Frequently Asked Questions
When subject to the criminal justice system, many QUESTIONS may arise, thoughts and consequences may riddle the mind and life may become overwhelming. It is an attorney's job to sit down in one's office and answer all these questions. Write whatever you may have, make an appointment, and we can discuss the procedural and legal questions you have whether you were arrested or were subject to questioning.
- What happens if I am arrested?
- Can they use force to arrest me?
- What is a search warrant?
- What is probable cause?
- If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
- What if I agree to the search?
- What is the Plain View doctrine?
- If I am arrested, can the officer search me?
- What is bail?
- What happens at a bail hearing?
- What happens at an arraignment?
What happens if I am arrested?
If you are arrested or being accused of violating the law, the case is taken before a judge or magistrate who may issue a warrant if necessary and set bond for appearance in court. If the defendant cannot post the bond he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with, told their 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. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.
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 and a sworn affidavit in support of same.
What is probable cause?
This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn't probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officers 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 the boy's 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.
What if I agree to the search?
If you voluntarily consent to a search of your home, automobile, or person, than the officer may conduct a full search without a warrant, depending upon the facts and surrounding circumstances. Anything that the officer finds may later be used against you in court or may be suppressed if it is determined to be an unlawful search.
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 any alleged violation of 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.
There are five possible results from the bail hearing:
- 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.
- 10% Option - This is payment of 10% of the bail imposed by the court.
- 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 after being arrested. You will appear before a judge who will tell you officially of the charges against you at your arraignment.
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.
Michael G. Paul and Associates are available 24 hours a day when you need them:
Please Call: 732-549-6543
or email us using the form in the left-hand column.
