Criminal Defense FAQ

You Have Questions, We Have Answers

When it comes to providing strong legal defense for criminal matters, our team at Hutton & Khalaf is second to none. We have provided answers to some of the common questions we have received below. If you have any further questions, contact our firm today.

Can officers conduct a search without a warrant?

Law enforcement officers need a warrant to conduct a search in nearly every case. They get a warrant by showing a California judge or federal judge that there is sufficient probable cause to conduct a search. If the judge determines sufficient probable cause, then a warrant will be issued to search for specific items in a specific place. Often the description of what’s being sought might be somewhat general like “drug paraphernalia and anything associated with the buying, selling, or using of illegal substances.”

Officers do not need to obtain a warrant in the following instances:

The first exception is called the “plain view doctrine.” This refers to a situation in which the officer, during the course of legal business, sees something of interest in plain view. For example, if you consent to speak with the officer inside your home and he or she happens to see drug paraphernalia in the home or an item fitting the description of something that has recently been stolen, an officer can legally seize the evidence without a warrant.

Second, the officer can also legally conduct a warrantless search if you give consent for them to do so. This typically happens when a person believes they have nothing to hide or they think refusing to consent to the search will be grounds for an arrest. Both of these are mistakes. Many times, during a search, law enforcement officers will find what they believe is evidence of a crime even if no crime has been committed. Also, in nearly every situation, nobody must give permission to have their property searched unless there is a warrant. You cannot be arrested for asserting your own constitutional rights.

Additionally, an officer can conduct a “search incident to arrest” without a warrant. This means that during the course of a lawful arrest — one that’s based on probable cause — the officer can search the arrestee and the immediate surroundings for weapons or for evidence he or she fear might be destroyed. However, the search is limited to the area within the suspect’s “immediate control.” This typically means that the officer cannot search beyond the room they are in when they make the arrest. If the officer or officers believe there might be other dangerous suspects in the location, they can do what’s called a “protective sweep” to look for people who might be concealing themselves. In the course of a protective sweep, the law enforcement agents can then legally seize anything incriminating within plain view.

There are also emergency situations, known as “exigent circumstances” in which an officer can search without a warrant. For instance, an officer or agent can follow a fleeing suspect into a location and search for evidence the officer believes the suspect plans to destroy. This is also the case if an officer has clear reason to believe that someone is in imminent danger. If the officer hears cries coming from inside a house, for instance, they can enter, make an arrest, and perform a search incident to arrest.

Can an officer legally stop me, even if I have done nothing wrong?

Yes. The same rules apply to officers as for everyone else; anyone can stop another person on the street and ask them questions. They can approach you, ask you questions, and even ask to search your belongings. But, just as with anyone else, you do not have to answer questions, you do not have to let them search your belongings, or respond to them in any way.

What the officer can legally do during a stop depends largely on what he or she is thinking about you at the time. Because we have been criminal defense attorneys for so long, we have seen many instances in which an initial stop was not based on objective facts. If an officer has a “reasonable suspicion” that you have been involved in a crime — even if you are totally innocent — they can detain you and even frisk you. This may seem unfair but you do have some protections. The officer’s reasonable suspicion must be based on objective facts gleaned from the situation, and cannot be based on a mere hunch, general distrust,, or a "gut feeling." Law enforcement officials are not allowed to stop a person based solely on race, but racial profiling can be extremely difficult to prove. As your defense attorneys, however, we may be able to show that the reason for stopping you was not justified.

Perhaps, for example, you fit the description of an individual who committed a crime nearby. This might give an officer a reasonable suspicion to stop you. This would likely not be enough evidence for an officer to arrest you, but it would be sufficient grounds for a stop and for them to ask you questions. Once an officer has a reasonable suspicion that you have been involved in a crime, he or she can legally do a brief pat down to look for weapons or anything else that might put the officer or others in danger. The officer can also legally prevent you from fleeing if they have reasonable suspicion, whereas if they do not, you are free to go. But even in this instance, you do have the right to consult with an attorney. If you are stopped by law enforcement, you can ask to speak with a lawyer before you answer any questions.

If it becomes clear that law enforcement officials intend to detain you, it is a good idea to ask up front what their intentions are. Officers are required to give you Miranda warnings if you are in custody, a procedure whose main purpose is to protect your Fifth Amendment right against self-incrimination. One crucial thing to remember is that regardless of whether you have explicitly been given the Miranda warnings, you always have a right to remain silent. In other words, you never have to answer questions if you don’t want to do so. The same is not true for showing identification, however, as many states make it a crime to refuse to show an officer your ID if he or she asks to see it. This is the case in California.

