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Frequently Asked Questions

frequently asked questions

Criminal Defense Law

  1. What happens if I am arrested?
  2. What is the Procedure on First Appearance?
  3. Was my arrest lawful?
  4. Can I challenge the sufficiency of the search warrant?
  5. Was the search warrant properly executed by the police?
  6. Do I have to consent to the search of my person, home, or car?
  7. What if my car was stopped by the police without suspicion of a crime?
  8. Why do I need to hire an attorney?
  9. Can the prosecution use my prior convictions against me at trial?
  10. When can my probation be revoked?

Criminal Law Articles

  1. How Do I Avoid A DWI Arrest?
  2. What Should I Do If I Am A Suspect In A Criminal Case?
  3. What Can Be Done If I Have Already Confessed?
  4. Can The Police Search Your Garbage For Contraband?
  5. When Can Police Arrest You Without a Warrant?

What happens if I am arrested?

If you have been arrested without a warrant for a misdemeanor offense, the officer must issue you a citation and release you, unless it appears to the officer that detention is necessary to prevent further criminal conduct or if there is a substantial likelihood that you will fail to respond to the citation.

If you have been arrested under a warrant issued upon a complaint, you must be taken before a judge as directed in the warrant. The amount of the bail must be included on the face of the warrant.

If you have been arrested for a felony without a warrant, you must be brought before the judge within 36 hours, exclusive of the day of arrest, Sundays and legal holidays. A judge must review the case and make a probable cause determination within 48 hours from the time of arrest. If the court determines there is no probable cause to believe a crime was committed by you, or if no determination of probable cause is made within 48 hours, you must be released immediately.

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What is the Procedure on First Appearance?

On your first court in a Minnesota criminal case, you will receive a copy of the criminal complaint. Upon motion by the prosecuting attorney, the judge will order you to be booked, photographed, and fingerprinted. If you are charged with a felony or gross misdemeanor, you will not be called upon to enter a plea. You will be advised by the court that you are not required to say anything or submit to interrogation; you have a right to counsel at all stages of the proceedings; a continuance will be granted to speak with or retain counsel; and that you have a right to either a jury trial or court trial. The court will order that you be released pending trial on your personal recognizance or on an order to appear or upon execution of an unsecured appearance bond. The court may also impose conditions of release to insure your court appearance such as restrictions on travel, association, or by being placed under the supervision or a designated person or organization. In making its decision, the court relies on factors such as family ties, employment, financial resources, and length of residence in community. The court is also required to set a second, monetary bail, with no conditions of release.

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Was my arrest lawful?

When probable cause exists, the police may arrest a felony suspect without a warrant in any public place. If the arrest was valid, the police may search the suspect and any area within the suspect's immediate control as an incident to the arrest without obtaining a search warrant. The test for probable cause for an arrest is based on an objective standard. The police must show that they reasonably could have believed that a crime has been committed by the person to be arrested. If the court finds the arrest to be unlawful, the evidence seized from the suspect incident to the arrest, or found in the area of his immediate control, e.g. crack cocaine, will be suppressed and unavailable for use during trial. As a skilled Minneapolis Criminal Defense Attorney, I can help ensure that you benefit fully from these rights and will challenge any unlawful custodial arrest.

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Can I challenge the lawfullness of the search warrant?

Yes. A Minnesota search warrant can only be issued if, based on the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular location. A challenge can be made by reviewing the affidavit in support of the search warrant to determine, for example, whether or not the confidential informant was reliable, or whether or not there is a link between the suspected criminal activity and the place to be searched. If the affidavit does not provide sufficient probable cause to support the issuance of a search warrant, all the evidence obtained from the place searched must be suppressed and cannot be used against you at trail. You should retain an experienced search warrant defense attorney.

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Was the search warrant properly executed by the police?

