This is Dennis Boren, criminal defense attorney, and former felony prosecutor. This post will help you understand the process from arrest to prosecution.
Arrest to Prosecution
There’s a particular process that police and prosecutors are legally mandated to follow when completing an arrest and prosecution.
Hopefully, you never need to know this information for yourself, but if you do end up in a situation, it will be very helpful to have a little bit of an idea of what’s going on. It would also be good to know about this if someone you know, a friend, family member, or loved one, gets in some trouble.
First, the police can’t take you into custody without a warrant… most of the time. As with every rule, there are some exceptions. There are warrant arrests and warrantless arrests.
A warrant arrest is when a case has been taken to a prosecutor and the prosecutor has accepted the charges. When a prosecutor accepts charges, they file a criminal complaint.
Probable cause is a legal term meaning law enforcement has reasonable grounds to make a search or press a charge.
Usually, it’s a police officer saying that they know who committed the offence and presenting their evidence that suggests they have reasonable grounds to believe what they are saying to be true and correct.
That way, a prosecutor just can’t go up and file charges against somebody anytime they want. There’s somebody with enough knowledge making a report that can lead to probable cause and to a warrant.
Serving a Warrant
When there is a warrant, law enforcement can serve that warrant, but they might not serve the warrant.
Serving the warrant means they’ll go look in every place they know to try and find the accused. They’ll search, family, mom, dad, uncle, brother, sister, girlfriend, workplace, known associates. Any place they know you might be, they’ll search. Very often, this is what happens
Sometimes though, law enforcement does not serve a warrant. That just means they don’t go out looking for the accused actively.
Arrest Based on Warrant
There also is an arrest based on warrant, very often based on interactions like a traffic stop. When you get stopped or you see somebody stopped, the officer comes up and they ask for the driver’s license. Then he or she goes back to the cruiser and you see them on the radio. What they are doing is calling in the dispatcher to look up on the computer system to see whether or not there is a warrant for the driver.
They can make an arrest based off that warrant, even if the traffic stop was for something as pedestrian as a taillight.
Now on to warrantless arrest. There are some exceptions to this, but generally speaking, if an officer witnesses a crime occurring, they don’t have to wait to arrest. They don’t have to run to a court and get a prosecutor first to file a complaint, and the judge would issue what’s called a bench warrant. They can arrest somebody on the spot, so long as they witnessed a criminal action or have probable cause to believe the person they are arresting has committed a criminal act.
Now, a lot of people will say, particularly if that happens, that, “I’ve been charged with burglary of habitation,” because the officer saw the person coming out of the place they didn’t have permission to be in. Somebody called and said, “Hey, I saw somebody go in this structure.” They go in and either find them or see them coming out. They can arrest that person. And they’ll say, “The police have charged me with burglary of habitation.” Well, technically that’s not right. You’re being arrested really on the suspicion of burglary of habitation. But you still go to jail.
When you need a lawyer
At this point, upon your arrest for suspicion of some felony or misdemeanor, is when you should definitely get a lawyer, because the system gets tricky and you can get, what’s called magistrated and it will usually happen within 24 hours.
Getting magistrated means that a low level judge, in Texas this could be a Justice of the Peace, is going to tell you what you’ve been arrested for. They can’t really arraign you because you’re not been charged with anything. So this is not an arraignment, that’s not until after you’re charged and you’re told what you’re charged with.
They (the Justice of the Peace) are going to set a bond at that point. Typically, the bond is going to be ridiculous. Not always, but often it seems like the bond number they come up with is pulled out of their… let’s just say they use an Ouija board or roll the dice. Or they’re going to look at a recommendation made by the prosecutor’s office, which is often ridiculously high, unfair, and isn’t grounded in any sort of reality.
It’s at this stage you’re going to want to get an attorney involved in order to make the bond a reasonable amount that you can actually pay.
The attorney will file a writ of habena corpus or an application for writ, so they can get in front of the district judge. At this point the attorney can argue your case and get your bond reduced to a more reasonable level. Sometimes bonds for minor level felonies can be as high as 50 000 dollars and your attorney can reduce them to 5000. That’s a dramatic reduction, from an amount that could be impossible to pay for many people to something manageable.
Get it on the Record
We always recommend that if you have any interaction with a police officer, get a record of it. Just turn on your video, or at least your audio app on your phone, and document it. It will save you a lot of grief. Hope this was helpful.