Chapter 11 Warrantless Arrest PDF

CHAPTER 11 – WARRANTLESS ARREST REV. NOVEMBER 30, 2012 11.01 GUIDELINES A. These guidelines for warrantless arrest are designed to assist the deputy in determining how and when it is appropriate to enforce the law through a warrantless arrest. B. Deputies exercise a certain amount of dis...

CHAPTER 11 – WARRANTLESS ARREST REV. NOVEMBER 30, 2012 11.01 GUIDELINES A. These guidelines for warrantless arrest are designed to assist the deputy in determining how and when it is appropriate to enforce the law through a warrantless arrest. B. Deputies exercise a certain amount of discretion in the use of their authority to arrest without a warrant. C. The authority to arrest without a warrant is entirely statutory. Any deputy who acts outside of authority in making such an arrest may be subject to both civil and criminal liability. Further, a deputy serving a suspension does not have the authority to make arrests other than those that can be made as a private citizen does. Only employees commissioned as sheriff’s deputies have arrest powers as peace officers. Non-commissioned detention officers are not peace officers even if they possess a TCOLE license. Therefore, only deputies are authorized to make arrests. D. A deputy does not make a warrantless arrest except as provided in this procedure. The statutes authorizing warrantless arrests are found in the Texas Code of Criminal Procedure, the Texas Alcohol Beverage Code (101.02), Vernon's Civil Statutes (6701 d Sec. 153), and the Texas Parks and Wildlife Code (11.019 and 11.0191). These statutes can be divided into two categories: 1. Those who authorize warrantless arrests for offenses committed in the deputy's presence or view; and 2. Those which authorize such arrests for offenses outside of presence or view. 11.02 DEFINITIONS A. Arrest-The international seizure of a person by an officer acting under real or assumed legal authority, either by actual physical restraint or by assertion of authority submitted to by the offender, for the purpose of charging him with a criminal complaint. (CHAPTER 17 on Stop and Frisk discusses temporary restraints which fall short of "arrest"). B. Bodily Injury - Physical pains illness or any impairment of physical condition. C. Breach of the Peace - Any unauthorized and unwarranted act which involves violence, or which likely will provoke violence, and which significantly disturbs or threatens the peace and quiet of the community. D. Felony - An offense so designated by law or punishable by death or confinement in a penitentiary. E. Fresh pursuit ("hot pursuit") - Pursuit of a person without unreasonable delay, but not necessarily instantly or immediately, in order to apprehend and arrest. Effective date April 30, 2014 127 F. In the Presence Of - When the officer, through one or more of five senses, has probable cause to believe that an offense is being committed, that offense occurs "in the presence of" that officer. G. Misdemeanor - An offense so designated by law or punishable by fine, by confinement in jail, or both. H. Offender - A person whom an officer has probable cause to arrest or detain. I. Offense - An act or omission constituting either a felony or misdemeanor. J. Probable Cause - That set of apparent facts and circumstances based on reasonably trustworthy information which would warrant a prudent person (in the position of and with the knowledge of the particular police officer) to believe something, for example, that a particular person has committed an offense. K. Serious Bodily Injury - Bodily injury that create a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 11.03 POLICY A. Deputies shall not make a warrantless arrest unless authorized by law and this Manual. In interpreting the law, deputies shall follow the interpretation provided by the B.C.S.O. in the addendum to this CHAPTER or other official written statements. When a rule of arrest in this CHAPTER is more restrictive than the applicable law, the rule shall be followed. B. Unless otherwise permitted in this Manual, or in connection with an approved assignment, the Sheriff does not authorize any law enforcement action outside the County line. Officers taking such law enforcement action outside the County line do so at their own risk. C. An arrest shall be deemed to be within the County line where a legal arrest is initiated within the County line, and the arrest is completed, after fresh pursuit, outside the County line. D. Texas law, under Article 14.03 (c) of the code of Criminal Procedure, allows peace officers to make arrests outside of their jurisdictions if a person commits a felony or a violation of CHAPTER 42 of the Penal Code in the presence of the officer. However, such action is discouraged by this division except under exceptional circumstances. 11.04 PROBABLE CAUSE CONSIDERATIONS A. No arrest without warrant shall be made unless the deputy has sufficient reliable information to constitute probable cause upon which a warrant could be issued. B. Deputies shall employ their special training, skills, and experience as peace officers in determining whether probable cause exists. Effective date April 30, 2014 128 C. Deputies may consider lawfully acquired information available to them at the moment of arrest regardless of its admissibility at trail. D. Deputies shall reasonably record all the facts and surrounding circumstances available to them at the time of the arrest. E. Although subjective and undefined suspicion or speculation does not justify an arrest, deputies may rely on these to justify further investigation which may produce probable cause. F. Generally suspicious conduct by a person not suggesting a specific crime does not establish probable cause, but it does provide a basis for further investigation. G. An arrest may be made if the deputy has probable cause to believe the person committed some offense, even if the deputy is not sure which specific offense was committed. H. Probable cause does not require proof beyond a reasonable doubt, but only facts which could lead a reasonable person in the deputy's position