Arrest, Search, and Seizure

Basic Peace Officer Role and Citizen Rights Regarding Arrest

• The peace officer and citizen rights regarding arrest is the core of the chapter.
• Terminology associated with arrest is to be defined.

Terminology Defined

• Proof Beyond Reasonable Doubt: PC 2.01
• Probable Cause is defined differently for search and arrest because different information types are required in each instance.

Probable Cause to Arrest

• Brinegar v United States, 338 US 160 (1949) sets the standard.
• Exists when facts known to the officer and reasonably trustworthy information would warrant a reasonable person to believe a crime has been committed.

Probable Cause to Search

• Carroll v. United States, 267 U.S. 132 (1925) sets the standard.
• Exists when facts known to officers and reasonably trustworthy information lead a reasonable person to believe seizable property is in a particular place or on a person.
• The probable cause test needs to show the officer's knowledge is enough to make a reasonable person believe a suspect has committed, is committing, or is about to commit a crime.
• Beck v. Ohio, 379 U.S. 89 (1964) notes in obiter dicta that Fourth Amendment protection would evaporate and people would only be secure at the police's discretion if subjective good faith sufficed.

Reasonable Suspicion

• Mere suspicion is a hunch/intuition but insufficient proof in court.
• Criminal Procedure for the Law Enforcement Professional, 11th edition, Ferdico, Fradella, and Totten, Wadsworth Cengage Learning, 2013 is used.

Sokolow Standard

• US v. Sokolow, 490 US 1 (1989) says reasonable suspicion relies on totality of circumstances and is less burden than probable cause.
• Exception: PC 2.02
• Reasonable Belief: PC 1.07(a)(42)

Probable Cause Scenarios

Scenario #1

• An officer responds to a call about a suspicious subject still at the scene of a suspected burglary.
• The subject is nervous, has blood, and is in possession of burglary tools.
• A nearby business has broken glass.
• Articulating the need for probable cause is required.

Scenario #2

• An officer sees a subject looking into car windows in a store parking lot but not entering, appearing to check if unlocked.
• The subject might be a juvenile, the time is 1:00 PM, and school is out.
• Articulating facts for reasonable suspicion is required.
• Location and time alone don't justify suspicion, other factors are needed.
• The officer needs to know the limits of what actions are possible with reasonable suspicion.
• Detentions must end when suspicion subsides (or reasonably ought to), including when questions don't raise suspicion.

Scenario #3

• At 2200 hrs, an officer sees a male running from a gas station known for beer runs with two 30-packs of beer, driving off without traffic violations.
• A traffic stop is conducted two blocks away.
• The male claims to have lost the receipt, so the officer wants to take him to the store to verify, but he objects and is placed (unhandcuffed) in the back of the patrol car.
• Being able to articulate if a traffic stop is possible in this case, if/when the driver was arrested, and what the officer should have done is required.

Scenario #4

• A customer reports a subject with a holstered handgun reading a newspaper at a coffee shop back table makes them alarmed.
• Differentiating response between calls reporting a crime and those which do not is important.
• Weighing citizen rights against safety when someone has a gun matters.
• Detaining requires tactical approaches when dispatched to a lawfully carrying subject.
• Consensual encounters turning into detention or arrest are possible, e.g., criminal trespass.

Interactions Between Peace Officers and Persons

• Three classifications exist.

Consensual Encounters

• Peace officers can approach and ask questions if it is understood people can refuse to identify, cooperate, answer, and can walk away per Florida v. Royer, 460 U.S. 491 (1983).

Investigatory Stops/Detentions

• Temporary seizure for investigation based on reasonable criminal activity suspicion per Terry v. Ohio, 392 U.S. 1 (1968).

Arrests

• Taking people into custody for charging with a crime requires probable cause per U.S. v. Mendenhall, 446 U.S. 544 (1980).

Actions With Mere Suspicion

• Computer checks of license plates and surveillance are permitted.
• Officers can observe suspected people/activity to uncover additional facts amounting to more than mere suspicion.
• Officers can initiate police-citizen encounters if people understand they do not have to identify or answer and can leave at any time.
• An officer's objective is to find articulable facts that rise to reasonable suspicion or probable cause.

