Welcome back to Come Back With A Warrant podcast. I'm Brandon Dennitz. And I'm Monica Shack.
Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Welcome back to Come Back With A Warrant. I'm Monica Shack. I'm Brandon Dennitz.
And today, we will be talking about surviving a pre-arrest investigation.
This oftentimes comes up when someone's at work and they get a call from, usually, law enforcement, and that officer is interested in talking about something related to, potentially, a crime that someone was involved in. And that's usually when the first stage is when you're supposed to really call a defense attorney at that point.
Correct. And that's because law enforcement is beginning their investigation—continuing their investigation—by trying to get more evidence and contacting the potential suspects.
At least with that first initial phone call that someone gets, they do not know what the status of that investigation is. The people getting that phone call—the subject of the investigation—really only know what the officer is willing to tell them.
And officers are allowed to lie and kind of use trickery to confuse or mislead people to have conversations with them.
A lot of people don't realize that cases can be won and lost right here.
When you have the opportunity to intervene as a defense attorney at the investigation stage, that's one of the places you can be the most impactful: before the case has become an arrest, before there's been the need to speak to the state attorney's office about making a filing decision.
When it's just the investigation—the initial beginning—there are a lot of things that can happen.
I agree. And that is actually the first opportunity that our role as defense attorney can make an impact on the case, more so in the actual investigation.
For instance, if they're trying to retrieve a statement from our client, they usually introduce themselves from whatever unit they're involved in, so you kind of get an idea of what type of case they're investigating.
They don't usually disclose exactly what it is they're looking for. They'll be like, "Hey, we just have some questions. If you don't mind coming down to the station, we can just talk about it." It's super casual.
They try to be friendly because, at that point, they're not informing them that they are usually the subject of an investigation.
That information usually comes out when they are already at the station or in front of the police in person, and then things start snowballing. They can start saying, like, "We have this video of you," even if it's not true, because they're able to be dishonest and use whatever they get out of that dishonesty or misrepresentation against the person.
Whenever you get an attorney involved, that's when we're able to be like, "Do you have a warrant?" "We're invoking our rights." "We're not gonna be giving statements."
When we talk about the rights that we're invoking, as defense attorneys at this point, we're invoking our client's Fifth and Sixth Amendment rights. We don't want them saying anything: the right against self-incrimination, and the right to counsel.
We explain to these officers that, at this point, we are involved, and they can direct all communication to us.
Then we try to figure out what's going on. We can ask questions and be frank with law enforcement. We can share things we want to. We can withhold information we want to.
Often, it's like two dogs at a park sniffing each other and trying to figure out what's going on.
For clients in this process, it’s so important they get to us early. We can tell them, "Don't have these conversations—at least without us present."
They're building a case using you. Either they have the case already built and they want the cherry on top, or they don't have any case built and they're using you to set the foundation.
We don’t want our clients being the one trying to figure that out.
And once your attorney steps in, anything we say, even though we are their voice, cannot be used against our clients. That’s another benefit: the attorney can be a shield between you and law enforcement or the government at this stage.
Even if they apply for search warrants despite our efforts, having an attorney means we can review the warrant and address issues with it.
Sometimes law enforcement will give a heads-up about warrants so they don’t raid your client at work.
I also find there’s a switch with law enforcement once I get involved. It becomes less aggressive because they understand the client hired counsel and procedures will be checked.
Law enforcement can be friendlier with defense attorneys because there are times we need to coordinate something: a turn-in, evidence being turned over, etc. That makes the process less hostile and a lot less dangerous.
If you can coordinate when your client is going to be turning themselves in, that avoids an arrest warrant being served and something bad happening during the arrest.
We’ve had cases where arrest warrants are being served and things happen, other people get charged. It can get out of hand.
Looking at this from law enforcement’s side: investigations start with a complaint, allegation, or information—911 calls, neighbors, etc. They do their investigation: check credibility, look at evidence, surveillance, talk to witnesses.
Then comes interaction with our client. By then, anything could be happening: they might be ready to send it to the state attorney’s office, ready to arrest, or they might just have one person's word and want your client's statement to see if it’s he-said/she-said.
When they are at the stage of ready to arrest, coordinating a turn-in can sometimes result in a notice to appear instead of custody, especially for misdemeanors or lower-level felonies with minimal history.
It’s just so much more beneficial to the client if they seek counsel from the jump.
In public defender practice, you’re appointed at first court date, so you’re not involved pre-arrest. In private practice, you learn how important pre-arrest involvement is, because state attorneys usually aren’t involved pre-arrest unless there’s a scene call-out or warrant work.
As a prosecutor, I did see parts of pre-arrest during on-call rotations. Officers would call after hours seeking a search warrant or arrest warrant. The officer drafts it, prosecutor reviews/approves, and a judge signs—often remotely now.
As a defense attorney, if I can get involved pre-arrest and speak to officers, there are occasions where information I provide leads to my client not being arrested at all. Charges may not occur.
Leaving the scene of an accident is an example where heavy pre-arrest involvement can prevent charges: conversations about the owner of the vehicle, who was driving, etc., without the client giving a statement.
Best case scenario is the client never sees the inside of a courtroom or jail.
Even if an arrest happens, coordinated surrender can later help in bond arguments: you were cooperative while invoking your rights.
Coordinating a turn-in avoids a dangerous, chaotic arrest. You can also mentally prepare your client and reduce the risk of extra charges like resisting.
Nothing you say during an arrest will stop the arrest. You’re more likely to give them evidence or new charges: resisting, false name, etc.
Common mistakes during a pre-arrest investigation:
1) Talking to law enforcement.
The most anyone should say is: "Can I call you back? What’s your name, badge number, and phone number?" Then hand it to your attorney.
You cannot talk your way out of these situations. You can talk your way into trouble, but you cannot talk your way out of it.
If officers decide it’s time to arrest, it’s happening. Be respectful. Let your lawyer handle it.
2) Consenting to searches.
Especially phone searches. Don’t unlock your phone. Don’t consent without a warrant. If they have a warrant, let counsel review it.
Phone warrants can be brutal—people often don’t get their phone back until the end, after extraction.
Also: don’t delete evidence once you know you’re being investigated. That can become tampering and create new felony exposure. Technology and cloud backups make deletion risky anyway.
3) Contacting other people involved.
Assume other phones may be monitored, or people may snitch.
Attorney-client conversations are protected. Conversations with friends are not.
4) Posting online.
Stop putting your business on the internet—stories, close friends, any platform. Social media gets pulled into discovery. Ring cameras, screen recordings, police monitoring—everything can come back.
Photos with guns, drugs, cash: it becomes evidence, makes mitigation harder, and can fuel “consciousness of guilt” arguments.
Rule of thumb: never commit two crimes at once.
Also, be honest with your lawyer. If you’ve posted things, tell counsel so they can plan accordingly.
Another mistake is ignoring police entirely.
It’s not the worst mistake compared to talking, but it can make the process harder. Police can continue investigating whether you talk or not.
But never let “we just want your side” pressure you into talking. Believe them when they tell you anything you say will be used against you.
Big takeaway:
If you get a call from police or you’re aware you’re being investigated, hire a lawyer immediately.
Get the officer’s info, say you’ll call back, then give it to your lawyer. Let your lawyer tell them to come back with a warrant.
The objective of law enforcement is to make an arrest and close the case. Your lawyer’s job is to protect you and your rights.
That wraps up today’s episode.
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