to believe a person probably or most likely committed an offense. I. Some of the factors which a deputy may consider, together and in the context of the whole situation, in determining probable cause, include: 1. Suspicion, rumor, gossip, 2. A person's general reputation, 3. A person's criminal record, 4. A person's appearance, statements, and conduct, 5. Furtive gestures or flight at the approach of strangers or officers, 6. High crime rate of a particular place or area, recent criminal activity in a place or area, 7. Possession, disposal, or concealment of an article; the attempt to dispose of or conceal an article, 8. Information provided by a victim, witness, or informer, 9. Information received from other officers or through official channels, and 10. Direct observation of an offense. Effective date April 30, 2014 129 J. When deputies rely on information from an informant to establish probable cause, they must be able to articulate: 1. Their reasons for believing the informant to be reliable, and 2. The means by which the informant acquired the information (personal observation, etc.) K. When information is received from a victim or witness, if circumstances permit, deputies shall seek some corroboration such as by observing physical evidence of the offense or the witness' powers of observation. When circumstances suggest that the victim or witness' allegations may be untrue, deputies shall investigate further before arresting. The more doubt a deputy has about the victims or witness' veracity, sincerity, or ability to perceive the more evidence he will need for corroboration. L. Deputies may arrest without warrant upon request by another peace officer provided they have no reason to doubt that the requesting officer has probable cause. 11.05 OFFENSES COMMITTED IN THE OFFICER'S PRESENCE A. Within the County line, unless provided otherwise elsewhere in this Manual, deputies may, without warrant, arrest for any offense committed in their presence or view to the extent permissible under State law. B. In order to constitute an arrest for an offense in the deputy's presence or view, the attempt to arrest must be promptly initiated and continuously pursued. If the attempt to arrest is delayed or discontinued, a warrant must be obtained unless one of the other provisions justify warrantless arrest. C. This section establishes general rules for warrantless arrest for offenses in the presence of the deputy. Where other parts of the Manual speak to specific situations, those parts shall control; for example, Misdemeanor Citation, Traffic Offenses, Domestic Disturbances, and specific offenses such as disorderly conduct. 11.06 OFFENSES COMMITTED OUT OF THE OFFICER'S PRESENCE A. Within the County line, unless provided otherwise elsewhere in this Manual, a deputy may arrest, without warrant for offenses outside of presence or view where such arrests are permitted under State law as outlined in the Warrantless Arrest Supplement to this CHAPTER. In general, such arrests are governed by the State Law provisions relating to Suspicious Places and Circumstances, Danger of Repeated Assault, When a Felony Has been Committed, Preventing Consequences of Theft, Person Charged With Serious Crime in Another State, and Offense Within View of Magistrate. B. No arrest shall be made under the State law warrantless arrest provisions relating to When Felony Has Been Committed, 14.04 CCP, unless there is, in addition to the other requirements, probable cause to believe that the offender is about to escape so there is no time to procure a warrant. 11.07 SELECTIVE ENFORCEMENT A. A deputy shall arrest for a felony whenever such arrest is permissible under the laws of arrest and this Manual, except when delay or non-arrest is necessary to obtain more evidence or otherwise Effective date April 30, 2014 130 further a criminal investigation. When the deputy doubts the validity of a warrantless arrest, he shall obtain a warrant. B. When deciding whether to arrest for misdemeanors, deputies should consider such things as the following: 1. The victim expresses no serious interest in prosecution because: a. He desires restitution only, b. He has a continuing or a domestic or family-type relationship with the offender. 2. Whether the offender can be referred to another agency which is better equipped to deal with the problem. 3. Whether an adequate civil remedy is available to the victim. 4. Whether arrest would result in unnecessary harm to the victim or offender which would outweigh the risk of non-arrest. 5. Whether the offender is under investigation for another offense. 6. Whether arrest is necessary to protect witnesses, property, or evidence from injury. 7. Whether arrest is necessary to prevent an offender from warning conspirators. 8. Whether arrest is necessary to protect the offender from harm. 9. Whether, because of the circumstances (for example, a large, inadequately controlled crowd), the arrest would create a risk of injury or public disorder unjustified by the seriousness of the offense. 10. Whether extreme hardship or inconvenience would result from immediate arrest. C. A deputy is not required to arrest for every misdemeanor for which arrest is permissible under the laws of arrest and this Manual. However, discretion to arrest or not arrest is usually limited to class "C" misdemeanors. D. When a deputy declines to make an arrest, despite probable cause, he shall warn the offender that their conduct has come to official attention and that an arrest may occur if the behavior continues or is repeated. E. Deputies shall be able to articulate their reasons for failing to arrest despite probable cause. F. In determining whether to arrest, deputies shall not consider race, creed, religion, sex, or any other arbitrary characteristic of the offender or victim. G. A deputy shall not arrest an offender for conduct which the deputy has provoked by improper actions. Effective date April 30, 2014 131 H. Deputies shall not make an arrest as a pretext for conducting a search. 