Frequently Asked Questions
- What is a search warrant?
- What is needed to obtain a search warrant?
- To conduct a search, must the police always have a warrant?
- 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?
- If a police officer or federal agent arrests you and wants you to give a statement, what should you do?
- If you are ordered to go to the court or police station for “booking,” what does this mean?
- How does bail work?
- What is arraignment?
- Who prosecutes white collar crimes?
- What determines whether a prosecutor will pursue a case?
- What are the federal guidelines on sentencing?
- What is restitution?
- What is a plea bargain?
1.What is a search warrant?
A search warrant is a document 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 on probable cause of criminal activity and names the owner of the property. 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 are challengeable in court.
2. What is needed to obtain a search warrant?
The authorities must convince a judge that there is probable cause for a search based on the likelihood of a crime having taken place or that items connected with a crime will probably be found in a specified location on the property. Information corroborating a search usually comes from observations of the police or some other authority, such as a government agent, or from a trustworthy informant.
3. To conduct a search, must the police alwayshave a warrant?
There are situations in which the police or authorities do not need to have a search warrant:
- Search after arrest – Once placed under arrest, you and your immediate area may be searched for weapons.
- Searches based on public safety – If there is a reasonable fear that the public is in danger, authorities may be justified in entering the grounds for search.
- Searches to prevent destruction of evidence – A search without warrant is allowed if authorities have observed illegal items such as weapons or contraband and have good reason to believe the items will disappear if a thorough search is not immediately conducted.
- Consensual searches – If you agree to allow the police or authorities to search your car, home, purse, briefcase or other property, the search is consensual, not requiring a warrant. Often the person may be detained and told a warrant is being procured. Deciding that search is inevitable, the person consents to the search.
- Searches based on hot pursuit – When police or authorities believe criminals may be fleeing the scene of a crime, they may enter the premises to search for criminals.
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?
You should immediately contact your lawyer. Police or authorities are not required by law to tell you the truth during an investigation. They may say they have evidence against you that they don’t yet have. The intent may be to arrest you, trap you into making statements or divulging information that could incriminate you. Your attorney can inquire to find out about the investigation and 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 and 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 would be better to explain your innocence; however, what you should do is ask to speak to your 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 that you committed a crime. The authorities may threaten, play on your sympathies, try to make you feel guilty and use any number of tactics to get you to say what they want to hear. After you say you want to speak to your lawyer, 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 the criminal justice system database. Generally, you will go into a holding cell after booking until bond is arranged.
7. How does bail work?
Bail is a bond that is posted for your release from jail and is money or property given as assurance that you will appear in court at the appointed date. The bail amount set is usually based on the circumstances and seriousness of the alleged crime. 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 you appear in court the cash is returned or bond on property (a lien on property as collateral) is no longer in force. The percentage paid to a bondsman (usually 10%), however, is not returned.
8. What is arraignment?
An arraignment is the act of calling a person before the court to answer a charge or complaint brought against him or her. At this point the defendant would usually plead guilty or not guilty.
9. Who prosecutes white collar crime cases?
White crimes are prosecuted by state and federal courts. Many white collar cases involve lengthy investigations that are conducted in more than one state or internationally and because of the widespread investigation lend better to federal prosecution. Federal agencies such as the IRS, FBI, or DEA will bring suit, and prosecution of such federal cases is generally led by an Assistant United States Attorney (AUSA).
10. What determines whether a prosecutor will pursue a case?
A prosecutor will usually pursue a case based on the following:
- Legal soundness, 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 a pretrial diversion better suits policy objectives of the agency. (Pre-trial diversion is an alternative that diverts offenders into a probation program.)
11. What are the federal guidelines on sentencing?
United States Sentencing Guidelines were guidelines established in 1987 that were mandatory for judges to follow. Because of a 2005 Supreme Court ruling, these guidelines are now no longer mandatory, but are discretionary, which means judges do not have to adhere to the guidelines, but may consult and consider them.
12. What is restitution?
Restitution is monetary compensation given to a victim for costs of a crime. The federal Monetary Victims’ Restitution Act of 1996 allowed entitlement of restitution for losses to victims who suffered 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 on a guilty plea to a lesser charge, with less serious penalties. You are not required to accept a plea bargain, and if you refuse it, the prosecutor may withdraw the offer. As your lawyers we will help you to evaluate a plea offer against the prospects of trying the case.