Necessary Conditions for Arrest

• Intent - A peace officer's purpose or intention to take a person into the custody of the law.
• Authority - The peace officer's arrest must be made under real authority; the officer must be authorized to make the arrest and it must be supported by probable cause
• Actual seizure – The person arrested is taken into custody either by physical force or by submission to assertion of authority.
• Understanding – by the person to be arrested of the officer's intention to arrest.
• Define Investigative Detention (Terry v. Ohio, A.S.S. Outline and IRG) is critical
• Define when a person is arrested - CCP 15.22
• Define Constructive Custody - CCP 11.21
• Define Restraint - CCP 11.22
• Define Custody - PC 38.01
• Identify the duties of arresting officer and magistrate – CCP 15.17
• Discuss Offense within view - CCP 14.01
• There are limited conditionalities to be met for either a peace officer or “any other person" to make a warrantless arrest, and the conditions for only peace officers to make a warrantless arrest.
• Discuss Within view of magistrate - CCP 14.02.
• Identify Authority of peace officers - CCP 14.03.

Arrest Justification

• Peace officers must be able to articulate specific facts and circumstances to justify an arrest regarding “suspicious places “and “circumstances”, per Dyar v. State, 125 SW3d 460 (Tex. Crim. App. 2003).
• Dyar v. State provides detailed explanation of the statute.
• Options in Lieu of Arrest for Public Intoxication - CCP 14.031
• Discuss When felony has been committed - CCP 14.04
• Identify Rights of officer - CCP 14.05
• In Payton v. New York, 100 US 1371 (1980) the court found that with the exception of exigent circumstances, a peace officer may not make a warrantless entry into a suspect's home to make a routine felony arrest.
• Discuss Arrest by peace officer from other jurisdiction - CCP 14.051
• Discuss Must take offender before magistrate - CCP 14.06
• Identify Mandatory Arrest Authority - CCP 14.03(b)
• Discuss Violation of a Protective Order in the officer's presence
• Discuss Preventing the consequences of theft – CCP 18.16
• Discuss Uniform Criminal Extradition Act - CCP 51.13, Sec. 14
• Discuss Diplomatic Immunity- 22 USC 254 Diplomatic Relations Act
• Discuss Privilege of Legislators - CCP 1.21

Arrest Without Warrant

• An officer may arrest for an offense where probable cause leads the officer to believe it is occurring or occurred.
• Court(s) decide if probable cause supports arrest/search.
• Courts examine the totality of the circumstances surrounding the seizure or detention to decide if facts/circumstances satisfy the Fourth Amendment.
• The court only considers information known to the officer at seizure/search time.
• Evidence found post-arrest/during search cannot prove probable cause.
• U.S. Supreme Court case Gates states probable cause is a practical, non-technical conception based on probabilities, factual and practical considerations of everyday life (reasonable and prudent peace officers), not legal technicians.

Custodial Statements

• Peace officers must respect the right against self-incrimination as constitutionally protected in the Fifth Amendment.
• Advice to persons from law enforcement in custody prior to interrogation must be clear that the arrestee has the right to remain silent and that anything they say can and will be held against them in court.
• These Miranda warnings also require peace officers to advise persons in custody prior to interrogation that they have the right to an attorney, and that if one cannot be afforded, one will be appointed to represent them, per Miranda v. Arizona, 384 U.S. 436 (1966).
• Read/translate Miranda rights using an interpreter, if needed, to ensure understanding when waiving, per local agency policy.
• Interrogations stop if persons state their right to silence.
• Interrogations stop if persons ask for an attorney until one is present, or after a fourteen-day break in Miranda custody per Maryland v. Shatzer, 130 US. 1213 (2010).
• CCP 38.22 lists additional requirements for using statements made.
• Creager v. State, 952 SW2d 852 (Tex. Crim. App. 1997) provides additional information.

