual nature. Most people do not realize the police are allowed to lie to you. They can tell you anything to elicit a response. Do not respond to their questions. Do not provide them with any information other than your name and date of birth.

2. Immediately contact an attorney. Your attorney will be able to guide you through what you should do and whether you should talk to the police. Do not consider entering a plea of guilty until you have talked to an attorney. For felony offenses, the case must be presented to the grand jury before the case makes it to a felony court. In some cases, moving quickly and working the case pre-indictment may obtain a favorable outcome. An experienced defense attorney may be able to obtain a No-Bill from the grand jury before the case ever gets to a felony court. The sooner an attorney is working on your case, the more he or she will be able to do for you.

3. You may be able to avoid a conviction. Even if you are guilty of the offense, there may be ways to get the case dismissed, no-billed, reduced or deferred.

4. Jail phone calls are recorded. Jail phone calls are recorded and 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.

5. Do not volunteer information during a search. An officer will be able to search your person when he is arresting. If he has probable cause to search a location, the officer may lawfully conduct a search. Do not give them consent to search other locations. If they are conducting a search, do not react. Do not respond or make any statements regarding anything they find.

6. Determine how and when to be released from jail. On federal offenses and juvenile offenses, an attorney will be able to walk you through release, if release is available, prior

Past Supreme Court Justice Robert Jackson once said, “Any lawyer worth salt will tell the suspect in no uncertain terms to make no statements to the police under any

to the resolution of the criminal charges against you. On an adult case at the state level, before you consider bonding out of jail, talk to your attorney about what the best course of action is on your case. Potential outcomes on your case may vary based on whether you are in custody or out of custody. Under certain circumstances, you may need a bondsperson. In Texas, you should generally be able to bond someone out by paying a bondsperson around 10% of the bond amount. You may also put up a cash bond for the entire amount.

7. Choose the right attorney. It is critically important to choose the right attorney. You will want someone who has experience handling cases like yours. Ask if the attorney you are hiring has experience trying cases to juries in the county your case is set in. Check Appendix One for a checklist of things to consider before hiring a criminal defense attorney.

8. Remember that the police are allowed to lie to you. For example, the police could tell a murder suspect they found a body, when they have not, just to see what the suspect will say. Or consider a driving while intoxicated suspect to whom an officer says, I know you’ve had more than a “couple.” Once again, remember not to provide any statements to the police, without first talking to an attorney.

9. Court-Appointed attorneys are not free: The judge may require that you pay attorney fee as a condition of being out on bond, or if you get probation, as a condition of 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’re paying for. As a result, think twice before asking the court to consider appointing an attorney on your behalf.

10. You do not have to submit to testing. You are not required to provide a specimen of your blood or breath or do field sobriety tests, although an officer may obtain a warrant to obtain your blood.

CHAPTER TWO

CAN THE POLICE QUESTION ME WITHOUT READING MY 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 post-arrest. 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:

You have the right to remain silent.

Anything you do or say 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. You have the right to terminate this interview at any time.

MIRANDA RIGHTS ONLY APPLY DURING CUSTODIAL INTERROGATION Police officers are only required to read your Miranda rights before a custodial interrogation. For every moment up to moment you are in custody, police questioning is fair game. Where are you coming from? Where have you been? Have you been drinking anything tonight? Is that marihuana I smell? Do you have anything any 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, we 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 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? Address? Social security number? Will you provide a specimen of your breath or 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 38.22 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.

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.

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 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.

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 you 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 offense

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 50mph 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.

Once you have been legally detained an officer can request several things of you. First they can ask a serious 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.

Is it possible for your temporarily 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.

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 that 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 have already parked and exited your vehicle, police may use an outstanding warrants to detain you and investigate for signs of intoxication.

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 suspect you have committed a crime. 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.

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, 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.

CHAPTER FIVE

CAN YOUR CASE BE DISMISSED?

IS IT POSSIBLE FOR YOUR CASE TO BE DISMISSED?

An experienced defense attorney will be able to explore every possible avenue for

a dismissal. These might include:

• 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.

• Diversion programs.

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.

• 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

CONCLUSION

WHO WE ARE

Varghese & Smith, PLLC is a Fort Worth, Texas law firm providing citizens accused with representation in state and federal criminal cases. Benson Varghese is a former Tarrant County prosecutor who cofounded Varghese & Smith, PLLC. With over 100 jury trials and 5,000 criminal cases under our belt, we have the experience to handle any criminal case. We primarily handle cases in Tarrant County, although we occasionally take cases in Dallas County, Johnson County, Collin County, and Denton County.

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.

Benson Varghese was named a Top Lawyer by Fort Worth, Texas magazine in 2011. He was also named a Top 100 Trial Attorney by the National Trial Lawyers Association in 2014. Education:

Bachelor of Business Administration, Southern Methodist University

Juris Doctorate, Texas Tech University Professional Memberships:

• College of the State Bar of Texas, Member

• Eldon B. Mahon Inns of Court, Associate Member

• Tarrant County Young Lawyers Association, Past Board Member

• Christian Trial Lawyers

Association, Lifetime Member • National Criminal Defense Lawyers

Association, Member.

• Texas Criminal Defense Lawyers Association, Member.

• Tarrant County Criminal Defense Lawyers Association, Member. • Texas District and County Attorneys

APPENDIX ONE

DEFENSE ATTORNEY INTERVIEW CHECKLIST

☐ 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 _______________________

☐ Financing Available?

☐ 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 ☐ Email

☐ Client portal

☐ Did the attorney give you a fair assessment of your case and what to expect?