Additionally, while you do not have to answer the officer's questions, you should always be courteous. Becoming argumentative or rude will do no good. In fact, it may do the opposite. Instead, say as little as possible, remain polite, and contact Hutton & Khalaf for advice and legal representation as soon as possible.

Does an officer need a warrant to arrest me?

No. You can be arrested even if a warrant has not been issued. This is one of the most commonly asked questions about criminal law and, while it may seem surprising, in most cases the officer does not need a warrant to make an arrest. Probable cause is at the heart of the issue — if the officer has probable cause to believe that you have committed a crime, they can arrest you without going to a judge for a warrant. In getting a warrant, law enforcement officers have to convince a judge that there is probable cause to make an arrest; if an arrest was made without a warrant, the officer must later convince a judge that there was sufficient probable cause at the time the arrest was made.

What constitutes probable cause? Probable cause exists, generally, when law enforcement officers have more than a “bare suspicion” that a crime has been committed and that the person they want to arrest is the perpetrator. The officer doesn’t actually have to witness the crime; they just have to honestly believe it is more likely than not that the suspect was involved. One of the most common bases for a warrantless arrest is where a witness to a crime gives a description of a perpetrator and the officer sees someone fitting that description nearby. In most cases, this is sufficient cause to justify an arrest for a felony offense. The same does not hold true for misdemeanors, however — an officer cannot make a warrantless arrest of someone for a minor crime (such as shoplifting) without having witnessed the crime.

Generally, law enforcement officers need an arrest warrant if they are planning to arrest a person in his or her home. This is not a universal rule, however, and law enforcement can make a warrantless arrest in a suspect’s home if “exigent circumstances” exist. Such circumstances may include the following:

• When the officer chased a fleeing suspect into his or her home
• When the officer believes that someone might be in danger inside the house
• If a person (not necessarily the suspect) answers the door and lets the officer come inside.

In any of these cases, an officer may later justify the warrantless arrest even if made inside a suspect’s home. If a judge later rules that there was insufficient probable cause for the arrest to be made, there remains little you can do. An experienced attorney may argue that any evidence gathered during the course of an unlawful arrest should be inadmissible during trial, but consequences of an unlawful arrest are evidentiary in nature. In such circumstances, reach out to us for the advice and guidance that might make the difference between freedom and incarceration for you or your loved one.

How does the insanity defense work?

Many clients accused of crimes ask "How does the insanity defense work?" Using this defense is extremely challenging. Less than 1% of criminal defendants even raise this possibility and only a quarter of these are successful. Each year, there are many high-profile criminal cases that rekindle discussion of this issue. Many people who commit high-profile crimes seem to attempt the insanity defense. It rarely works. The court typically makes the insanity plea off limits. While the legal definitions of insanity are different in each state, every state has an extremely high standard for proving that the defendant did not know that they were committing a crime due to their insanity.

The most widely used legal definition of insanity is known as the M’Naghten rule. The name comes from a famous English murder case in the 1800s. The M’Naghten rule requires a defendant to prove either that they did not know what they were doing, or if they did know, they were unaware that the actions were wrong or damaging to another. To show that a defendant could not distinguish between right and wrong is nearly impossible. Another standard courts may use is known as the irresistible impulse test. Under this standard, defendants must show that they knew their acts were wrong, but they lacked the will to control themselves.

About one-third of states rely upon the American Law Institute’s test for insanity. This standard says that people aren't responsible for criminal conduct if, as a result of mental disease or defect, they lack substantial capacity to appreciate the criminality of their conduct or to obey the law. This is a slightly more lenient standard than M’Naghten, as defendants must only show a “substantial incapacity” that they didn’t know that what they were doing was wrong, rather than having an absolute inability to know the difference. However, most people who have attended school, held jobs, interacted with others in any capacity, and have demonstrated fairly "normal" behavior over the course of their life are not typically candidates for the insanity plea.

While relying on this defense is rare, there is good reason for having the insanity defense available. Even though it is rarely used, it can still prove effective. Because putting people in prison for crimes may deter future crime, it doesn’t make sense to put people in jail who had no control over what they were doing or did not intend to do what they did. Putting an insane person in prison does little good for them or society. The criminally insane may be better off in a mental institution. Additionally, people who are found not guilty by reason of insanity do not simply go free. They are often sent to treatment facilities. Residency at such a facility may last much longer than a prison sentence would have.