Arrest Warrant: Basic Criteria

• Arrest under warrant duties are critical
• Warrant of arrest - CCP 15.01
• Requisites of warrant - CCP 15.02
• Magistrate may issue warrant or summons - CCP 15.03
• Warrant extends to every part of the state - CCP 15.06
• Warrant issued by other magistrate - CCP 15.07
• How warrant is executed - CCP 15.16
• Duties of arresting officer and magistrate - CCP 15.17
• Arrest for out-of-county offense - CCP 15.18
• Notice of arrest - CCP 15.19
• Duty of sheriff receiving notice - CCP 15.20
• Prisoner discharged if not timely demanded - CCP 15.21
• When a person is arrested - CCP 15.22
• Time of arrest - CCP 15.23
• What force may be used - CCP 15.24
• May break door - CCP 15.25
• Authority to arrest must be made known - CCP 15.26
• Notification to schools required - CCP 15.27
• Steagald v. United States, 101 US. 1642 (1981) limits execution of third party arrest warrants.

Warrantless Search: Basic Criteria

• Warrantless Search Case Law
• Probable Cause and Exigent Circumstances
• Brigham City, Utah v. Smart, 126 US 1943 (2006) says breaking up a violent fight qualifies as exigent circumstances allowing warrantless dwelling entry
• Kentucky v. King, 563 US 452 (2011) stipulates peace officers cannot create the exigency by engaging/threatening conduct violating the Fourth Amendment.

Warrantless Search: Scenarios

• Scenario #1:

• Assess exceptions to warrant requirements, i.e., consent vs exigent circumstances consent.

• An officer arrives at a residence to arrest a subject on a criminal warrant and secures them outside in a patrol car.

• Another officer asks the subject for consent to search the residence, the subject grants permission, and the other officer searches as the subject is secured in the vehicle while in police custody.

• Scenario requires students to understand that freely given consent needs to be secured, and if reasonable people might have felt obligated.

• The student should be able to articulate that consent can be withdrawn (to an extent.)

• E.g.*, the subject must be allowed to accompany the officers conducting the search in an area where they can tell the officer to stop the search

• Despite written consent being superior to verbal, written consent can still be challenged.

• E.g.* leaving the subject in the car during the search could still make written consent invalid.

• Scenario #2:

• An officer gets dispatched to a family fight and is told a bag of cocaine is in the kitchen cabinet.

• The wife grants consent for the officer to search the drawer while her husband is still at the scene and being interviewed in the other room.

• Assessment is conducted to identify who grants it, e.g., whether a spouse has a right to grant permission.

• E.g.* community property (can one spouse have an expectation of privacy from the other spouse).

• Discuss changes if scenario is a parent/child (can a parent grant over the objection of a child).

• Student define consent for other special circumstances.

• E.g.* landlord/tenant.

• Scenario #3:

• An officer is dispatched to a 911 hang up at a residence around midnight on a Saturday and a 7 year old girl is alone at home.

• The officer smells the strong odor of marijuana when the girl opens the door and the girl offers that the officer that her mom has been gone for at least 3 hours, and that she dialed 911 accident while trying to contact.

• Student should be able to articulate if they can enter the residence with or without the child's consent.

• Student should be able to articulate what they can and cannot do inside the home with only the child present.

• Student should be able to explain what can be seized under plain view (needs lawful right to be there, apparent contraband).

Exigency

• Rights of Officer (CCP 14.05):
• Lawful arrests without a warrant permit adopting all measures as if under warrant.
• Officers making an arrest without a warrant cannot enter a residence to make the arrest unless: (1) a person who resides in the residence consents to the entry; or
  (2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.
• Fresh pursuit means a pursuit without unreasonable delay by an officer of a person reasonably suspected of a felony: CCP 14.051.
• A peace officer from another state for felonies may continue pursuit into this state and arrest the person. United States v. Santana, 427 U.S. 38 (1976) applies.

Scenarios

• Scenario #1:

• An officer sees someone under 17 drinking beer after curfew at 2:00 A.M.

• The subject runs to an unlocked apartment.

• Student should articulate if the entry is reasonable considering the offenses are classified as misdemeanors and not felonies.

