Can A Police Officer Arrest Me Without Evidence

 Can A Police Officer Arrest Me Without Evidence?

A determination needs to be made by a police officer that there is probable cause in order to make an arrest.  Probable (or reasonable) cause for an arrest exists when the facts are sufficient to cause a fair minded person of average intelligence to believe that the Defendant committed the alleged crime.  If the police officer makes a probable cause determination, one of several things can happen:

1)  The police officer can make an arrest if a misdemeanor or felony is committed in a police officer’s presence, or when a police officer has probable (or reasonable) cause to believe a misdemeanor or felony was committed and probable (or reasonable) cause to believe that the Defendant committed the offense.

2)  For minor offenses such as local ordinances, the police officer can issue an appearance ticket which provides instructions as to how and where to address the criminal allegation.  If an appearance ticket is issued, the Defendant is not arrested unless he or she fails to go to Court by or on the date set.

3)  In some instances there is a delay in determining probable cause because the investigation is still ongoing.  In some instances there is a delay based upon the need to interview other witnesses.  Sometimes there is a necessity to gather and test forensic evidence (such as DNA analysis, drug analysis, fingerprint analysis, ballistic testing, blood testing, handwriting analysis, etc.) before a probable cause decision can be made.  During some investigations, there is a need to obtain records (such as medical records, telephone records, business records) to determine if there is probable cause to believe a crime occurred.  There are instances in which an expert needs to be consulted to make the proper determination (for example, in child abuse cases a specially trained doctor may need to see records and evidence to determine if an injury is consistent with intentional abuse).  Usually a police report is written in connection with the investigation.  Once the investigation concludes a police officer or detective speaks with a prosecutor, attorney general, or city attorney and submits the information that they have concerning the allegation.  If the prosecutor, attorney general, or city attorney determines that there is probable cause to believe a particular individual committed a particular offense, paperwork is prepared to be submitted to the District Court with jurisdiction over the case.  The prosecutor, attorney general, or city attorney also has the option to deny the warrant if the evidence is not sufficient or the complaining witness is not credible.   The police officer or detective is sometimes directed by the prosecutor, attorney general, or city attorney to make a further investigation in order to make a proper probable cause determination.

When is an arrest warrant issued?  The purpose for an arrest warrant is to bring a particular Defendant before a Court concerning an accusation. The accusation is contained in a document called a complaint. The complaint is a formal court document which recites the charge, possible penalty, and sometimes contains factual allegations. An arrest warrant is required whenever a misdemeanor or felony occurs outside the presence of a police officer (there are a few exceptions, such as Operating While Intoxicated offenses and domestic violence offenses).  

Typically, the Court receives a complaint and warrant request from a police officer or detective.  The Court usually has the police officer or detective offer under oath a factual basis as to what occurred.  The police officer or detective must have either personal knowledge or disclose the source of their belief.  When the belief is based upon information from other people, the informant's credibility must be shown as well.  Some Courts also require an affidavit to be submitted in support of the complaint that is filed. 

Instances in which an Arrest Warrant is not necessary:

1)  A police officer may issue a citation or an appearance ticket to a person who is arrested without a warrant for misdemeanor or local ordinance offense that does not exceed 93 days of possible incarceration, a fine, or both.

2) When a felony is committed in a police officer’s presence or when a police officer has probable (or reasonable) cause to believe a misdemeanor or felony was committed and probable (or reasonable) cause to believe that the Defendant committed the offense.    The probable (or reasonable) cause determination can be based on hearsay evidence. 

3) An arrest warrant is not needed if the person accused has already been arrested without a warrant for a felony or a misdemeanor.  The complaint, in this instance, shall constitute both the complaint and warrant when the District Court Judge or Magistrate endorses upon the complaint a finding of probable cause and a direction to take the accused before a District Court Judge or Magistrate.

4) A private citizen may file a complaint for a felony or a misdemeanor charge when a prosecutor has not authorized the complaint and when security for costs is filed with the Court.  The amount of security should accurately reflect the likely expenses of the prosecution.

The District Court Judge or Magistrate only has the power to issue arrest warrants for an offense that has a maximum punishment of 92 days or less in jail.  Otherwise, the Prosecutor, City Attorney, or DNR officer must submit a written order to the District Court Judge or Magistrate that authorizes the issuance of the arrest warrant upon a finding of probable cause.  The District Court Judge is free to issue bench warrants for persons who do not appear concerning civil infractions, subpoenas, criminal offenses, and for failure to abide by Court orders.  A Magistrate can petition a District Court Judge to issue a bench warrant.
If the arrest warrant is signed by the District Court Judge or Magistrate, the Court is authorized to specify on the warrant an interim bail that may be posted.  The interim bond is usually posted at the time the Defendant is booked at the jail, if he or she is able.  A police officer or detective does not have the power to adjust a bond or interim bond - however the police officer or detective can make suggestions to the District Court Judge or Magistrate as to adjusting or setting a bond amount.
The police officer or detective assigned to the case has a few options once an arrest warrant is signed by a District Court Judge or Magistrate:
1) When the Defendant has legal representation, oftentimes arrangements can be made to have the Defendant turn himself or herself in on a particular date to address the matter.
2)  If the Defendant is not represented, sometimes the police officer or detective will contact the Defendant directly. or by letter, to inform him or her of the charge or charges.  Arrangements are made for the Defendant to turn himself or herself into the police in order to face the charge or charges.
3)  The police have the option to arrest the Defendant at home, at work, or anyplace else so the judicial process can commence.  Once in custody, the Defendant is arraigned within a few days on the charge or charges.
Usually prior to arraignment, the Defendant is booked and photographed at the arresting police agency.  This information is often entered into a LEIN system to record the event and charge or charges. 
At the arraignment on the charge, when the Defendant either submits himself or herself to the Court or appears after an arrest, the District Court Judge reads the charge or charges from the complaint to the Defendant with the possible penalty.  A plea is entered either by or on behalf of the Defendant by the Court, and a determination as to the amount of bond is made (even if the Court has already set an interim bond).

The first person, and probably only, person you should speak to if a criminal allegation is made against you is an experienced criminal defense attorney, such as the lawyers at Hilf & Hilf, PLC, in a private location. Statements made to a lawyer in private by a client or potential client are confidential communications that cannot be disclosed without that person’s consent. It is sometimes critical to hire an experienced criminal defense attorney before any charges occur to try and dissuade a prosecution or to try and influence charging decisions. An experienced criminal defense attorney can intercede on your behalf and speak with detectives and prosecutors.   An experienced criminal defense lawyer can plan a strategy for your defense, and help you to decide what – if any – information should be provided to law enforcement concerning an investigation. Hiring an experienced criminal defense lawyer often prevents situations where a suspect is arrested without warning from home or work. An experienced criminal defense lawyer can help an individual obtain a reasonable bond. An experienced criminal defense lawyer can help an individual obtain an acquittal, or the best possible resolution, concerning a criminal charge or charges.


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Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.
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