How will my sentence be decided?

Of course the sentence you receive depends heavily on your individual case and whether or not you face misdemeanor or felony charges. The type of crime you’ve committed, the sentencing guidelines or statutory recommendations for the crime, and your criminal history are probably the three most important factors used by a judge when they determine your sentence if you are convicted. Sentencing is typically separated into four classifications:

• Fines
• Community service
• Probation
• Jail or prison time

A judge will consider state or federal sentencing guidelines or the crime statute itself in determining the recommended sentence if you are found guilty of a crime. The basic difference between a misdemeanor and a felony lies in the sentencing. Misdemeanors typically result in six months or less in jail. A felony, on the other hand, will usually carry more than six months of prison time as a recommended sentence. While judges cannot adhere to sentencing guidelines or statutory recommendations without considering other factors, they are often required to justify a deviation from the sentencing guidelines. They can impose a longer or lesser sentence but they must explain why they did not adhere to the typical guidelines.

Nearly every state now has mandatory minimums for crimes that involve drugs, firearms, and sex crimes. In such cases, no matter what the extenuating circumstances may be, a judge has no choice but to sentence a defendant as the law requires. Similarly, there are often mandatory minimum sentences for people who have been convicted of their third felony-level crime in California. This type of law is generally known as the “three strikes” rule, and is justified by legislators based upon an assumption that people who repeatedly commit serious crimes should receive tougher sentences. If you are facing federal criminal charges, decades in prison may be imposed by mandatory minimums.

There are mitigating factors that a judge will consider when deciding on what they see as the appropriate sentence. If you have no history of prior convictions, if you were merely an accessory to a crime, or if no one was (or was likely to have been) injured may all be details that can work in your favor. On the other hand, judges generally will come down harder on someone who has a list of prior convictions, has used a weapon during the commission of the crime, or has intended to hurt someone.

If I am pulled over for a traffic offense, can my vehicle be searched and can I be arrested?

Law enforcement has a considerable amount flexibility and choice when they pull you over for a traffic stop. In many ways, being stopped by an officer in your car gives them nearly total power to do as they wish. It is totally legal for them to pull you over for a broken taillight, an incomplete stop, or if they suspect you of DUI. As long as an officer can make a plausible argument to a judge that you may have been committing a crime or traffic violation of any kind, the officer can pull you over.

Once the officer pulls you over, they can search for and seize anything in plain view unless they have reason to believe that evidence of a crime is being concealed within the vehicle. This means if you have an open bottle of alcohol lying on the back seat, it is fair game for the officer because it is in plain view. However, if the officer smells marijuana emanating from the car, for instance, the officer can search the car more thoroughly after they arrest you. If the officer has probable cause to believe you have been involved in any type of crime, including drunk driving or driving under the influence of drugs, they can arrest you without a warrant and conduct a full search of your car. After you have been arrested, the officer can conduct a full and legal search of your car and any belongings found in the vehicle.

No matter how minor the alleged criminal violation, the officer can legally require you and your passengers to get out of the automobile. While they can’t search your car unless they have probable cause to suspect criminal activity, officers can do a brief pat down of you or any passenger if they have a only a reasonable suspicion that they might be in danger. Law enforcement can also have a trained dog sniff around your car for contraband. If the canine finds something, this evidence can be used against you at trial.

If you are stopped by an officer in your car, be polite and cooperative but do not say anything. Even if you feel you’re being unfairly treated, be cooperative but quite even if you have done nothing wrong. If you have been stopped, you must produce a valid driver’s license and, possibly, proof of insurance; failure to do so carries its own penalty. You do not, however, have to answer any questions the officer asks you, as you are always protected by your Fifth Amendment right against self-incrimination. The officer cannot arrest you simply because you will not answer their questions in detail.

Should I agree to a plea bargain?

The vast majority of criminal cases — over 90 percent — are resolved through plea bargain. Plea bargains occur when the defense and the prosecution reach an agreement, which usually entails the defendant agreeing to plead guilty or no contest in exchange for a lesser charge or a lighter sentence. The agreement is then presented to the judge for consideration, and if the judge feels that the resolution is fair to all parties, he or she will make it official.

