Whether it is through firsthand experience or through a friend or family member, most Americans will come in contact with the criminal justice system some time in their life. If that contact happens to be in Texas, this is what you can expect.
Part I: The Arrest
You see red-and-blue flashing lights through your window. When the police kick your door in, there’s a small mountain of cocaine on the coffee table, there’s blood on your shirt, and you still have unpaid parking tickets. You’re going to jail. Here’s what you can expect in this oh-too relatable scenario.
The two main ways police encounters end with arrests are “They came and got you” or “They found something while talking to you”. The first is easiest to deal with and the most straightforward, but far less common. In the “They came and got you” scenario, the police showed up wherever you are with the intent of arresting you. There are a couple ways that this might have happened: one is that they suspect illegal activity is happening where you are, and they went to a judge with their suspicions (and some degree of proof) and obtained a search warrant. Another is that someone made an emergency call and the police responded. In either case, the advice is the same: stay calm, identify yourself on request, comply with the officer’s instructions, and above all, don’t say anything other than “I want to speak to an attorney”.
Just so we’re clear, if the police show up to search your place, or if someone called 911 and named you in the phone call, you are going to get arrested. Now you need stop talking and ask for an attorney. Even if you’re just a bystander, there’s a chance that the police will take an “arrest them all, let the lawyers sort it out” approach. In the moment, you will want to explain how this is all a misunderstanding, and that may be the case, but the police are not going to listen to that in the moment, so you’re better off just staying quiet and asking for an attorney.
A variation on this occurs when a warrant for arrest has been issued for a person, but the police are not going out of their way to track that person down. This is far more common than the police bursting through the door to arrest someone. The warrant is just out there until the police and the person under the warrant happen to bump into one another (usually, at a traffic stop). If you find out that you have a warrant for your arrest, the easiest solution is to go to your favorite bail bondsman or attorney and have them schedule a “walk through,” which is where the magistrate judge sets a bond while you’re out of jail, and you arrange to pay it (either personally or through a bondsman), then you just go to the jail with your attorney, fill out some paperwork, and leave. The exact process differs by county, so ask your attorney how long the process takes where you live.
Almost all police encounters that end in arrest fall into the “They found something while talking to you” category. These nearly always start with traffic stops, which means that the easiest way to avoid encountering the police is to obey traffic laws. If you do get pulled over, you must provide your driver’s license and proof of insurance on request. You are not obligated to answer any questions other than what is necessary to identify yourself. From there, the police might see something through your window while talking to you, or they will smell something like marijuana or alcohol on your breath. This is probably a good time to mention that the smell of marijuana smoke lingers in a car for weeks and no amount of air freshener gets that smell out, so if you smoke marijuana, maybe stop because it’s illegal, but definitely don’t smoke it in your car, because it’s basically an invitation to the police to search it.
What the police can and can’t do during one of these stops is complicated. They have to follow certain rules so that they do not violate your Constitutional rights. Here’s what you do when you feel the police are violating one of your constitutional rights during a traffic stop: say that you do not consent to any searches and that you want to speak with an attorney, then don’t say anything else. I have seen many videos of arrests in my practice, and I have seen many clients tell the police that they can’t do this or that, and my clients have occasionally been right but do you know what the police do when someone who may have committed a crime tells them to stop looking for evidence of a crime? They ignore you and keep looking. If the police did anything illegal during your stop, your attorney will address it later.
While I’m on the subject of when to not say anything, you should know that when a police officer asked you to step out of your car, it’s a foregone conclusion that you are going to jail, so save your breath for the two most important phrases: “I do not consent to the search of my vehicle or my person,” and “I want to speak with an attorney.”
Once you’re in jail, you should be brought before a magistrate judge within 24 hours to set a bond. Bonds come in two flavors, but the point of all bonds is to entice you into coming to court by threatening your checkbook. The first kind of bond is a Personal Recognizance Bond, which you may get if the crime you are accused of having committed is not serious, the judge thinks you can be trusted to come to court, and the stars and planets have aligned in your favor. If you are so lucky as to get a PR bond, they just let you out of the jail and wag a finger at you. With a PR bond, you only have to pay the bond amount if you fail to show up to court.
The other kind of bond is more common: the Surety Bond. The way a Surety is supposed to work is that you have a set amount of money that you pay up front to be let out of jail. When your case is concluded, you get your money back. In practice, however, most Sureties are too high for many people to pay in one sum, which is where bail bondsmen come in. If you can’t afford your bond, you pay a bondsman a fraction of the price (often on a payment plan) and the bondsman posts your bond for you.
While you’re in jail, you should be aware that everything you do or say is likely being recorded. You may speak freely with your attorney because those conversations are protected from being recorded by law. Everything else, however is fair game, so when your family comes to visit you, or you call or write them, do not talk about your criminal case unless you’re super interested in hearing your pre-recorded voice NARCing on you during trial.
As you have been reading this, you may be wondering why it’s so important to keep quiet all the time, especially if you’re innocent. How much harm could you do if you just tell the police what really happened and clear up all this mix-up? What you have to remember is that at trial, the prosecutor must prove everything, meaning the less evidence there is out there, the better it is for you, the defendant. If your buddy got beat up and the police are looking for you, your gut reaction could be to tell them that you saw your friend just a few hours ago and he was fine. Now you’ve just admitted to having seen your friend the day he got beat up, which is one less thing the prosecutor will now need to prove. Instead of telling the police in a vain attempt to get them to let you go (again, they won’t), wait until you can speak to your attorney and tell them what happened so they can decide when/if/how that information should be disclosed.
Hopefully this has been helpful, or at least, interesting. Check back in three weeks when I will discuss the pre-trial process.