11.08 FRESH PURSUIT AND WARRANTLESS ARREST A. This section governs fresh pursuit in the warrantless arrest situation. CHAPTER 13 on Emergency Vehicle Operation provides further guidance for high-speed vehicular pursuit. B. When deputies are authorized by this Manual to make a warrantless arrest, they may pursue the offender to affect the arrest. Such pursuit may extend beyond the county line so long as continuously maintained. Once it becomes apparent, however, that the pursuit will go beyond the county line, the deputy shall request direction from the supervisor in charge prior to continuing the pursuit. The decision to continue a pursuit, by the deputy or supervisor, shall consider the seriousness of the crime involved, the likelihood of effecting the arrest later, the possibility that evidence will be destroyed, the risk to officers and other persons and property, and such other circumstances as exist in the particular case. Fresh pursuit may be authorized to the State line. C. If a pursuit is delayed or interrupted, a warrant shall be obtained before the arrest is made, unless the offense is a felony and there is probable cause to believe the offender will escape if time is taken to obtain a warrant. D. When a deputy apprehends an offender outside the County lines, he shall take the offender, without unnecessary delay, before some magistrate of the county in which he made the arrest. 11.09 MANNER OF ARREST A. Deputies shall insure that the offender knows that he is being placed under arrest. If the deputy is not in uniform, the deputy must display a badge or identification. B. When not impractical, deputies shall inform the offender that: 1. He is under arrest, and 2. The reason for the arrest. EXAMPLE: The offender is in the act of committing the offense or fleeing the scene, or disclosure would endanger the deputy or imperil the arrest. C. Deputies may place an unconscious, mentally ill, or injured offender under arrest even though such person is incapable of understanding that he is under arrest. Medical care must be obtained before booking. D. Unnecessary force shall not be used in effecting an arrest. E. Each arrested person shall be taken to the County Jail for booking without unnecessary delay. Furthermore, arrestees must be magistrate without unnecessary delay. F. As a matter of routine procedure, when the offender is placed under custodial arrest the arresting deputy will advise the arrested person of their Miranda rights. Effective date April 30, 2014 132 11.10 RELEASE OF ERRONEOUSLY ARRESTED PERSONS IN THE FIELD Any time a deputy or supervisor determines that an arrest is erroneous, improper or otherwise inappropriate prior to jail book-in the person will be safely released in the field at a location convenient to the arrestee. Deputies who release erroneously arrested persons in the field shall inform their supervisor. The facts and circumstances justifying the release shall be documented on the Supervisor's Report as well as the arresting deputy's report. 11.11 ARRESTS IN SPECIAL SITUATIONS A. Disturbances – Generally 1. Definitions a. Breach of Public Order Offenses - Acts prohibited under the Texas Penal Code: Abusive Language [42.01 (a)(1), Offensive Gesture [42.01 (a)(2)], Unreasonable Odor [42.01(a)(3)], Abuse or Threat [42.01(a)(4)], Unreasonable Noise [42.01(a)(5)], Fighting [42.01(a)(6)], Public Exposure of Anus or Genitals [42.01(a)(12)], Public Lewdness [21.07.07], Indecent Exposure [21.08], Obstructing Highway or Other Passageway [42.03], Disrupting Meeting or Procession [42.05], Hindering Proceedings By Disorderly Conduct [38.13]. b. Disturbance - includes breaches or threatened breaches of public order, except domestic disturbances covered in CHAPTER Twenty-six (Example: bar disturbances, street disturbances and fights, unreasonably loud parties and the like). c. First Amendment Activities - The lawful exercise by one or more persons of the constitutional right (without fear of prior restraint or arbitrary subsequent punishment) to assemble, to speak, or to engage in communicative behavior which expresses a point of view. Although first amendment activities usually involve political, social, economic, or religious ideas, issues or opinions, they are not limited to those topics. 2. General Policies and Procedures a. In handling disturbances, deputies should be primarily concerned with maintenance of public order and safety rather than punishment of offensive conduct. Deputies should take a preventive rather than a punitive approach. b. Within the time permitted by the circumstances, deputies should attempt to obtain all relevant information and observe all surrounding factors, before deciding the appropriate course of action. This includes conveying to all parties that the officer is interested in hearing their sides. c. Deputies shall avoid actions likely to increase, rather than reduce, tension, and shall not take action based upon personal emotions or biases. d. Prompt action, which may include immediate arrest, shall be taken when actual violence is occurring. Effective date April 30, 2014 133  e. When intervening in disturbance situations, deputies shall use what reasonably appears to them to be the least intrusive method of intervention which will re-establish order. f. Deputies shall not intervene to stop a person from exercising their first amendment rights merely because they or anyone else finds the person's ideas unpopular, unpleasant, annoying, irritating or insulting. g. Deputies must remain impartial and to the extent possible, deal tactfully with disorderly persons by: 1) Using a calm controlled verbal approach where feasible, 2) Avoiding brusqueness, rudeness or arrogant or overbearing display of authority; 3) Establishing authority in a firm, unbiased manner; and, 4) Directing their approach and effort to reducing tension. h. Possible methods of intervention, starting with the least degree of intrusiveness include: 1) Mediating, 2) Informing of appropriate social, medical, or legal counseling; 3) Contacting friends or relatives of the disorderly person, 4) Giving a warning; 5) Documenting allegations on offense report and informing about peace bond or