From FBI Investigation to Arrest: How a Case Moves.

FBI Investigation vs. Arrest: Understanding the Process

Many federal criminal investigations last for months or even years before anyone is arrested. Often, an FBI investigation could begin without you being aware that you are being targeted. Sometimes, agents will reveal the existence of a federal investigation during their interviews with suspected criminals. But, more often than not, when people realize that they are under FBI investigation, it’s because agents have knocked on their doors. During the course of an FBI investigation, agents collect evidence for the purpose of establishing probable cause. They use subpoenas, search warrants, records requests, video surveillance, wiretapping, interviews with witnesses and other suspects, and any other method that helps them gather information. With the information obtained during a federal investigation, the FBI can then determine whether an arrest is warranted. Being arrested does not prove the FBI has the evidence needed to convict you in federal court. In fact, many arrests are premature, and the FBI often only makes an arrest based on probable cause. While it may seem helpful to wait for the FBI to gather all evidence and establish probable cause before getting involved, that alone can be a mistake. Federal arrests leave you very little room to craft a defense. The more complex a case is, the longer it takes to build. Simple federal cases take the FBI less time to build. The FBI has a wide-ranging jurisdiction and investigations can take months, or even years, including those involving white collar offenses and drug trafficking. Federal jurisdiction begins when someone is suspected of committing a federal offense. A federal offense is generally an act that violates a federal statute. The vast majority of FBI investigations focus on these particular statutes. But, offenses that substantially affect interstate commerce fall under the federal government’s jurisdiction as well. Many crimes involving banks trigger federal jurisdiction because banks are federally insured. Any robbery of a federally insured bank is investigated by the FBI.

Can the FBI Arrest Me Before an Indictment?

Federal arrests occur after a grand jury has returned an indictment. When a grand jury indictment is returned, it will usually be followed by the court issuing an arrest warrant. A federal judge may issue an arrest warrant or order the defendant to appear before the court on a summons. Sometimes a defendant will waive indictment. In these cases, the court can decide to issue a warrant or summons. A complaint filed by the FBI with a magistrate judge may be the basis for a federal arrest as well. Under Rule 4, an arrest warrant can be issued on a sworn complaint if it establishes probable cause. In these cases, the arresting officer has the FBI agents who have investigated the crime. The rule allows the FBI to request that the magistrate judge issue a summons instead of an arrest warrant upon a complaint filed. This means the complaint must first establish probable cause. A federal judge may also issue an arrest warrant upon finding probable cause. This includes arrests without an indictment or complaint. If the FBI arrests someone based on probable cause, the FBI will then have to seek a federal indictment. To date, several federal appeals courts have found that law enforcement officers can arrest without a warrant when they are in public view and they have probable cause to believe that a crime is being committed. This is a Fourth Amendment exception. It is important to note that a federal agent may not arrest you solely based on reasonable suspicion. However, a federal agent can have a brief investigatory detention.

Are Arrest Warrants Similar to Search Warrants?

Both arrest warrants and search warrants are similar in that they both require probable cause. If the FBI wants to search for evidence in a specific place, they must seek a search warrant from a federal judge or magistrate. A search warrant requires probable cause to believe that evidence is in the place they are requesting to search. But there are differences between arrest and search warrants.

There are several Federal Rules of Criminal Procedure that apply to warrants. Rule 4 explains that an arrest warrant may be issued upon a sworn complaint. A complaint is a written statement made under oath by the prosecutor or a law enforcement official. With this complaint, the FBI can get a federal warrant. The rule also allows the magistrate judge to issue a summons to the accused instead of an arrest warrant. The complaint must establish probable cause before this can happen.

Do Federal Felony Charges Require an Indictment?

The Fifth Amendment of the U.S. Constitution requires indictment in many cases. Rule 7 of the Federal Rules of Criminal Procedure requires indictment for federal felony charges. This applies unless the defendant waives indictment. If a defendant waives his or her indictment, the defendant waives a right afforded by the Fifth Amendment. But, the defendant could still be charged with a federal felony.

Is an Indictment a Cause for a Federal Arrest?

After a grand jury returns an indictment, a federal judge may either issue an arrest warrant or a summons. Once again, an indictment is not the sole basis for a federal arrest. Probable cause is the standard needed to arrest. But, in federal crimes involving the Fifth Amendment, there must be an indictment before someone is charged with a felony. A grand jury determines whether there is probable cause for an indictment. Once this is done, the judge decides how to proceed.

What Rights Do I Have When FBI Agents Contact Me?

Can FBI Agents Force Me to Answer Questions?

When FBI agents contact you, they will often ask questions. But unless you are under arrest, these questions are voluntary and you are not obligated to answer them. If an FBI agent attempts to ask you questions, it is in your best interests to stop them and inform them that you are unwilling to answer questions without your lawyer present. When you refuse to answer questions, you are not being uncooperative; you are exercising your constitutional right to not self-incriminate.

