At my Texas criminal law firm, I am regularly asked about issues involving arrests. Here, I answer the most common questions.

What three steps should be taken once a defendant is arrested?

The first step is for the defendant not to answer any questions or consent to any searches, and to ask for a lawyer. The defendant should also not talk about the facts of his case to anyone else in jail (e.g., a fellow inmate, who turns out to be the jailhouse snitch) or over the telephone (which may be monitored and recorded).

The second step is for the defendant to contact family members or friends to tell them to post a bond, assuming the defendant is in jail, and hire a good lawyer.

The third step is to actually post a bond, again assuming the defendant is in jail, and hire a good lawyer to maximize the chances that the case is dismissed, settled favorably, or won at trial.

NOTE: If the defendant can only afford to either post a bond or hire a good lawyer, he is better off hiring the lawyer. Posting a bond is only a short-term benefit; hiring a good lawyer has long-term consequences.

When is a defendant “under arrest”?

An arrest occurs when law enforcement take a defendant into custody or otherwise deprive him of his freedom of movement in any significant way in order to hold him to answer for a criminal offense. A defendant can be under arrest even though no one has actually used the word “arrest.”

What is required for a lawful arrest?

Probable cause, which means that there must be a reasonable belief that a crime was committed and the defendant committed the crime.

What happens if probable cause did not exist for an arrest?

Any evidence discovered as a result of the arrest would be suppressed or thrown out.

What are the three typical scenarios in which arrests that occur?

In the most common scenario, a suspect is arrested at or near the scene of an alleged crime by officers or witnesses who observe the illegal conduct (e.g., DWI, shoplifting, drug delivery). This is called an “in custody” arrest and does not require the arresting officer to file a sworn statement showing probable cause for the arrest.

The second scenario involves situations where a crime is reported and a suspect is later developed from collected evidence (e.g., home burglary where fingerprints are lifted, store robbery where store video or a line-up is used to identify the suspect, sexual assault where DNA evidence is discovered and tested.) Based on the evidence police gather, police file a sworn statement setting forth probable cause for an arrest. In Harris County, this sworn statement is included on the same page as the complaint. Prosecutors typed these sworn statements based on information that police provide to them. A judge will issue an arrest warrant based on the sworn statement if probable cause exists. This warrant is a written order, which a magistrate signs, to a police officer that a specific person accused of an offense be taken into custody. The warrant must state the name of the accused, or provide a reasonably definite description that would allow the officer to identify the suspect as the person appearing on the warrant. It must also state that the accused has committed some offense that the state has deemed illegal. The reasons for the arrest must be clearly stated in the warrant. These are often called “to be” warrants because the defendant is “to be” arrested.

In scenario three, the prosecution presents a felony case directly to a grand jury, meaning the defendant has not been arrested nor a complaint been filed. If the grand jury indicts, a “to be” arrest warrant automatically issues. The indictment itself is the probable cause for the arrest warrant. Prosecutors refer to this process as “direct to grand jury.” Prosecutors directly seek an indictment, instead of first filing a complaint and seeking an arrest warrant based on probable cause, because an indictment shortcuts the longer process of typing a sworn statement setting forth probable cause and getting a judge to sign an arrest warrant.