FAQ: Criminal Defense
Frequently Asked Questions
John Cannon has helped me through the hardest time in my life. He helped me through my divorce and custody case. He truly cares about his clients and it made me so happy he always put my daughter first and wanted what was in her best interest as a child. He is very sharp and resourceful and he has been very attentive and responsive to my needs, John is very polite and professional and he always has a great attitude. John always took the time to go over everything and explain everything in depth. I’ve enjoyed working with John and his team and would recommend him to other clients.
Arrest in Oklahoma
Reasonable articulable suspicion, commonly called “articulable suspicion” is the minimum threshold of evidence required for law enforcement or police to begin an investigation. Police have sufficient reason to interact with a criminal suspect when they have a legitimate reason to suspect the commission of a crime. However, police must be able to “articulate” or explain their reason.
In Oklahoma, this initial interaction must be brief in duration and limited in scope to the reasonably suspected criminal conduct. However, any criminal conduct in “plain view”, seen with the police officer’s own eyes, can be investigated. Additionally, police cannot detain a suspect for a long period of time on mere “articulable suspicion.” Probable Cause is required to make an arrest in Oklahoma and anywhere else in the United States.
The United States Constitution discusses Probable Cause in the 4th Amendment, change, to the Constitution. Probable Cause is the base evidentiary requirement to make an arrest, conduct a search, issue a search warrant, issue an arrest warrant, or seize property.
In order to arrest a suspect, police must have “specific facts” leading a reasonable person to believe a crime has occurred. Arrests cannot be made on suspicion alone.
In order to search a location, law enforcement officers/police must have sufficient facts and/or evidence that a crime has occurred in that location. In order to obtain a warrant, the search warrant must list a particular place and reason why a search should be allowed. There is a specific prohibition in the 4th Amendment of “General Warrants.”
In order to seize property, law enforcement officers/police must be able to articulate, explain, their belief a particular item is contraband, illegal.
In order to issue a search warrant, law enforcement officers/police must present a detached, uninterested, judge a crime has occurred in the past at a specific location or evidence of a previous or ongoing crime exists at a specific location. The warrant is invalid, unless it states the location to be searched and the specific items to be seized.
Police do not have the authority to arrest or seize persons or things, unless a reasonable person viewing the information available to the officer would believe a crime has occurred.
Police may arrest a citizen for a misdemeanor without a warrant, if the misdemeanor occurred in their presence. The most common example is the offense of driving under the influence of alcohol (“DUI”). In a DUI arrest, an officer does not need a warrant to stop a driver the officer suspects of driving under the influence of alcohol nor does the officer need a warrant if he/she believes the driver committed a DUI. A police officer may arrest an individual for DUI or any other misdemeanor offense, for which the officer believes probable cause exits.
Police may arrest a person for a felony without a warrant, which is committed in their presence. Police, all law enforcement, are legally able to stop a felony crime in progress and render aid to any and all victims in a felony crime. The assistance of police in felony situations, includes arresting the felony suspect. Police are able to pursue and arrest a fleeing suspect that is the police officer reasonably believes committed a felony crime.
When police investigate a felony crime and plan a felony arrest ahead of time, during or after an investigation, they must obtain an arrest warrant from a judge prior to arresting a felony suspect. A Judge in Oklahoma will not sign an arrest warrant unless the judge believes probable cause exists to make a felony arrest.
Police must use only the force necessary to effectuate, make, an arrest, when executing an arrest warrant. Police are required to allow a peaceful surrender prior to engaging in a tactical or physically violent arrest, even in violent felony crimes. Additionally, police must identify themselves to the person under arrest and state the authority for their arrest.
“No Knock” warrants are the exception, not the rule. This type of warrant refers to the manner officers can effectuate, execute, the arrest warrant. In a “No Knock” arrest warrant is reserved for “exigent circumstances”, meaning police have a reasonable belief the suspect will destroy evidence of their crime, flee the scene, poses an unreasonable danger to officers or others, if police announce their presence prior to making the arrest.
“Officer safety” is unfortunately an overused basis for requesting a “No Knock” warrant; however, judges in Oklahoma are tasked to protect the citizens. Additional the war on drugs has led to an exponential growth in requests and grants of “No Knock” warrants.
