First step in the criminal court process – a guide
During a criminal investigation, how can you protect yourself? And when do you need a police investigation attorney? What are the steps in the criminal investigation process? Here is our guide to the first step in the criminal court process.
It begins
Someone reports a suspicion of a crime to police. They respond to investigate. Quite often, there is a call to emergency services — a 911 call — typically recorded.
Sometimes, law enforcement officers directly observe something they suspect may be a violation of law.
Initial Contact
Police officers may initiate what courts call a “Fourth Amendment Seizure.”
Or they simply call it a “stop.” (But it does not matter whether the citizen is already stopped.) The key ingredients are:
- The police officer asserts governmental authority delegated by law; and
- the person detained is not free to leave — the government impairs their Liberty. Leaving when on reasonable notice police are ordering a stop or detention, is a crime, Fleeing Police. So there is a bright line separating a police ordered stop or not. Just ask, “Officer, am I free leave now?” to force the issue at any given moment.
A Fourth Amendment Seizure is illegal unless the police officer can cite Reasonable Articulable Suspicion of criminal activity; or an observed violation of law (e.g. a traffic law).
Police may video record the stop and what follows.
If a stop is illegal, the court will suppress any evidence obtained as a result of it; not allow the prosecutor to use it.
Even if the initial reason for the stop was legit; the scope or length of the Fourth Amendment seizure may be illegal. Because police must have additional facts to justify the expanded or prolonged detention. Tic Tock!
When should you get a police investigation attorney? Sometimes a person is aware of a risk of a police investigation before there is one. Other times the person is unaware until police reveal that the person is a target. In either case, that is the time to consider hiring a police investigation attorney.
Statements & Your Police Investigation Attorney
The most important evidence obtained by law enforcement officers after a contact, is what courts call statements. Other terms that mean the same thing include: confessions, admissions.
When prosecutors charge a person, they will use out of court statements which would otherwise be inadmissible hearsay. But an exception to the rule against hearsay allows them to use the accused’s “Admissions.” A person does not have to talk to police at all. And if a person does talk to police, they can stop talking at any point they choose. This is a fundamental, constitutional right.
In addition, police must provide a warning to a person arrested or in custody, about their Constitutional rights. The most important of these are the rights to silence and to consult a lawyer before answering questions. If police violate the requirements of the Miranda decision, the resulting statements can be suppressed from the trial.
If police want to ask questions or take a statement, you should get a police investigation attorney involved.
Searches
Another category important evidence obtained by police after a seizure is evidence from a search.
The scope and depth of the search allowed under the limited delegation of governmental authority in the Minnesota and U.S. Constitutions depends upon the circumstances. For example during what we sometimes term a Terry stop, the law may limit police to a pat-down search for weapons.
During a traffic stop, when police conduct a probable cause search, the nature of the probable-cause facts limit the search.
During the execution of a Search Warrant on a home, the judge’s warrant limits the scope of the search.
Police may not lawfully search unless they have a Search Warrant or an exception to the Constitution’s Warrant Requirement.
One of the most important exceptions is “Consent.” People should avoid giving consent to any search. It’s a good idea to make it unambiguous and clear, “Officer, I do not consent to any searches.”
When in doubt, be clear that you:
- do not consent to any searches, and
- want to consult your police investigation attorney
Right to Counsel > Police Investigation Attorney
Your right to counsel is yours to assert at any time.
You do not need to wait until arrested. You don’t need to wait for a Miranda Warning. But if you do hear one, take the hint and remain silent until after consulting a lawyer. The most important triggers to assert your right to counsel are police requests for information or for consent to search. These are alarms signalling that it’s time to consult a police investigation attorney.
Keep in mind that a statement to police can always be made at a later, after consulting your lawyer.
Similarly, if consenting to a search were ever a good idea, it can wait until after you consult your lawyer. If you feel pressured, that is your reminder. Say, “no thank you Officer, I don’t consent to a search or say anything until I talk to my lawyer. I want to assert my 5th and 6th Amendment Rights.” Repeat often.
If you have a police investigation attorney retained, he may have an opportunity to observe the criminal investigation. Or, he may be able to get a defense investigator to help with it.
Arrest
Sometimes police may assert legal authority to detain a person beyond a brief investigatory stop (a prolonged detention); or to arrest.
Whether an arrest is legal or not depends upon the facts as well as Constitutional and statutory law.
If illegal, a judge may suppress evidence collected as a result of an unlawful arrest.
An arrest is an important step reminding you to protect your rights:
- remain silent
- clearly state that you don’t consent to any search
- repeatedly assert your right to a police investigation attorney
Jail
Police may take an arrested person to jail and book them in. “Booking” is an informal term referring to the arresting officer or a jailer collecting identification information, including fingerprints and photographs.
Upon intake into the jail, jailers conduct a more thorough search. The word “jail” means a place of short-term detention, normally pre-trial detention.
Sometimes investigating police officers will seek to interview the target in jail. If police want to talk you in jail, this is a reminder. Remain silent. Say nothing except you want your police investigation attorney present during questioning.
You may be interested in our article: Get Out of Jail After Arrest – Tips for Getting Your Loved One Out
When do police stop investigating?
To understand the answer to that question, we need to understand the problems of police management. Police cannot possibly investigate all reports of suspected criminal activity, with available resources. Time and money limit what police can do – just like the rest of us.
Police need to manage their resources well, to focus on the highest impact investigation activities. Two factors are important when managing available time and money:
- Highest perceived impacts on public safety
- Probability of developing a provable case
All three branches of government set public policy priorities for law enforcement. Government sets priorities in legislation, in executive branch discretion, and in prosecutor discretion. To an extent though, police agencies can set priorities for enforcement.
Can police develop a provable case through investigation? This is the primary mission of law enforcement agencies.
So, how does that help us understand how long a police investigation lasts?
The police investigation will last longer for a more serious suspected crime; and for one with good prospects for developing a provable case.
On the defense side, we generally can’t do anything about the nature of the suspected crime. Typically, it’s in the past.
What we can do on the defense side is stop providing additional evidence to police. This is the most important thing a police investigation attorney like Thomas Gallagher does to protect his client.
Police Investigation Attorney Thomas Gallagher
Which criminal investigation attorney should you choose? Thomas Gallagher is a Minneapolis Criminal Lawyer with more than thirty years experience in police investigations. He’s studies police criminal investigation techniques, as well as forensic science. Gallagher has represented police officers. And the many Continuing Legal Education (CLE) classes Attorney Thomas Gallagher has taught include POST-approved courses taught to police officers.
When clients hire Thomas Gallagher for legal counsel about a police criminal investigation; we call that pre-charge counsel.
The next page about stages in the criminal court process is pre-charge & witness lawyer retainer.