complaint procedures; 6) Giving an order; 7) With consent of the disorderly person, taking him home or to an appropriate treatment center; and 8) Using physical restraint and arrest. i. Where many persons are involved in a disturbance, a single deputy should wait for backup before intervening, unless immediate action is necessary to prevent serious bodily injury. j. In determining the type of intervention to use, deputies should consider the circumstances of the incident, the purpose of the intervention, and the speed with which they must act. B. Disorderly Conduct (see Addendum to this CHAPTER for further discussion) 1. The booking sheet and offense report for a disorderly conduct arrest shall set out by number the subdivision (1 through 12) of Sec. 42.01(a), P.C., which is relied upon, and shall Effective date April 30, 2014 134  clearly set forth the facts observed by the officer which constitute the offense under that subdivision. 2. A person who is charged with public intoxication may additionally be charged with the following subdivisions of Sec. 42.01 (a), P.S.: (1) abusive language, (2) offensive gesture, (4) abuse or threat, (6) unreasonable noise. However, it is encouraged that the deputy refrains from adding additional class "C" charges. 3. No arrest shall be made under subdivision (1) abusive language, (2) offensive gesture, or (4) abuse or threat of Sect. 42.01(a), P.C., unless the prohibited language or conduct tends to incite an immediate breach of the peace. It is not enough that language is profane, insulting, or offensive. "Breach of peace" means violent response. No arrest shall be made unless the language or conduct would tend to produce violence from the average person, rather than someone unusually sensitive. No arrest shall be made for language or conduct directed at a deputy unless under the circumstances it would tend to cause immediate violence by a non- police bystander or creates a serious interference with the deputy performance of duty. Court cases have held that a peace officer cannot be incited to breach the peace. See Lewis v. City of New Orleans, 415 U.S. 130, 39 L Ed 2d 214, 94 S. CT 970 (1974) and Gooding v. Wilson, 405 U.S. 518, 31 L Ed 2d 408, 92 S. CT. 1103 (1972). 4. When an arrest is made under subdivisions (1) abusive language, (2) offensive gesture, (4) abuse or threat, the arrest report shall set forth the actual words used or describe the gesture or display observed. 5. Where speech is the basis of a possible arrest under subdivision (5) of sec. 42.01(a), P.C. (unreasonable noise), only the volume or loudness under the circumstances will be considered. The content of the speech shall not be the basis of arrest. If such unreasonably loud speech is an expression on social, economic, political, or religious questions, the person must be ordered to move, disperse, or otherwise remedy the violation before he may be arrested. C. Foreign Nationals 1. No person shall be arrested solely on a charge of violation of United States Immigration Law. Such arrests should be made only by Immigration and Naturalization agents. 2. If a foreign national is arrested, on some other charge, the arresting officer will notify the supervisor of the prisoner's alien status prior to booking. 3. The supervisor will be responsible for notifying Immigration and Naturalization Service that an undocumented alien is in police custody. 4. When the charge or charges against an undocumented alien are disposed of, either by a court, or dismissal, the alien will not be detained in custody solely because he is an undocumented alien, even if Immigration and Naturalization Service has been notified but has not yet responded. 5. The only exception to paragraph 4 is when the Immigration and Naturalization Service officer officially authorized the retention of the alien until he arrives to take the prisoner Effective date April 30, 2014 135  into custody. (An Immigration and Naturalization Service officer cannot authorize this except when the alien has admitted to the Immigration and Naturalization Service officer that he is, in fact, an alien). D. Intoxication (See Addendum to this CHAPTER for further discussion) 1. An arrest for public intoxication shall not be made unless the offender is both: a. Intoxicated (it is not enough that the person "has been drinking"), and b. A potential danger to self or others (for example, is passed out, falling down, waling in the street, about to drive a vehicle, acting belligerently toward others, or unable to care for self or personal property.) 2. Factors which may support intoxication include: unsteadiness, slurred speech, impaired judgment (over loud or inappropriate language, belligerence), alcohol smell, nausea/vomiting, confused, stupors, mood swings, disorientation, flushed face, red eyes, pupils moderately dilated but reacting to light, rapid eye movement side to center, tremor of outstretched hands, difficulty walking straight line, difficulty with finger to nose test, abnormal handwriting (especially other than signature). 3. Normally a person should not be arrested in their yard for public intoxication, even though in that part of the yard which constitutes a "public place" under the Penal Code a person may be arrested, however, in that part of the yard which constitutes a public place when creating a disturbance, which is likely to disturb the peace of other persons or which, is likely to endanger other persons. 4. Certain illnesses and injuries have the same symptoms as intoxication. Deputies should look for or be mindful of: a. Lack of alcohol odor, b. Sweetish acid breath associated with diabetics, c. Unequal size of pupils associated with stroke or head injury, d. Irrational behavior, e. Identification cards indicating the person is suffering from illness or injury, f. Information received from any source indicating the possibility of illness or injury not associated with intoxication. 