Police must present the information discussed above to a siting judge in the jurisdiction the warrant is sought, i.e. an Oklahoma County judge for a warrant in Oklahoma County. It may be requested over the phone; however, it must be reduced to writing and filed in the appropriate courthouse.
Police must have evidence amounting to at the very least probable cause to make an arrest, seize property, or search property, including a home, a vehicle, or container. Police cannot request a warrant based solely on their opinion; there must be evidence of a crime.
Pursuant to statute an individual may resist an illegal arrest; even, if it causes harm to police; however, you should never resists arrest by a uniformed officer. You will have the opportunity to contest the legality or legitimacy of an arrest at a later time. Resisting arrest, even an illegal arrest will only result in your being physically injured or criminal charges based on resisting arrest. Resisting arrest can result in physical harm to you or a loved one, it may even result in your being killed by law enforcement officers.
YES, you do not have to respond to an attempted conversation with police. However, police may initiate a “Terry Stop” in limited circumstances. The United States Supreme Court in Terry v. Ohio, 301 U.S. 1 (1968) held that police may “briefly detain” individuals in the absence of probable cause. Additionally, pursuant to Terry police may conduct a brief, non-invasive, pat-down or search of a person’s outer clothing to ensure the person does not pose a threat to the officer’s safety or have a weapon, if there is “reasonable articulable suspicion” the person may have a weapon or pose a threat.
In Oklahoma, misdemeanor crimes are a lower category of criminal offense than a felony crime. Misdemeanor crimes in Oklahoma may carry up to one year, 12 months, in jail, but may carry less potential punishment than one year in jail. Additionally, misdemeanor crimes carry a small potential fine. Conversely, felony crimes in Oklahoma carry more than a year in prison and may carry up to life in prison or death in capital murder cases. Some felonies carry mandatory minimum sentences; however, most felony crimes in Oklahoma are eligible for probation.
Yes, in certain circumstances police may arrest you beyond their jurisdiction. Although jurisdiction is a very important legal principle in Oklahoma criminal law; so is public safety. Police in pursuit of a fleeing criminal suspect may following that individual into another jurisdiction to make an arrest. Additionally, some law enforcement agencies, such as the Oklahoma Highway Patrol, exercise very broad jurisdiction.
I have had cases dismissed based on the issue of an officer not have jurisdiction to arrest an individual; however, this is the exception, not the norm.
No, federalism dictates that the federal government exercise limited jurisdiction, which means federal offenses are a violation of Federal Law, such as crimes that cross state lines. Alternatively, the State of Oklahoma exercises broad jurisdiction over any offense occurring in the State of Oklahoma. Please see the pages concerning State Crimes and Federal Crimes for more information.
Exercise your rights! Specifically, your 5th Amendment right to remain silent, don’t speak to police and your 6th Amendment right to an experienced Oklahoma criminal defense attorney. Never tell the police “your side of the story” until speaking to your retained criminal defense attorney.
Decline to meet law enforcement or detectives for an “interview” or questioning, until you appear with your Oklahoma criminal defense attorney.
When a warrant is pending for your arrest you should contact your Oklahoma criminal defense attorney to coordinate or arrange your surrender. You should comply with the arrest process, but you should refuse to speak to police. Remain completely silent concerning the facts of your case and your innocence or guilt.
Wrong, police can lie to a suspect and it is an important part of their investigations. Police often tell criminal suspects they are “not a suspect” in order to gain the trust of a suspect and obtain incriminating information. You cannot know the purpose behind police questions; however, you can protect yourself by remaining silent regardless of the subject and exercise your right to a criminal defense attorney.
No, you do not have the right to speak to or meet with your criminal defense attorney prior to being arrest. You only have the rights discussed above, to remain silent and to speak to your attorney prior to being interrogated.
Bond and Bail in Oklahoma
Bail is the money a criminal defendant or his/her family must pay to get out of jail, while the case is pending. Bond is posted on a criminal defendant’s behalf. A bond company or bail bondsman will post a defendant’s bond and will be responsible for the full bond, if the defendant fails to appear for court.
Cash bond is what it sounds like, cash posted to the court or jail for the full amount of bail in a criminal defendant’s case. It is not secured by equity. Once the case is complete, regardless of the outcome, the full amount of the cash bond is returned to the defendant or whoever posted the cash bond.