Why do so many people agree to plead guilty or no contest instead of going to trial? For the defendant, the advantages can be many. Taking a case to trial is a gamble, and a lot of people charged with a crime prefer to take a deal rather than risk getting a stiffer punishment. Depending on the crime, a plea bargain can quickly resolve the case and result in the defendant being released from jail. Pleading to a lesser charge results in a less serious offense on your criminal record. A lot of people simply want to avoid the hassle and cost of a criminal trial, or feel that loved ones would be better off if the matter was resolved more quickly.

For prosecutors and judges, accepting a plea is usually a matter of practicality. For better or worse, there are simply not enough resources or time to take every case to trial. Prosecutors have a never-ending stream of work and plea bargains help them resolve issues quickly so they can move on to the next case. Judges have to take into account not only their own calendars (court schedules) but also crowded prisons and overworked state employees. In most cases, prosecutors, defense attorneys and judges keep fairness at the forefront of these types of negotiations, but the need for speed does certainly enter into the equation.

As for whether you should take a deal, it depends on your particular case, the circumstances surrounding it, and your criminal history. A good defense attorney will give you the straight story as to what your chances at trial would likely be, and whether you would be better off accepting a plea bargain. While it may seem that they, too, are trying to hurry you through the system, and honest and experienced attorney will put your best interests ahead of getting your case over with. Despite what an attorney may know or recommend, the only person who can decide to take a plea is you, and you will have to weigh the pros and cons for yourself and your loved ones.

Should I testify at trial that I acted in self-defense?

Every defendant in a criminal trial has the right to testify or not to testify, and whether or not you take the stand in your own defense is a decision to be made between you and your lawyer. While it may be surprising, experienced attorneys often encourage their clients not to take the stand and testify. Even if you want to tell your side of the story to a judge and jury, it is not always the best way to win your case. Getting on the stand opens you up to intense questioning by the prosecution; depending on your criminal history and your ability to stay cool under pressure, such scrutiny can sometimes hurt your case rather than help it. It’s your lawyer’s job to poke holes in the prosecution’s case against you, and a good attorney can sometimes do this effectively without putting you on the stand.

Often, people on trial are nervous that not testifying in their own defense will make them look guilty, but the judge and jury are legally prohibited from taking a defendant’s choice not to testify into account when deciding his or her guilt. Along those same lines, the prosecution is prohibited from making any reference to the defendant’s choice not to testify during the course of the trial.

Many defendants believe that they acted in self-defense and want to testify to that fact in court. To claim self-defense, you first have to admit that you did, in fact, commit the crime you are being accused of. If you have been accused of hitting someone, you have to admit that you did hit him or her, but that you did so in a legally justified manner. For a violent act to be legally justified, you, as the defendant, have to have a reasonable belief that the alleged victim was intending to cause you imminent and serious bodily harm when you committed the crime. Even if you are the first one to strike, you can still argue that you believed your victim had put you in danger of imminent bodily harm.

Another important component to self-defense is proving that you used reasonable force. This means that the amount of force you used must be proportionate to the amount of force the alleged victim used or would have used against you. If you used more force than was necessary to protect yourself, even if you were in fear for your safety, you can still be considered guilty of a crime. Whether or not claiming self-defense is the best strategy for you is something a good lawyer can help you decide.

What does "beyond a reasonable doubt" mean?

Proving guilt “beyond a reasonable doubt” refers to the standard of proof the prosecution must meet in a criminal case. The standard of proof is the level of certainty each juror must have before determining that a defendant is guilty of a crime.

In practice, it is impossible to precisely define “reasonable doubt.” It can be easier to understand, however, by contrasting it to the standards of proof used in civil trials. In a civil trial, where a person’s freedom is not at stake, there are two possible standards of proof that must be met in a case. One is the “preponderance of the evidence” standard, which means certain facts or evidence presented at trial are more likely than not to be true (just over 50% is fine). The other standard is “by clear and convincing evidence,” which means that there is a high probability that a piece of evidence is true. Reasonable doubt is defined somewhat differently depending on what jurisdiction you’re in, but essentially, a juror can have some doubt in her mind, but it cannot be one that would affect a reasonable person’s “moral certainty” that a defendant is guilty. Because a defendant’s liberty is often at stake in a criminal trial, the reasonable doubt standard is the highest standard in the legal system.