5. If the offender is arrested, the offense report shall state: a. What the deputy observed that caused him to believe that the offender was intoxicated, b. The public location where the offender was observed, Effective date April 30, 2014 136  c. What the deputy observed that caused him to believe that the offender was a danger to himself or others. d. Whether or not the offender was drinking or consuming a substance in the deputy's presence. E. A copy of all offense reports involving a liquor license holder or incidents on licensed premises will be forwarded to the Criminal Investigations Division. F. Arrests for public intoxication are designed to prevent the risk of harm to the offender or others. Where, because of extraneous circumstances such as a hostile crowd, an arrest would likely involve a greater risk of harm than non-arrest, an arrest should not be made. G. Pursuant to Section 42.08, Penal Code, deputies may, in lieu of arresting the intoxicated person, release the person if: 1. They believe that (from specific factors they can cite) penal detention is unnecessary to protect the individual or others; and 2. The person is released to competent adult or person who agrees to assume responsibility for the person. (Deputies shall make sufficient inquiry to be satisfied that such adult is competent and will take adequate measures to assure the intoxicated person will not be a danger to himself or others.) H. Military Personnel 1. Military personnel will be treated the same as civilians. 2. AWOL is a misdemeanor under federal law. Deputies may arrest pursuant to state guidelines for misdemeanor arrests, except no jailing shall be made for AWOL alone without prior approval from the deputy's supervisor and positive confirmation from the military. I. Picketing/Demonstrating 1. In labor picketing, political demonstrations, or other first amendment expressive activities, arrest should only be made where immediately necessary to prevent injury to person or property. Where feasible, the deputy shall contact a supervisor when police action may be required in such cases 2. Complaints in situations such as labor disputes should be referred to the appropriate prosecutor or to their own lawyer for remedies in situations not justifying arrest. J. Public Place - As Element of Certain Offenses Certain offenses contain an element that the offense did occur in a public place. "Public place" is any place to which the public or a substantial group of the public has access. It includes, but is not limited to, streets, highways, and common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. To the extent that the front yard of a single-family dwelling is a place of free access by the public place under the Penal Code. Ordinarily, however, no arrest for such offenses should be Effective date April 30, 2014 137 made where the effects of the offense are limited to the front yard except to protect persons or property from significant risk of unlawful injury. K. Resisting Arrest 1. Ordinarily, resisting arrest charges should not be filed for attempts to pull away which are of short duration and are overcome with little difficulty. Such charges may be filed, however, if the deputy suffers bodily injury in overcoming the resistance. 2. Resisting arrest charges may also be filed where the offender strikes or attempts to strike the deputy, where he attempts to pull away or prevent deputies from moving him for a substantial period of time, or where any amount of pulling away is coupled with trying to enlist the assistance of bystanders. L. Theft (Misdemeanor) 1. Subject to the following, a deputy should arrest when theft is committed in their presence, or when there is probable cause to believe that the offender has committed theft and has the stolen property in their possession. 2. Citation rather than arrest is permitted for certain thefts. 3. Although State law permits citizens to arrest for theft, a deputy need not take custody of every person so arrested. Before taking custody, a deputy should sufficiently investigate to assure himself that a violation occurred and that the citizen had probable cause to arrest. 4. Custody arrests for unpaid cafe checks, theft of gasoline from service stations, taxicab fares, theft of service, and the like should be made only where investigation shows intent to deprive of merchandise or service. Deputies will recognize that such incidents often are civil disputes over the quality or quantity. Arrests will be made only if the dispute cannot be resolved to the complainant's satisfaction. M. Trespass 1. No arrest may be made for criminal trespass unless it occurs in the presence of the deputy. 2. In order to arrest, unless a sign or other notice is present or there is a fence present or some other indication that entry is prohibited, the deputy must hear a person with authority order the offender to leave. The deputy should be satisfied that the person has authority to act for the owner and that the authority extends to the area in question. Ordinarily this may be accomplished by inquiring of the person’s position and the limits of the area under their control. 3. The offender shall be given ample opportunity to leave before he is arrested. 4. If the offender leaves, but returns later, the deputy may arrest without further notice to the offender, unless the time which has elapsed creates doubt that the original notice is still in effect. In the latter case, the deputy shall inquire of management before arresting. Effective date April 30, 2014 138  5. No arrest should be made unless the person with authority verbally agrees to cooperate with prosecution of the offense. M. Weapons 1. CHAPTER 46 of the Texas Penal Code sets forth weapons offenses under State law. None of these offenses are less than a Class A Misdemeanor. 2. No charge should be filed where it appears that the person was carrying the weapon home after purchase, returning a borrowed weapon, carrying it to or from repair shop, carrying it home from a place of business or vice versa, or carrying it from a temporary business to a permanent business. N. Private Security Officers 1. Definitions a. Security Officer Commission - An authorization granted by the Texas Board of Private Investigators and Private Security Agencies to an individual employed as a private security officer to carry a firearm. b. Commissioned Security Officer - Any private security officer to whom a security officer commission has been issued by the Texas Board of Private Investigators and Private Security Agencies. 