Am I Protected Against Compelled Self-Incrimination?

Under the Fifth Amendment, you are protected against compelled self-incrimination. To use this right, you must clearly and unambiguously invoke it. If an FBI agent asks you questions and does not have the authority to force you to answer, then you are not subject to compelled self-incrimination. But, the moment they attempt to ask you questions, you may need to invoke your Fifth Amendment rights.

Am I Entitled to Miranda Warnings from FBI Agents?

Law enforcement is required to provide individuals with Miranda warnings before beginning any custodial interrogation. Miranda warnings inform you of your rights before the FBI asks questions. However, these warnings are not required in all contacts with the FBI. Miranda warnings are not required when federal agents ask voluntary questions because the person questioned is not in custody.

What Happens After I Invoke My Right to Counsel?

If you are subject to a custodial interrogation and you invoke your right to counsel, the FBI agent must immediately stop questioning you. This right can be invoked at any point during a custodial interrogation, and once you call on your lawyer to be present, you should not answer any further questions until a lawyer is present.

Is it Lawful to Provide False Information to an FBI Agent?

No, it is not lawful to provide false information to an FBI agent. Under 18 U.S.C. § 1001, knowingly making materially false statements or information is a federal crime. Although you are entitled to stop FBI agents from voluntarily interviewing you, you are not entitled to provide false statements. The best course of action is to inform the agent that you will not be answering any questions without your lawyer.

Can an FBI Agent Ask Voluntary Questions of a Person Who is Not in Custody?

Yes, FBI agents can ask voluntary questions of a person who is not in custody. This is a noncustodial interview, and it does not trigger Miranda warnings since the person being questioned is free to leave. Being aware of your rights and invoking them is extremely important for your legal protection.

Can I Refuse to Consent to a Search?

Yes, you can refuse to consent to a search. FBI agents have to obtain your consent or a search warrant from a federal judge or magistrate to conduct a search. If an FBI agent asks you to consent to a search of your phone, home, office, car, or anything else, it is in your best interests to refuse unless the agent has other lawful authority to search. Remember, any documents obtained from consenting to a search can be used against you in federal court.

Does Rule 41 Give FBI Agents Authority to Conduct a Search?

Rule 41 grants federal law enforcement authority to search for evidence of a crime with a warrant. The FBI can obtain a warrant by submitting an affidavit proving probable cause to a judge or magistrate. The agent must show that it is reasonable to believe that evidence related to the crime exists in the specific place they are requesting to search. If the judge or magistrate deems it reasonable to issue the warrant, the FBI can then use Rule 41 authority to conduct the search. If the agent is authorized to conduct a search under Rule 41, the agent must provide you with a copy of the search warrant and a receipt for any property seized.

What Does a Subpoena or Target Letter Mean?

A federal grand jury subpoena can demand you provide testimony, documents, or your business records. A subpoena can be issued for any of these, and you have to comply unless you have legal standing to challenge it. With a grand jury subpoena, you may be asked to produce:

• Financial records (e.g., payroll, loans, tax returns, financial statements, or business bank accounts)
• Electronic devices (e.g., computers, phones, or other digital storage devices)
• Correspondence (e.g., letters, emails, text messages, or voicemails)
• Contracts and other business documentation
• Any other documents relevant to the investigation

  What Does a Target Letter Mean?

  A target letter means that federal prosecutors believe that you are the target of their investigation. A target letter is not the same thing as an indictment, but it indicates that the prosecutors believe they have substantial evidence to support their prosecution of you. The U.S. Attorney’s Manual describes target designation and subject designation. As explained above, “target” designation means that the FBI has substantial evidence linking a particular person to a potential federal offense. “Subject” designation means that a particular individual is being investigated, but the evidence is not yet substantial. “Witness” means that the individual does not appear to be involved and has not been suspected of any crime. However, as the investigation proceeds, a person can move from being a witness to a subject or target, or vice versa.

  Can I Avoid Complying with a Federal Grand Jury Subpoena?

  How to Respond to a Federal Grand Jury Subpoena

  If you receive a federal grand jury subpoena, it is imperative that you promptly contact an experienced federal grand jury subpoena defense attorney to protect your interests. While, in most cases, you are required to comply with the subpoena, there are several exceptions. Our attorneys have successfully used the following defenses for our clients:

• Rule 17(c)(2), which allows the court to quash or modify an unreasonable subpoena upon motion and showing of good cause.
• The Fifth Amendment act-of-production doctrine, which allows for the withholding of documents subject to a federal grand jury subpoena.
• Attorney-client privilege, which can be a defense to a federal grand jury subpoena.

  Can the FBI Arrest Someone Without a Search Warrant?