• Entry into a residence can be unreasonable even if the door is open.

• Scenario #2:

• An officer chases an armed robber and after falling is replaced by a fellow officer.

• The subject runs into an apartment and closes the door.

• Student should define continuous pursuit: Is the initiating officer required to pursue to make forced entry permissible, or only continuous pursuit of armed robber?

• Scenario #3:

• An plain-clothes officer sees subjects in an apartment weighing what seems to be drugs through slightly open apartment drapes.

• Student should articulate the officer's probable cause quality.

• E.g.*, is seeing a substance superior to dispatch about a narcotics dealing?

• Student discusses differences in the likelihood of evidence being destroyed; ability to destroy does not equal likelihood.

• E.g.* drug dealer unaware of police unlikely to destroy, compared with a narcotics detective leaving to get a warrant.

• Scenario #4:

• An officer gets dispatched to a family violence call, knocks, gets no answer, and hears screaming.

• Students should articulate why an officer can enter a residence to prevent violence.

• Students should describe permissible actions after entry and taking of offenders. Exigency justifies entry but further presence can be unlawfully continued.

• Scenario #5:

• An officer is dispatched to a suicidal subject who took pills and does not want to live anymore.

• Upon arrival, the unresponsive subject is on the floor.

• Student should delineate search right limitations.

• E.g.* looking for pill bottles and areas related to a need for medical emergency.

• Student should articulate search area range based on emergency.

• E.g.* gas leak or elderly fall victim.

Search Warrant: Basic Criteria

• Search warrant - CCP 18.01.
• Sealing of Affidavit – CCP 18.011.
• Grounds for issuance - CCP 18.02.
• Issuance of search warrant to photograph injured child - CCP 18.021.
• See also Family Code 58.002.
• Search warrant may authorize arrest - CCP 18.03.
• Contents of warrant - CCP 18.04.
• Warrants for fire, health, and code inspections - CCP 18.05.
• Execution of warrants - CCP 18.06.
• Days allowed for warrant to run - CCP 18.07.
• Power of officer executing warrant - CCP 18.08.
• Shall seize accused and property - CCP 18.09.
• Seizure of Circuit Board of Gambling Device, Equipment, or Paraphernalia CCP 18.095 (revised 2/2010).
• How return made - CCP 18.10.
• Custody of property found - CCP 18.11.
• Testing for communicable diseases following certain arrests - CCP 18.22.
• What is the difference between no knock search versus knock and announce warrant

“No Knock” Versus “Knock and Announce” Warrants

• “No knock” protects against armed occupants and contraband disposal.
• “Knock and announce” can cause an occupant to understand to be attacked and defend self.
• "Knock and announce" is designed to let occupants know its police that want to enter premises.
• I.e.*, they knock, show presence, and wait a reasonable time, where a peaceable entrance is less risky to both parties.
• "Knock and announce" could allow the time for occupants to reach for weapons or destroy evidence.
• There is little difference since there is no volume/length specification.

What is Needed to Charge

• Complaint - ССР 15.04
• Requisites of complaint - CCP 15.05
• Probable Cause Affidavit: A sworn law enforcement statement details singular and justified beliefs that the constitutional protections were respected.
• Justification is present to suspect enough for the violation of criminal law, search property, and seize items for an offense per Lowe, The importance of a probable cause affidavit in Texas Criminal Defense - Dallas justice blog, 1 December 2022.

Bail Procedure Explained

• Definition of "bail" - CCP 17.01
• Release on bond of certain persons arrested without a warrant - CCP 17.033
• Rules for fixing amount of bail - CCP 17.15
• Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case – CCP 17.152
• Denial of Bail for Violation of Condition of Bond Where Child Alleged Victim – CCP 17.153
• Bail in misdemeanor - CCP 17.20
• Bail in felony - CCP 17.21
• May take bail in felony - CCP 17.22
• Accused liberated - CCP 17.29
• Further detention of certain persons - CCP 17.291
• Magistrate's order for emergency protection - CCP 17.292
• Crime victims' rights - CCP 56A.051; ССР 56A.052