2. It is not the policy of the BCSO to check the credentials of security officers at random without the reasonable belief that an impropriety exists. O. When a commissioned security officer, wearing a distinctive uniform and carrying a firearm, is unable to produce a valid Security Officer Commission card, deputies shall prepare an offense report documenting all pertinent information needed for the filing of future administrative action and/or criminal charges. P. Deputies shall not arrest commissioned security officers for expiration of the Security Officer Commission card or for the failure of the security officer to carry the Commission card on their person when no other violations exist without first clearing it with the deputy's supervisor. The supervisor shall, if possible, contact the Security Company to ascertain whether the commission card is in the process of being renewed or if the security officer is commissioned. If the commission is being renewed or the security officer is currently commissioned, the security officer is not to be arrested for unlawful carrying. If the Security Company cannot be contacted, the security officer should not be arrested solely on the basis of a potential unlawful carrying charge. Q. Traffic Arrests 1. As a general rule, deputies will not take into custody, persons having committed simple class "C" traffic offenses, however, said violators shall be detained until necessary information has been obtained to issue a traffic citation. Effective date April 30, 2014 139  2. When a deputy witnesses a traffic violation, he will issue a traffic citation. In instances where the violator refuses to sign the promise to appear, the deputy will indicate "refused to sign," on the signature line. The deputy will then point out to the violator the time, date, and place of court appearance, and will then issue a copy of the ticket to him. 3. In the case of a refusal to sign the promise to appear, the deputy will file the case in the appropriate traffic court, and will allow the court to issue a warrant of arrest should the violator fail to answer an official court summons. NOTE: Deputies must follow-up on any traffic citations issued with the Justice Courts in order to assure proper disposition of the case and for issuance of any warrants. 11.12 OFF DUTY ARRESTS A. While Working Off-duty Jobs: 1. Generally, while working at off-duty jobs, a deputy shall make arrests as if he were on duty. However, the deputy will employ due diligence when faced with enforcing traffic offenses, use discretion. Officers should not make traffic arrest in an off-duty status unless it is an aggravated offense; especially when not in a uniform. 2. Arrest of shoplifters while working off-duty jobs. 3. All deputies working in off-duty store security jobs will make arrests of shoplifters or detain suspected thieves only: a. When the deputy personally observes the subject conceal the stolen item and/or attempt to leave the store without paying for an item; or b. When directed to detain an individual by another law enforcement officer. 4. Deputies will not arrest or detain a subject for shoplifting just on the basis of a store employee or private citizen's request or information. a. If a store employee advises a deputy that he or she has observed a subject conceal an item or leave the store without paying for an item, the deputy is to advise the employee to approach and detain the subject himself. Article 18.16 of the Code of Criminal Procedure states that "all persons", not just peace officers, have the right to prevent the consequences of theft. The deputy will accompany the store employee in approaching the subject and stand-by while the employee detains the subject to assure that the employee is not assaulted. If a store item is recovered from the subject and it is determined that it was not paid for, then the deputy shall arrest or cite the subject for theft or detain the subject for another law enforcement agency to take custody. b. Only when the deputy personally views the unpaid for item in the subject's possession will the deputy then take official action. c. If the off-duty officer is not in uniform; a badge or identification credentials must be displayed. Effective date April 30, 2014 140 B. Off Duty Arrests when NOT working Off-duty Jobs: 1. Deputies have the authority and the obligation to take action while off-duty to prevent the commission of felonies or injuries to persons. It is the policy of the BCSO that off-duty deputies when not working off-duty jobs shall intervene, when safe to do so, only to prevent the commission of a felony or to prevent the escape of a fleeing felon. Furthermore, off- duty deputies may intervene to prevent injuries to persons and damage to property. However, off-duty involvement in incidents is highly discouraged. It is recommended that the off-duty deputy summon on duty officers to handle situations, if possible. 2. If the off-duty deputy is not in uniform when affecting the arrest, a badge or identification credentials should be displayed. 3. Off-duty deputies, when not engaged in off-duty employment, shall not: a. Purposely patrol for or look for criminal activity. b. Enforce traffic offenses c. Monitor radio transmissions and answer calls for law enforcement services d. Involve themselves in non-violent misdemeanor situation or family Disturbances e. Conduct random stops or questions citizens f. Conduct criminal investigations g. Engage in vehicle pursuits of any kind C. Off-duty arrest report writing responsibilities 1. If the deputy chooses to arrest or cite an offender, the deputy must write the standard division offense report and obtain a case number from the Sheriff’s Dispatcher. The deputy must assure the subject is properly transported to the jail and booked if the deputy chooses to arrest. Furthermore, the deputy must assure that a copy of the offense report if filed with the magistrate and the original offense report is filed with the on-duty patrol supervisor by the end of the shift. 