When executing a Minnesota search warrant, the Fourth Amendment demands that police "knock and announce" their authority and purpose before making an entry. The police must wait a reasonable amount of time for an answer from the occupant before entering the premises. There are exceptions to this rule. If the facts at the threshold justify a belief that the premises are vacant or that knocking would be a useless gesture, as in a case where residents know that the police are at the door and will not answer, then the knock and announce requirement does not apply. Also, if police believe that an announced entry would result in the destruction of evidence or danger to the officer, they are not required to knock and announce prior to entry. Police may obtain a no knock warrant which authorizes an unannounced entry upon a showing that an announced entry will result in the destruction of evidence or danger to the police. The evidence obtained as a result of a violation of the knock and announce rule or as a result of an invalid no knock warrant will be suppressed by the court and unavailable for use by the prosecution at trial.

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Do I have to consent to the search of my person, home, or car?

No, you do not. A warrantless search may be conducted by police when the subject of the search voluntarily consents. The prosecution has the burden of proving that the consent was voluntary and not coerced. If a voluntary consent is granted, the search must not exceed the scope of the consent. If the police knock on your door and ask for permission to search your home, unless they have a warrant, you have no legal obligation to consent to the warrantless search. If police ask for permission to search your person or your car, you have no legal obligation to submit to the search and should not consent to the search.

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What if my car was stopped by the police without suspicion of a crime?

You have a case. To make a legal investigatory stop of a motor vehicle, police must have facts that establish a reasonable suspicion of a driving violation or criminal activity. It is illegal for the police to stop a vehicle based on a mere "whim, caprice or idle curiosity." If the stop of your vehicle by the police was illegal, the evidence obtained as a result of the stop, e.g. blood alcohol content, admissions, or field sobriety tests will be inadmissible at a criminal trial.

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Why do I need to hire an attorney?

Your freedom depends on it. You need an experienced Minnesota Criminal Defense Attorney to protect your  freedom and happiness. If you are convicted of a felony, you may be subject to a mandatory minimum prison sentence, loss of your right to vote, and right to possess a firearm. A felony conviction will curtail your employment opportunities and brand you for life as a "convicted felon." A felony or misdemeanor conviction can result in a jail sentence, the loss of driving privileges, loss of vehicle and plate impoundment. Why risk it all? Call Minnesota criminal defense attorney Robert J. Shane for a free phone consultation at (612) 339-1024.

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Can the prosecution use my prior convictions against me at trial?

If a defendant testifies at trial, evidence of a prior conviction is admissible to impeach  credibility  if the crime was a felony and the court determines that "the probative value of admitting this evidence outweighs its prejudicial effect," or if the crime is not a felony and involves dishonesty or false statement.  The crime must also be less than 10 years old unless the court determines that, in the interests of justice, the probative value of an older crime outweighs its prejudicial effect.

When deciding whether or not to allow the prosecution to impeach a defendant with a prior conviction, the court will consider the following five factors: (1) the impeachment value of the conviction; (2) the date of the conviction; (3) the similarity of the past crime with the crime charged (similar crimes should not be used as the jury may use the prior conviction as evidence of guilt on the current charge); (4) the importance of the defendant's testimony (the concern is that use of the prior conviction may prevent the defendant from testifying); and (5) the centrality of the credibility issue. The court will consider all five of these factors when deciding whether or not the probative value of admitting the prior convictions outweighs the prejudicial effect.

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When can my probation be revoked?

Before your probation can be revoked, the court is required to make the following three determinations: (1) designate the specific probationary condition alleged to have been  violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. These findings are only necessary if the underlying sentence is  executed by the court.  If you were initially sentenced, for example, to 48 months prison, but the execution of the sentence was stayed for 5 years on the condition that you abide by certain probationary conditions, the court could order you to serve 48 months in prison on making the above  determinations.

You are entitled to a hearing to challenge the revocation of your probation. The state is required to prove by clear and convincing evidence that you did in fact violate the conditions of your probation. A defendant has the right to counsel at a probation revocation hearing, the right to cross-examine the state's witnesses, and the right to present evidence on his or her own behalf. Why risk a prison sentence?  Hire an experience probation revocation attorney.

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If you or someone you know in Minnesota or Wisconsin needs the assistance of an experienced Minneapolis Criminal Attorney, call Robert J. Shane any time, day or night, at (612) 339-1024, or complete the contact form provided on this site to schedule your free consultation.

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Contact Me

Robert J. Shane

900 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Phone: (612) 339-1024
Fax: (612) 455-4574

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