PRE-ARREST CRIMINAL INVESTIGATIONS

Pre-Arrest Texas Criminal Investigations: Police Investigations, Federal Investigations before Arrest

As a Texas Board Certified Criminal Lawyer, I have experienced first-hand the lengths to which criminal investigators, law enforcement agencies, and police officers can go to try and find enough documents, paperwork, and witness statements to attempt and put together enough evidence to arrest or indict someone for a crime.

Whether or not there is enough valid evidence for the arrest, much less for an investigation, is another matter. And, very importantly, even if an investigation leads to an arrest or an indictment or someone charged officially with a crime does not mean that they are not to be considered innocent.

In their zeal, many officials and officers and prosecutors and investigators can forget that the defendant is innocent until proven guilty beyond a reasonable doubt. In fact, in their fervor, many will go to great efforts to substantiate the perception that someone is probably guilty of a crime. Sometimes, things like someone’s constitutional right to privacy might not be respected (like the current use of cell phone gathering via stingrays and tower dumps in Texas without a search warrant).

What is a pre-arrest criminal investigation?

Pre-arrest criminal investigations involve any law enforcement representative asking questions or doing research into circumstances which he or she believes may constitute a violation of state or federal law. Usually, pre-arrest or pre-charge investigations happen after someone contacts a local law enforcement agency and claims to be a victim of crime.

Their statement is taken, a formal “complaint” is filed, and the law enforcement process begins into investigating that complaint to see if a crime has been committed, and if so, to arrest those who are determined to be violators of the state or federal law.

However, in recent times, investigations have also included federal investigations into actions that may not directly connect an individual complaint to the person being investigated. For example, Justice Department investigations in arms deals, health care fraud, and other federal “operations” may involve complicated situations which involve numerous investigators and take years to complete (see, for example, my January 2013 blog post on ongoing Medicare Fraud Scheme investigations as part of the federal Health Care Fraud Task Force).

Who does a pre-arrest criminal investigation?

Anyone authorized to investigate a crime can be a part of a pre-arrest criminal investigation. A wide variety of government employees conduct pre-arrest criminal investigations in Texas, including:

• City of Dallas Police Officer / Detective
• City of Fort Worth Police Officer / Detective
• Dallas County Deputy Sheriff / Detective
• Tarrant County Deputy Sheriff / Detective
• Federal Bureau of Investigation (FBI) Agent
• Bureau of Alcohol, Tobacco & Firearms (ATF) Agent
• Texas Ranger
• Internal Revenue Service (IRS) Agent
• U.S. Treasury Agent
• Investigator for the Office of the Attorney General
• Investigator for the Department of Justice
• Investigator for the County District Attorney’s Office
• Investigator for the Texas Department of Child Protective Services.

Things to Know if You Are Being Investigated for a Crime in Texas

Here, from the online video made by Michael Lowe to help the public understand their rights in pre-arrest criminal investigations are the following things to know when you are being investigated for a crime:

1. Don’t Talk to the Detective Without Your Lawyer Being Present.

If you think you may have committed a crime and you get a call or a visit from a police detective, you should not talk to the detective. Why?

The Detective Will NOT tell you the whole story. Detectives are trained to obtain as much incriminating information from a potential defendant as possible. You CANNOT know what is in the Detective’s file.

People frequently lie to the police or report inaccurate information. This is especially true in Child Abuse and Family Violence cases. Unfortunately, many family disputes end in divorce and child custody battles.

There are many other family disputes that may also arise. In these cases, the allegation made to the Police Detective will NOT be accurate, complete and sometimes a total fabrication. If you talk to the Detective in a case like this, you will NOT be told what the lies are. The Detective will be looking for you to explain “your side” of the case and you won’t know what the case is all about.

The Detective will NOT be offended if you ask to have a lawyer represent you before answering questions. This is your Constitutional Right!

Detectives hear accused citizens asking for lawyers every day; they are used it. The Detective will threaten you or insinuate that you will be punished more severely if you hire a lawyer. If the Detective uses this tactic, it is more likely that the Detective does not have a very strong case and is secretly worried that your lack of cooperation will force him to close his case.

You must stand your ground and politely request to speak with an attorney first.

Detectives are trained obtain all relevant evidence available and talk to the Defendant last. This means that the Detective has likely made his mind up about your guilt. The Detective will NOT tell you he/she has already decided to issue a warrant for your arrest.

The Detective may already have a “pocket warrant” in their desk when you go to his/her office to give your statement. The Detective just wants you to incriminate yourself and then arrest you when you are done.