2. If the deputy chooses only to detain the subject for another law enforcement agency, the deputy must prepare an incident report and obtain a case number from the Sheriff's dispatcher. The report must detail the deputy's action and grounds for the detention. Furthermore, it must list the name and agency to which the subject was turned over and cite that agency's case number. This report must be filed with the Patrol Division within 24 hours. 11.13. LEGAL REQUIREMENTS FOR ARREST WITHOUT WARRANT A. General Rule: In Texas, a warrant is required for custodial arrests unless warrantless arrest is expressly authorized by statute. Effective date April 30, 2014 141 B. Only in the exceptions to the warrant requirement set out below may a warrantless custodial arrest or detention by made. C. "Arrest" means actually placing the person under restraint or taking him into custody. 1. An arrest is complete when the person's liberty of movement is restricted or restrained. 2. Actual physical contact is not necessary; communication to the suspect that they are under arrest and their acquiescence is sufficient. a. Formal words of arrest are not required. b. Words of arrest alone do not constitute arrest unless the person acquires or is put under actual physical and probable custody and control. D. Temporary detention is distinguished from arrest in that in a temporary detention, the person is only restrained briefly for investigative purposes and probable cause is not required. 1. Temporary detention does involve restraint or custody. 2. Although probable cause is not required, reasonable suspicion generally is. 11.14. CONTACT NOT AMOUNTING TO ARREST OR DETENTION A. It is not an arrest or detention for a peace officer to approach a person in a public place or other place the officer has a right to be, or to merely request identification, or to knock politely on the person’s door, and address questions to the person. B. This is so even if the officer identifies himself as an officer. C. An officer may ask a person in a bar to step outside and talk, and if voluntarily does so, there is no arrest or detention. D. The person approached need not answer any questions; and may refuse to listen at all and may go on their way. E. If the approach amounts to a show of force or authority that would cause a reasonable person to think he is not free to leave, it is a detention. 11.15. ARTICLE 14.01(B), CCP, OFFENSE WITHIN PRESENCE OF OFFICER A. Statutory Language: A peace officer may arrest an offender without a warrant for any offense committed in their presence or within their view. B. "Any offense" includes felonies and misdemeanors of any degree or classification. C. Offense occurs within presence or view when any of the officer's senses afford him knowledge thereof. Effective date April 30, 2014 142 D. It is not sufficient that the officer be within seeing or hearing distance; he must actually see, hear or otherwise sense the event. E. The information available to the officer must provide him with probable cause to believe the person committed the offense, but it is not required that the offense actually have been committed. 1. Probable cause for an arrest exists where, at the moment, the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime. 2. In determining that a crime is being committed in their presence, an officer can rely on such things as: their knowledge that heroin is normally packaged in tinfoil, their knowledge that the suspect is a marijuana user, the suspect’s extreme nervousness, the suspect’s furtive dropping of a matchbox, an informant’s statement that the suspect had a big pistol, observation of a bulge in suspect’s person, admission that he possesses narcotics. a. One of these, standing alone, is not generally enough for probable cause. b. The offense must be occurring while the officer is at the scene; it cannot have been concluded earlier. c. All of the elements of the offense must exist at the time of the arrest. d. An officer may arrest for an offense on private property in their presence or view if the officer is located where he has a right to be when he makes the observation. 1) The observation may occur through an open door or window. 2) The arrest may be made on the arrestee's own premises. e. The right to arrest without warrant for an offense committed in the officer's presence is limited to the time the offense is committed or while there is continuing danger of renewal; an officer who has promptly initiated an attempt to arrest may continuously pursue the offender to complete the arrest, but the officer may not, after a delay, subsequently pursue and arrest the offender to assure their apprehension. 11.16. TRAFFIC ARRESTS A. Under the Texas Motor Vehicle Code, a full custodial arrest is authorized for any traffic offense. 1. However, if the offense is speeding, and the offender signs the citation, no custodial arrest may legally be made, unless the vehicle is licensed outside Texas or the offender is not a Texas resident; for other traffic offenses, citation is optional. 2. The officer must have probable cause to believe a traffic offense was committed; it is not required that there actually be a violation. B. Despite legal authorization, it is the Sheriff's Office policy that class "C" traffic offenders are not to be arrested unless exceptional circumstances are present. Effective date April 30, 2014 143 11.17. ARTICLE 14.03(A) (1), CCP, SUSPICIOUS PLACES AND CIRCUMSTANCES A. Statutory Language: A peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of peace, or threaten, or are about to commit some offense against the laws. B. The essential elements, which must be present to justify a full custodial arrest under this provision, are: 1. Probable cause to believe that the person has committed a felony or breach of peace. 2. "Breach of peace" means disturbing the public peace, order, or decorum by an act or conduct involving actual violence or tending to provoke or threaten violence. 