Criminal Law Information & FAQS
If you are facing criminal charges, you should be educated about your rights. Grant & O'Malley Co. L.P.A. has an in-depth knowledge of criminal defense that can only come with decades of experience. If you have questions about your rights, contact me, criminal defense attorney David L. Grant, for help in the Greater Cleveland area.
What happens if I am arrested?
If you are arrested for breaking a law, the case is taken before a judge or a magistrate who may issue a warrant if necessary and set a bond for appearance in court. If the defendant cannot post the bond, he may be incarcerated pending an appearance in court. If the bond is posted, he will remain free pending an appearance at an arraignment.
An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge. During the arraignment, the defendant is formally told what offense they are charged with and told their Constitutional rights. The defendant will enter a plea of being guilty or not guilty, the bond may be reviewed, and a judge is assigned to the case.
Can they use force to arrest me?
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or if the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.
What is a search warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.
What is probable cause?
This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn’t probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officer’s hunch, with nothing more, will not satisfy the requirements.
If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence.
What if I agree to the search?
If you voluntarily consent to a search of your home, automobile or person, then the officer can conduct a full search without a warrant. Anything the officer finds can later be used against you in court.
What is the plain view doctrine?
Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place where he or she has a right to be.
EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather. While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Doright can legally seize these items without a search warrant because they are in plain view.
If I am arrested, can the officer search me?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.
What is bail?
Bail is money or another property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted.
However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.
What types of bail may the court set?
- Recognizance – This is the defendant’s written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required.
- Unsecured bond – This release pending court appearance is based on the defendant’s written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
- Secured bond – This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
What happens at an arraignment?
You have the right to be arraigned without unnecessary delay after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set.
If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you do not admit guilt but you admit the truth of the facts alleged in the complaint or indictment. Legally, this is the same as a guilty plea, but it cannot be used against you in a subsequent civil case.
Before pleading guilty to some first-time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling, which can result in dismissal of the charges if you complete the counseling.
If misdemeanor charges are not dropped, a trial will be held later in the municipal court. If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.
What will happen at a preliminary hearing?
Every person who is charged by the warrant is entitled to a preliminary hearing. If a person remains in jail, he or she is entitled to a preliminary hearing usually within 10 days of arrest. If a person is released from jail on bond, he or she is entitled to a preliminary hearing usually within 15 days of arrest.
A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes.
If the judge makes a finding of probable cause after hearing the evidence, the charge is sent to the grand jury.
If the judge does not find that it appears as an offense has been committed or that the accused is likely the person who committed an offense, the accused is discharged, and the charge is dismissed.
If the accused is discharged and the charge dismissed after a preliminary hearing, the prosecutor may still present evidence to the grand jury to see if they will find probable cause.
Find More Answers With Grant & O'Malley Co. L.P.A.
Whether you are facing misdemeanor or felony charges, I can help you mount an aggressive defense to keep your record and your reputation clean. To discuss your situation, call my office in Cleveland at (216) 815-3701 or send me an email.