Property bond is a type of bond that is posted based upon real property, such as a house, or tangible property, in order to obtain pre-trial release. Generally, property bonds must be substantially higher than the listed bond amount.
A bondsman, bail bondsman, bail bondsperson, bond dealer, or bail bond agent is a person, agency, or company that will provide a surety and pledge money to ensure the appearance of a defendant at his/her court appearances.
A person already under arrest may post a cash bond or hire an bondsman/bail bond company to get out of jail. Your criminal defense attorney can assist you in this process.
Condition bond is an agreement between a criminal defendant and the judge or the court to remain out of custody pre-trial based upon complying with a number of conditions, hence conditional bond.
In Brill v. Gurich, the Oklahoma Court of Criminal Appeals citing Petition of Humphrey discussed the guidelines to be considered by Courts when determining the amount of bail.
1. The seriousness of the crime charged against the defendant, the apparent likelihood of conviction and the extent of the punishment prescribed by the Legislature;
2. The defendant’s criminal record, if any, and previous record on bail if any;
3. His reputation, and mental condition;
4. The length of his residence in the community;
5. His family ties and relationships;
6. His employment status, record of employment and his financial condition;
7. The identity of responsible members of the community who would vouch for defendant’s reliability;
8. Any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear.
Judges in Oklahoma are tasked with considering the above listed factors in order to determine bond in criminal cases and the appropriate amount of bond.
Judges in Oklahoma consider a number of factors in determining whether or not to grant bond. The two principal concerns are the following: public safety and ensuring the defendant appears for court. Defendants in almost every case with almost every type of charge are granted bond, except murder, manslaughter, and some other serious charges.
Sheriff’s schedule is a predetermined list of the amount of bond for every offense. Most counties have a schedule of bond, which is used prior to formal charges being filed and before a defendant goes before a judge in Oklahoma. The amount of bond set by the sheriff’s schedule can be reduced by your criminal defense attorney filing a motion for bond reduction. You should contact an experienced criminal defense attorney to assist you and explain the considerations in bond.
Once a warrant has been issued for your arrest you should contact a criminal defense attorney to explore your options for surrender before you are arrested. You can search for Oklahoma state warrants by using the oscn link on my
Criminal Court Process in Oklahoma
An indictment is a formal accusation that a defendant has committed a crime, which is used only used in federal court in Oklahoma. Usually, a federal indictment means a grand jury has determine sufficient evidence exists to indicate probable cause exists to believe the subject has committed a federal crime.
Arraignment is the point in the process when a criminal defendant is formally advised of the charges filed against him or her by the prosecution. Additionally, the criminal defendant is required to enter a plea to the charges. Charges can be added to your case after arraignment; however, the prosecution must file a motion and be granted leaved by the court in order to file charges after formal arraignment.
Formal arraignment is the point your case is transferred from the special judge or magistrate judge to an elected district judge with total authority to hear your criminal felony case. Up until formal arraignment the prosecutor can add or amended charges to your criminal case, which affect your bond and potentially cause you to be booked into jail until you are able to post the bond for your new charges. It is important to contact an experienced criminal defense attorney to ensure you understand this process and to how charges may or may not be added to your case, in order to prepare you and your family for this prospect.
You do not have to hire a criminal defense attorney before arraignment. In fact, you never have to hire an attorney at all. It is in your best interest to retain an experienced Oklahoma criminal defense attorney as soon as possible to begin building your defense and to show the government why you should receive the best treatment or consideration in your case.
The burden in a criminal case is the highest in any court in the United States, beyond a reasonable doubt. The reason this burden is so high is our country values freedom beyond any other interest or right. The burden to take someone’s child is substantially lower than beyond a reasonable doubt.
What is reasonable doubt mean? In Oklahoma state court judges and lawyers are prohibited from defining reasonable doubt; however, the principle comes directly from the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is should not be taken lightly. Your chosen criminal defense attorney’s ability to explain or emphasize this high burden to a jury is an important step in your road to freedom or exoneration.
The state or government is represented by prosecutors at each level of the criminal justice system. In federal court, Assistant United States Attorneys represent the government. In state court, Assistant District Attorney represent the government. Finally, at the local level, city or municipal attorney represent the government.
