Arrest, Jail and Bail: A Criminal Defense Attorney’s Perspective
In order to arrest someone, a police officer must first find probable cause and have the right to arrest you. If this happens, a judge will have a hearing, generally at or in the jail to determine whether the officer’s determination of probable cause was legitimate. This hearing must happen within 48 hours (weekends and holidays are at a court’s discretion of whether to include in this time frame) of the arrest. If you were arrested based on a warrant, read this.
Probably cause. So what is it? According to the U.S. Supreme Court, probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a reasonable person to believe that a particular individual is committing, has committed, or is about to commit a criminal act. Obviously, there is a lot of argument about this standard as it’s pretty loose. Fortunately, officers have to be able to articulate the facts and circumstances forming the basis for probable cause in court. They submit a written affidavit and swear to it.
If you are arrested, it means an office has decided they found probable cause based on (1) witness statements, and/or (2) their own observations of fact and/or (3) the statements of the person they arrested. In our role as criminal defense lawyers | attorneys, we have found probable cause is a surprisingly low standard in application. However, this is not the end of the discussion.
Right to Arrest. Officers have limits on who they can arrest if they didn’t see the crime happen. Remember, officers are just people with training and each of them carries their own set of biases, limitations and abilities. If an officer didn’t see something happen, there should be limits on their behavior or abuse will happen.
The law incorporates the concept of “don’t arrest for what you didn’t see” into the Revised Code of Washington (“RCW”) 10.31.100. This RCW holds for the idea that the rule of “don’t arrest for what you didn’t see” is the general rule, but there are some exceptions: (1) officers can arrest for serious crimes (felonies) without a warrant and (2) there are 11 sections of exceptions where warrants are not required for lower level crimes (misdemeanors | gross misdemeanors). One of these 11 sections deals with the mandatory arrest requirement for domestic violence cases, others address things like DUI’s, violating court orders, criminal traffic issues, etc. If you are interested, read it as, ironically, the law has carved a lot of exceptions into the rule that an officer should only be able to arrest for things they see.
48 hour Rule. The “check and balance” to police officers overstepping in these “warrantless arrests” based on their opinion is a rule of court, called CrRLJ 3.1 (Superior Courts) or CrR.3..2.1 (District Courts). If anyone has been arrested without a warrant based solely on an officer’s determination of probable cause, such a person has the right to a hearing within 48 hours following their arrest (whether this includes weekends or holidays is within each court’s discretion) in which an “independent” judge will review the police officer’s evidence of probable cause, generally in the form of a sworn affidavit, and determine whether it meets the threshold requirement of “probable cause”.
The criminal defense attorneys | lawyers in this office make every effort to attend this hearing for retained clients as the sworn statements submitted to the judge are the first glimpse into what a case looks like. We also make sure the finding or probable cause is fair, and we use this chance to argue for release and bail.
If a judge finds that there is “probable cause” to support a particular crime, there is another rule that requires prosecuting attorneys to file criminal charges within the next 24 hours or a person held in jail will be released. This is how the Washington criminal system handles warrantless arrests, probable cause and charges. If your criminal defense attorney | lawyer is sharp and on it, they can use this process to their client’s benefit.
The criminal defense lawyers | attorneys in our office have handled an enormous number of complicated cases in the criminal arena over the course of our criminal law careers. We are a unique blend of courtroom experience, knowledge, skills and temperament. Our lawyers know criminal cases are rarely as simple as the police reports claim and our clients hire us because they want staunch and effective counsel who takes the time to make sure their rights are protected. Whether our role is as legal counsel, negotiator, or litigator, we have years of experience fighting and resolving cases with our clients’ best interests in mind.