Criminal Law and Evidence
Southern California Criminal Defense Lawyer
If you or someone you know has been arrested recently, you no doubt have lots of questions regarding your rights and laws regarding evidence. Here at the Law Offices of Michael L. Guisti, our experienced Southern California criminal defense attorneys have been helping clients for over a decade to understand the workings of the criminal justice process. Here are some common questions asked by our clients.
Orange County Criminal Defense Attorneys
Q: What's the difference between being arrested and being detained?
Q: I've been arrested, when do I get to make my call?
Q: I wasn't read my Miranda rights. Does that mean all charges will be dropped?
Q: If I don't want to say anything after being arrested I'm within my rights, correct?
Q: I was arrested by an officer didn't have a warrant to arrest me. Can he do that?
Q: Why do some people have to post bond to get out of jail and others don't?
Q: Can a police officer search me, my car and my home whenever and wherever he wants?
Q: Can you sue the police department for false arrest and wrongful imprisonment?
Q: Doesn't the Fourth Amendment protect me from being searched?
What's the difference between being arrested and being detained?
Arrested" means you have been taken into custody and can't leave. You can be detained for a short period of time if a police officer or other person believes you may be involved in a crime.
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I've been arrested, when do I get to make my call?
After being "booked," you'll be able to make local phone calls, generally up to three. "Booking" includes your arrest being written into official police records, being fingerprinted and photographed.
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After I was arrested, I was allowed to make some calls but I didn't get through. Aren't I allowed more calls ?
Yes, you're generally allowed to complete calls. While the number of calls allowed may vary from place to place, the average number is three.
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What are Miranda rights?
- You have the right to remain silent
- Anything you say can and will be used against you in a court of law
- You have a right to have a lawyer present while you are questioned
- If you cannot afford a lawyer, one will be appointed for you
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I wasn't read my Miranda rights. Does that mean all charges will be dropped?
If these warnings weren't provided to you before you were questioned, the information you provided may not be used against you. However, this doesn't mean the case will be dropped, only that the authorities will need to proceed with the case, should they choose to, without using the statements you made. If you voluntarily gave information without being questioned, that information may still be used.
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If I don't want to say anything after being arrested I'm within my rights, correct?
If you've been arrested, you need only say, "I want to speak with an attorney" or "I have nothing to say now." You don't have to say anything after that.
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I was arrested by an an officer who didn't have a warrant to arrest me . Can he do that?
If you are at home when the officer came to arrest you, then a warrant is usually required. Otherwise, an arrest warrant is not usually required. The exception is if the officer is concerned that you might flee, destroy any potential evidence or harm others, in which case he can arrest you at home even without a warrant.
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An officer called and asked me to come to the police station to answer some questions about a recent incident at the shopping mall. I showed up and answered their questions, and they let me go . Is this put on my record as an arrest?
Unless charges were filed against you and you were booked, it will not show up. Nevertheless, you could still be arrested sometime down the line, if the police think that there is enough evidence to file charges.
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Why do some people have to post bond to get out of jail and others don't?
- The type and seriousness of the charges
- Any prior failures to appear
- Previous criminal record
- Connections to the community
- The probability that you'll appear in court
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My friend was recently arrested. He was told that he needs to appear for an arraignment as well as a preliminary hearing . I thought these were the same thing. Also, when will my friend be released from jail?
An arraignment and a preliminary hearing are not the same. The arraignment is where your friend appears before a judge who tells him of the crimes with which he is charged. Also, bail will be set at the arraignment, or if bail was previously established, the bail amount may be reduced. Another possibility is that your friend may be released on his own recognizance. If he is being charged with a misdemeanor, he may be asked if he wants to enter a plea at this time, as well. If your friend needs representation by an attorney and meets the court's guidelines, he may be assigned to be represented by a public defender.
The purpose of the preliminary meeting is for the judge to determine if there is enough evidence to proceed to trial. The district attorney must present evidence indicating that a crime was committed, and that your friend is the likely culprit. If the judge rules that there is enough evidence, then the case will be set for trial.
Whether or not the defendant can meet bail
- The crime with which he is charged
- The bail amount
- Whether your friend can post bail
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Can a police officer search me, my car and my home whenever and wherever he wants?
A search is always possible with the permission of the individual or with a search warrant. With a search warrant, the office can proceed without the permission of the individual. But you can ask to see the warrant prior to the start of the search. Before a search warrant may be issued, there must be a showing of probable cause.
Body Searches
If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods.
Car searches
Police can search your car and trunk without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason-such as a broken taillight-they can take any illegal goods in plain sight.
Home searches
Certain emergency circumstances such as the potential destruction of evidence will allow an officer to search your home without your consent. If you're arrested at your home without a search warrant, only the area where you are located can be searched. Anything illegal in plain view can be taken.
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Can you sue the police department for false arrest and wrongful imprisonment?
An officer who detains an individual without just cause, depriving an individual of his or her freedom without sufficient reason or authority, he can potentially be sued along with the police department.
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Evidence was taken from my home without a search warrant. Isn't this illegal? Will the case against me be dismissed?
Possibly. If a judge decides the evidence was gathered improperly, it may not be allowed into evidence. However, the district attorney or prosecutor may still be able to prosecute the case even without the evidence.
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Doesn't the Fourth Amendment protect me from being searched?
No. The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states, "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." To determine what might be unreasonable, a "legitimate expectation of privacy" must be established.
These are just a few of the questions you may have regarding criminal law and evidence. If you have further questions, please do not hesitate to call us at (714) 530-9690 and speak to one of our Southern California Criminal Defense Attorneys.