  Yes, FBI agents can arrest someone without a search warrant if they have probable cause. The Fourth Amendment generally protects individuals from unlawful searches and seizures, and it generally requires the government to obtain a warrant before conducting a search or making an arrest. However, exceptions to this rule exist in certain scenarios. These include:

• Plain view
• Consent search
• Exigent circumstances
• Hot pursuit
• Terry stop
• National security
• Administrative or special searches

  What Deadlines and Release Decisions Follow a Federal Arrest?

  When Will I Have My Initial Appearance in Federal Court?

  If you are arrested, Federal Rule of Criminal Procedure 5 requires that you have your initial appearance promptly. County of Riverside v. McLaughlin, 500 U.S. 44 (1991), established that the general time limit for probable cause review is 48 hours. If a judge or magistrate refuses to let you go after this time limit, you can file a writ of habeas corpus to challenge the lawfulness of your arrest.

  When is My Preliminary Hearing?

  According to Federal Rule of Criminal Procedure 5.1, you will have a preliminary hearing at your initial appearance. Your hearing will take place within 14 days of your initial appearance if the judge or magistrate chooses not to release you. If the judge or magistrate allows you to go home on bond, the hearing will be within 21 days. After a grand jury returns an indictment, if you have been charged with a felony, then no preliminary hearing is required unless the defendant asks for one or if there is any delay in the indictment.

• The judge or magistrate will confirm the identity of the defendant.
• The judge or magistrate will inform the defendant of the charges against him or her.
• If the defendant is entitled to counsel, he or she will be assigned counsel.
• The judge or magistrate will determine whether to release the defendant on bond or to hold the defendant pending indictment.

  When Will I Be Indicted?

  Under 18 U.S.C. § 3161(b), if you have been arrested, the prosecutor has 30 days to either indict you or charge you by felony information. If the prosecutor chooses to file a felony information or indict you, you will be in court for your arraignment within five days. If you are not yet charged by felony information, the court will either release you on bond or hold you pending indictment. After a grand jury returns an indictment or if the prosecutor is unable to file a felony information within the 30-day timeframe, you should be facing a federal hearing on your detention.

  What Will the Federal Judge Consider When Determining My Release Status?

  When deciding your release status, the judge will consider the less restrictive conditions that are still sufficient to prevent the risk of flight. The other circumstances involved include:

• The nature and circumstances of the offense
• The weight of the evidence
• The history and characteristics of the defendant
• The danger to the community
• The strength of the government’s case
• The amount of bond set by the court in criminal cases involving monetary loss

  Can the FBI Arrest Someone and Not Decide to Release Him or Her?

  Yes, if you are not facing a federal felony charge, it is not unlawful to not grant bond. But, if you are charged with a federal felony, then a judge or magistrate cannot hold you solely because you can’t afford bond. Instead, they must release you subject to the conditions of the least restrictive conditions that are sufficient to protect the public and ensure the defendant’s return to court. Under 18 U.S.C. § 3142(c)(2), “No person who is otherwise eligible for pretrial release shall be detained solely on financial considerations.” Judges can use the Bail Reform Act or other laws, but they cannot hold a defendant just because you can’t afford bond.

  Why Is Waiting for Arrest a Defense Mistake?

  If you are in an FBI investigation or a grand jury investigation, you have time to address all subpoenas and target letters. By the time you get arrested, the prosecutors will have determined their next steps, and you may have missed the opportunity to protect yourself. Once you have an attorney on your side, there are several options you have to work with the FBI, federal prosecutors, and grand jury prosecutors.

  What Are My Rights and Privileges in a Grand Jury Subpoena?

  When you are under FBI or grand jury investigation, it is imperative that you obtain legal counsel to determine if your Fifth Amendment rights apply to the testimony you are requested to provide. With an attorney on your side, they can look at the subpoenas to find any flaws and request the prosecutor narrow the subpoena.

  What is a Proffer and How Can it Help My Federal Case?

  A proffer is a meeting with a federal prosecutor where the target of a federal investigation may make statements in exchange for certain conditions. These conditions can either be a benefit in a federal investigation or may harm your case. Our attorneys represent clients prepare a proffer statement, and we can assist our clients with selecting a time and place for a proffer session.

  Can I Get a Voluntary Surrender?

  If you are arrested, it can create a lot of media attention. To avoid this, an experienced defense attorney can ask the federal prosecutor to allow a voluntary surrender. If the prosecutor agrees, the FBI will arrange for your surrender. This removes some of the uncertainty and danger of a public arrest.

  Can a Target of an FBI or Grand Jury Investigation Get the Case Dropped?

  In some cases, the grand jury prosecutors may not have a clear case against you. After you or your attorney make a presentation to the prosecutors and they agree not to prosecute you, then you can avoid criminal charges. Sometimes, prosecutors will offer a non-prosecution agreement. This is an agreement that allows the target of an investigation to avoid charges if certain conditions are met. Our defense attorneys at Spodek Law Group, handle cases on behalf of business owners and executives.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.