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What to do after a recent arrest?

Phil Photo New By Philip M. Snyder

As a Fort Lauderdale criminal defense attorney, I receive dozens of calls each month from individuals recently arrested for misdemeanors and felonies in South Florida.  Many of these individuals contact me in a panic – confused, scared and embarrassed about their sudden predicament.  Surprising to some, most of my clients are professionals (doctors, lawyers, teachers, etc.) who have never had any (negative) interaction with law enforcement.   Although these professionals have numerous advanced degrees, they have no understanding about what to do after their recent arrest. As such, although each case (and client) is different, following this “cheat sheet” will give you the best chance of successfully resolving your case.

Immediately prepare a summary of the arrest

After your arrest, the arresting police officer will prepare an incident report called a probable cause affidavit (PC affidavit).  The PC affidavit is a summary of the crime and lays out why the police officer believes he/her has “probable cause” for your arrest.  In an uncomfortably large majority of criminal cases, the PC affidavit will “shade” the facts concerning the circumstances of arrest in an attempt to strengthen law enforcement’s case.

Your memory is most acute within days, or better yet, hours, after your arrest.   It is very important for you to write down everything about the arrest, especially: (1) The reason why the law enforcement officer initiated contact (i.e. “I stopped you for not wearing a seatbelt”), Any directives by law enforcement (i.e. “stop the car”), and (3) Any searches performed by law enforcement (i.e. search your vehicle for drugs / pat you down for weapons).

Defense attorneys rely on their clients to “fill-in the blanks” as to what occurred as compared to what the officer writes in his/her PC affidavit.   Typically, the client’s version of the events is equally “shaded” in contradiction to the police officer’s version of the events.

For example, I have read dozens of incident reports authored by law enforcement officers that read, “Officer Dumbo initiated a traffic stop as the driver, a black male, was not wearing a seat belt.  Upon making contact with the driver, the driver spontaneously uttered, “I’m sorry officer – I have a marijuana cigarette in the vehicle”.  Officer Dumbo detained the driver and searched the vehicle.  Within the vehicle, Officer Dumbo located (1) xanax pill in “plain view”.

Contrary to the report, my client will advise me that: (1) The vehicle will not start without the driver’s seat belt locked; (2) They never made a statement concerning a “marijuana cigarette”; (3) The police officer immediately detained them and their passenger; (4) Officer Dumbo’s backup officer (Officer Mickey) found (1) xanax pill underneath the passenger seat – not in “plain view”.

Without immediately providing your defense attorney with a summary of the arrest, you may later forget to mention some pertinent details.  In the previous example, the fact that Officer Mickey (and not Officer Dumbo) located the xanax pill underneath the passenger seat and not in “plain view”, especially considering that a passenger was in the vehicle at the time of your arrest, could form the basis for a Motion to Suppress.

Take Pictures

In many cases, pictures of the arrest scene and/or the defendant can be the most important piece of evidence at trial.   PC affidavits will oftentimes grossly exaggerate or minimize the facts of an arrest.  This is especially true in crimes concerning violence or DUI.  Pictures taken by a defendant soon after the arrest can rebut the victim’s and/or police officer’s testimony and give credibility to the defendant’s defense.

In cases involving violence (i.e. domestic violence), the police officer’s PC affidavit will oftentimes read, “Officer Dumbo arrived on scene.  Mrs. Jones had visible bruises on the inside of her arms and hands.   Mr. Jones had no visible bruises.   Officer Dumbo believed Mr. Jones was the aggressor.”

In these cases, pictures taken by Mr. Jones of the arrest scene (picture frames knocked to the ground, mirrors broken, etc.) and Mr. Jones (bruising on face and neck, scratches on back) can completely undermine Mrs. Jones’ and/or the police officer’s credibility at trial.  Without such pictures of Mr. Jones, the jury would be left to believe Mrs. Jones’ recollection of the incident, especially considering Officer Dumbo only took pictures of Mrs. Jones injuries.

In cases involving DUIs, a police officer’s PC affidavit will routinely read, “Officer Dumbo initiated the Field Sobriety Exercises of the defendant on a “flat, well-lit” surface.   In reality, the defendant was asked to submit to field sobriety exercises on “broken gravel with cracks in (almost) complete darkness”.  Once again, pictures of the arrest scene can rebut the police officer’s testimony and undermine his/her credibility.

Secure Documentation

In some cases, especially cases involving theft or violence, securing documentation (and video) is necessary to corroborate your defense.   In this day and age, video surveillance is ubiquitous.   Surprisingly, police officers rarely request business owners and/or property managers for their video surveillance of the incident.   To make matters worse, video surveillance is oftentimes discarded within 30 days of the date of the incident.   Clearly, losing this piece of evidence could severely undermine your defense.

It is important to immediately advise your criminal defense attorney of the possibility of video surveillance so they can retain an investigator and/or file leave of court to issue a subpoena duces tecum.     Video surveillance can completely rebut a business owner’s accusations of theft or a victim’s recollection as to who initiated an altercation.

Speak with an experienced criminal defense attorney

Finally, and above all else, immediately make an appointment with at least one experienced criminal defense attorney to review your case.   A large majority of criminal defense attorneys offer a free initial consultation.  Take advantage of this offer.   The criminal defense attorney can quickly clear up some misconceptions about your charge (i.e. potential sentence) and formulate a game plan.   During the initial consultation ask questions about the case and the criminal defense attorneys qualifications (i.e. Martindale-Hubble rating, National Trial Lawyers: Top 100 Trial Attorney,  Board Certification, trial experience, Super Lawyer or Florida Legal Elite designation, etc.).  Hiring the right criminal defense lawyer is one of the most important decisions you will make.   Preparing a summary of the events, taking pictures, and obtaining video surveillance, in conjunction with speaking with an experienced criminal defense lawyer, will give you the best chance for a successful resolution.