Prosecutors are responsible for all aspects of criminal prosecution from reviewing potential cases with police or investigators, to decided what, if any criminal charges to file, to developing the case, and eventually resolving the case with criminal defense attorneys or trying the case in both jury and bench trials.
A motion, as the word implies, is simply one party, either the prosecution or the defense, asking or “moving” the court to do or decide something in the criminal case. Motions are filed with the court clerk in the court your case is pending and are decided by the judge over your case once the other side has the opportunity to respond to your motion.
Motions are a very useful tool in criminal defense in Oklahoma. They allow your criminal defense attorney to test the strength and legality of the prosecution’s evidence before trial. Motions allow your criminal defense attorney to identify and limit the issues to be decided at your criminal trial. Motions allow your criminal defense attorney to challenge the conduct of police and law enforcement as well as compel officers and agents to testify in court before trial, which may give your criminal defense attorney the opportunity to identify weaknesses in the prosecution’s case, credibility issues with government witnesses, and the ability of government witnesses to testify in court. A criminal defense attorney able to skillfully craft, draft, and argue motions plays a major role in the success of your criminal defense.
A plea bargain is an agreement entered into between a criminal defendant and a prosecutor. In exchange for the defendant’s agreement to enter into a guilty plea or no contest plea (discussed below), the prosecution will agree to a variety of one or more of the following: dropping one or more criminal charges, reduce the seriousness of one or more criminal charges, or recommend a specific sentence to the judge.
Well over ninety-five percent of criminal cases are resolved by some type of plea agreement; however, the quality of the agreement you reach and the speed, which you are able to work through the criminal process is largely affected by the caliber criminal defense attorney you hire in your case.
As discussed in more depth on my Diversion Program page, diversion programs are a form of sentence or probation, in which a criminal defendant participates in or pleas into a treatment or rehabilitation program, to address an issue leading to the arrest or criminal act, while avoiding prison, a felony conviction, a misdemeanor conviction, or the negative impacts on a person’s record.
Guilty pleas in Oklahoma have three basic elements. First, the court governing the criminal case has jurisdiction to hear the case or accept the plea. Second, the defendant must be legally and mentally competent to decide to enter a guilty plea in his or her criminal case. Third, the decision to enter a guilty plea must be knowingly and voluntarily made by the defendant. Without all three elements, the judge will not accept a guilty plea. It is important to work with an experienced criminal defense attorney in order to ensure you understand everything that goes into a guilty plea and the potential positive and negative outcome of such a decision.
A No Contest plea or Nolo Contendre plea comes from the Latin term, “I do not wish to contend”. This type of plea has the same effect as a guilty plea; however, a defendant admits no guilt in the alleged criminal act or criminal acts. Basically, a defendant is stating the government or prosecution possession information, which may be sufficient to convict them at trial and they are electing to accept the government’s offer instead of tempting fate in a criminal jury trial.
An Alford plea is a form of guilty plea where the defendant maintains his or her innocence, but still receives the agreed sentence. Although similar to a no contest plea there are important distinctions that should be explored with an experienced criminal defense attorney.
Alford pleas are used in Oklahoma, but rarely agreed to by criminal prosecutors. You should contact an experienced criminal defense attorney to explore this option in your case.
Probation is a delayed or suspended sentence as part of punishment in a criminal case in Oklahoma. Instead of being sentenced to prison or jail time, the individual will be required to participate in probation, including seeing a probation officer and abiding by potentially a number of conditions, including but not limited to: drug testing, community service, narcotics anonymous or alcoholics anonymous meetings, drug treatment, mental health treatment and a number of other conditions. Upon violating a term or probation or committing a new crime, a person can be sentenced to the prison or jail for the entire length of their original sentence.
Parole is simply the portion of a sentence served after release from prison, which is served in the community and consists of participation in a government supervision program and often special terms of parole, including drug testing, housing requirements, and employment. Parole is a privilege, not a right. It is important to seek legal counsel, if you or a loved one is seeking parole in Oklahoma.
The most obvious difference between jail and prison is the length of sentences or stays in the two facilities. Jails are run by local government, generally through the county sheriff department and are designed to hold defendants and inmates awaiting trial in state court criminal proceedings. Prison is for those already convicted at jury trial or sentenced by a judge to a length of incarceration greater than one year.
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