Another vital component to the criminal trial is the requirement that the prosecution bears the “burden of proof.” A defendant is presumed innocent until proven guilty, and therefore it is the prosecution’s job to build a case against the defendant, not the other way around. This may seem like minor distinction, but if the prosecution simply had to accuse the defendant of a crime and then wait for the defendant to prove that he or she didn’t do it, a corrupt prosecutor could charge anyone with any crime, without proof. If, under that system, the defendant had no alibi, the jury might be forced to convict based on very little evidence.

The drafters of the Constitution were wary of a legal system with too much power, and promised that no person under the law should be deprived of life, liberty or property without due process of law. Requiring the prosecution to prove each element of a crime beyond a reasonable doubt is one way in which the justice system protects each defendant’s fundamental right to due process.

What happens if my child is arrested?

For almost a hundred years, there has been a separate system of justice for juveniles in the United States. Legislators have attempted to design a system that focuses on rehabilitation and education rather than punishment and retribution. When a minor is arrested and taken into custody, they will likely be referred to an “intake officer” who specializes in juvenile justice. That officer will first evaluate the case and the circumstances, and then decide whether formal charges are necessary. Depending on the severity of the crime and the minor’s criminal history, an intake officer can decide not to move forward with formal charges and can choose instead from less severe penalties ranging from an informal reprimand, to counseling, compensation for property damage, or community service.

Depending on the severity of the crime and the child’s record, an intake officer may decide that formal charges are necessary. A minor might remain in custody in a juvenile justice facility or a foster home while waiting for their arraignment, where a juvenile court judge will read the minor the charges against him or her. At that point, the lawyers for both sides will usually discuss whether a plea agreement is possible or desirable, or whether the case should move forward. In the juvenile justice system, there are no jury trials and all cases are heard before a judge. The judge then makes the decision as to whether the minor should be “adjudicated delinquent,” which is analogous to being found guilty in adult court.

Juveniles, like adults, have to the right to an attorney and the right to remain silent. If they are in custody, law enforcement must give them the Miranda warnings so that they can better know their rights before they answer any questions.

There are certain kinds of crimes — called “status offenses” — that are only crimes if committed by a minor. These would include skipping school or curfew violation, and most of the time they carry less serious punishments. In contrast, there are crimes so severe that a judge can use a tool called “judicial waiver.” This means that a judge decides that a minor should not be afforded the protection of the juvenile justice system, but should be tried as an adult.

Juvenile records are sealed, which means they are not to the public. If a juvenile agrees to and meets certain conditions, his or her record can be expunged — erased, essentially — when he or she turns eighteen. As with most criminal matters, finding an experienced attorney early in the process can help guarantee your child gets the most favorable treatment possible.

When does the officer have to read me my rights?

Your "rights," otherwise known as the Miranda warnings, are a list of statements that law enforcement must recite to you before they can conduct a custodial interrogation. The Miranda warnings exist to protect your Fifth Amendment right against self-incrimination. If you understand these rights before you talk to law enforcement, the legal theory goes, anything you say after that will be voluntary. While the exact wording differs between jurisdictions, the warnings are essentially as follows: You have the right to remain silent. You have the right to have an attorney present. If you can’t afford an attorney, you will be provided one by the government. Anything you say can be used against you in court.

Every state requires law enforcement officers to give the warnings in some form after taking a suspect into custody. The goal behind the requirement is to protect the truthfulness of the evidence that will be later used in court. If a person feels pressured or intimidated into talking, it is assumed that they are less likely to tell the truth and more likely to tell the officer what they want to hear. Verdicts based on coerced confessions erode the efficacy of the criminal justice system, and the Miranda warnings are intended to protect suspects from their own tendency to succumb to intimidation.

So, do the officer have to read you your rights? The question hinges on whether you are in custody or not. The rule of thumb in determining the custody question is whether or not you feel free to leave. In most cases, the answer is pretty easy — if you’ve been arrested, then you are in custody and law enforcement must give you the Miranda warnings. There are some situations, however, that aren’t so simple. For example, what if the officer has stopped you on the street but haven’t officially arrested you yet? Or, what if you have consented to the officer entering your home for a chat? You may not be in handcuffs or at the station, but you still may be in custody.

Of course, most people don’t feel free to leave when they’re talking to law enforcement, but in the event that you did say something incriminating before the officer gave you the Miranda warnings, a good attorney can help you determine whether you were in custody and whether a judge should disallow your statement to be entered as evidence against you.