Never give a statement to a Detective if he asks you to come to his office for a meeting.

2. Lie Detector Tests – Don’t Take a Polygraph, Even if They Ask for One.

Should I take a polygraph? In most Child Abuse cases, the Detective will likely want you to take a polygraph to “prove” your innocence. You should NEVER take a police polygraph. Why?

You are never required to prove your innocence. It is the Government’s job to prove their case.
Refusing to take a polygraph will never be used to prove your guilt at a later time.

Polygraph results are NOT admissible in a court of law. Therefore, the result will not exonerate you.

There are 2 different types of Polygraphers: (1) Police-employed polygraphers and (2) independent polygraphers.

1. Police Polygraphers are trained to use the Polygraph as an intimidation technique used to obtain a full or partial confession. Remember, this type of Polygrapher is EMPLOYED by the police department. Their job is NOT to find out the truth. Their job is to assist their Police colleague in their investigation. A Police Polygrahper simply can’t be trusted with your freedom.

2. Independent Polygraphers can be useful in a Police Investigation. If you hire an attorney and your attorney hires a Polygrapher, the Polygraph results are covered by the Attorney Work-Product Privilege. This means that the result of the Polygraph remains confidential with your lawyer. This way, you decide whether to take a polygraph and whether to release the result of the polygraph.

The Detective will make you believe that their Polygrapher is the “best” and your attorney cannot hire a better polygrapher. I only use the finest Polygraphers in the country.

I routinely use a Polygrapher in the Dallas – Fort Worth area who enjoys the highest reputation in the Polygrapher community. This man frequently trains other Police Polygraphers. The FBI, Dallas County District Attorney’s Office and many North Texas Police agencies have hired this Polygrapher in the past, so his credibility will never be an issue in your case.

3. The Tricks of Social Chat – Facebook, Twitter, Email and Phone Calls: Be Careful!

In many serious Felony cases, Police Detectives are trained to use their complainant to obtain statements from the accused. In Texas, it is NOT illegal to secretly record a phone conversation as long as only one party to that conversation consents to the recording.

Therefore, it is perfectly legal for a Detective to tell the complainant to call the accused and record the conversation. For example, many sexual assault and indecency accusers do not report the allegation for a long time; sometimes years later.

In cases like this, the evidence is usually a “he said, she said” scenario. Detectives frequently use secret phone recordings in cases like this. This technique is commonly referred to by law enforcement as a “cold call.”

The Detective will instruct the complainant to contact the accused via phone or text message. The objective of the conversation is to get the accused to say that “you are sorry” or to otherwise “feel bad” about what happened. You should contact an attorney immediately if you receive a communication like this. The same advice is true for E-mail, Twitter, Facebook Or Instant Message. Be careful what you say.

4. Empty Promises from Law Enforcement: Beware the Police Detective’s Promises.

What if the Detective or police officer says that the accuser can “drop the case” if they just come in to sign an affidavit of non-prosecution? Will this help make the case go away?

An “Affidavit of Non-Prosecution” is an affidavit that the accuser or complainant signs under oath wherein the accuser asks the Police Department or the District Attorney’s Office to “drop the case.” They have no legal effect and it is very unlikely the police or District Attorney’s Office will dismiss an existing case based solely on an affidavit of non-prosecution.

Many times the complainant or accuser is not cooperative with the Police Officer or the District Attorney’s office. Unless the accuser is subpoenaed to come to court, the accuser is not required to cooperate with law enforcement’s investigation.

So, law enforcement will attempt to entice the accuser to come to the police station or the District Attorney’s Office to sign an affidavit of non-prosecution. Law enforcement’s objective is to convince the accuser or complainant that they need to cooperate more fully. I have even seen the accuser be served with a subpoena after filling out an affidavit of non-prosecution to ensure their appearance in court to testify against the Defendant.

Police Detectives do not have the authority to engage in plea negotiations. Only the District Attorney’s Office can do this. If the Detective says that he will “go easier” on you if you cooperate, he is not being truthful with you.

Representing People Investigated for Federal Arrest or Texas Charges

As a former prosecutor turned criminal defense lawyer with over 150 jury trials defending clients against charges brought by district attorneys and U.S. federal prosecutors in Dallas County, Tarrant County, and elsewhere in the State of Texas, not only do I bring years of experience to each case, I also dedicate 100% of my law practice to the defense of those being accused of a crime under Texas or federal law.

The thoughts and opinions expressed in this article are my own, based upon my years of education and real-life experience as a criminal lawyer practicing law here in Texas.

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About the Author:

Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for many years after first serving as a felony prosecutor for the Office of the District Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.