3. The breach of peace must be an offense specifically defined in the penal laws; for example, assault. 4. That the person is found in a suspicious place or under suspicious circumstances. a. The place or circumstances in which the suspect is found must affirmatively indicate that he committed the crime. b. For example: 1) Suspect with many arrests for burglary found at 4 a.m. in dark alley behind cafeteria carrying a nail bar and coin box, and cafeteria cigarette machine had been pried into. 2) Shortly after interviewing a witness to a fresh burglary, the officer sees 2 suspects fitting the description 3 blocks away. Upon seeing police they start to walk away fast, throwing things from their pockets. When stopped, they give evasive answers. 3) "Suspicious" means arousing or tending to arouse suspicion; i.e., the imagination or apprehension of something wrong or hurtful without proof or on slight evidence. 11.18 ARTICLE 14.03 (A) (2), CCP, DANGER OF REPEATED ASSAULT A. Statutory Language: A peace officer may arrest, without warrant, persons who the officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person. B. This provision permits arrest for an assault outside the presence of the officer where there are two levels of probable cause: 1. That an assault has been committed, resulting in bodily injury. a. "Bodily injury" means physical pain, illness, or any impairment of physical condition. Effective date April 30, 2014 144  b. Factors, which may bear on this level of probable cause, include such things as the statement of the victim or a witness, injury observed by the officer, weapons in view, admission by the suspect, emotional state of the parties, etc. 2. That there is danger of further bodily injury, to the same person. Factors which may bear on this level of probable cause include such things as the emotional state of the parties, the reputation of the suspect for violence, the officer's knowledge of the suspect's violent propensity, statements of the victim or other witnesses as to the suspect's habitual violence, statements by the suspect as to their intentions, their intoxicated condition, etc. 11.19 ARTICLE 14.03(A) (3), CCP, VIOLATION OF FAMILY PROTECTIVE ORDER A. Statutory Language: Any peace officer may arrest without warrant persons the peace officer has probable cause to believe have committed the offense defined by Section 25.08, Penal Code. B. Section 25.08, P.C., makes it an offense to violate a court order under the Family Code insofar as the order prohibits: 1. Committing a family violence; 2. Directly communicating with a member of the family or household in a threatening or harassing manner; or 3. Going to or near the residence or place of employment or business of a member of the family or household as specifically described in the protective order. 11.20 ARTICLE 14.04, CCP, WHEN FELONY HAS BEEN COMMITTED A. Statutory Language: Where it is shown by satisfactory proof, upon representation of a credible person, that a felony has been committed, and that the offender is about to escape, so there is not time to procure a warrant, the officer may, without warrant, pursue and arrest the accused. B. This provision applies only to felonies. C. The two essential elements under this provision are: 1. That there is probable cause to believe that the person has committed a felony ("Satisfactory proof" means probable cause".) 2. That the offender is about to escape so there is no time to procure a warrant. 3. Whether probable cause exists based upon "representation of credible persons" requires consideration of information from two different kinds of witnesses. 4. Victim or citizen-witness: Generally, a person purporting to be a crime victim or citizen witness is presumed reliable in absence of special circumstances indicating otherwise. a. A credible person is one worthy of belief. Effective date April 30, 2014 145  b. There should be some indication the citizen-witness is worthy of belief; the officer should learn some facts about the witness. c. The fact that a witness allows his name to be used goes a long way to establishing credibility. d. Special circumstances indicating lack of reliability may include such things as grudge against suspect, incapacity for present rational thinking, previous false information by the person, and desire of person to remain anonymous. e. Circumstances indicating reliability may include such things as gainful employment, good reputation, and lack of criminal record. f. In each case, the bottom line is whether all the facts considered together add up to probable cause. g. The description of the suspect must be specific enough to provide probable cause that particular person committed the crime. h. Information received from a witness may be strengthened by the officer's independent observations. i. Informant (i.e., a person who is involved in crime or who is closely connected to people who are): The reliability of the informant is not the reliability must be shown. 1) The following are highly relevant in determining the value of the informant's information: 2) The "basis of knowledge," i.e., the means by which the informant obtained the information (i.e. whether observed personally, or received from someone). 3) The "veracity" of the informant, i.e., his track record of providing truthful information. 4) The "reliability" of the informant, i.e., facts that indicate he is truthful on this occasion (such as an admission against his penal interest.) a) No particular element is absolutely required; the question is whether all the facts create a fair or substantial probability that the person is guilty. b) Corroboration of an otherwise insufficient informant's tip by independent police observation can provide probable cause. c) Particular facts which may support probable cause include: the length of time the officer has dealt with the informer, the number of tips received, the accuracy of previous information, reputation of the informer, manner in which the informer was paid, personal knowledge of officer verifying some of informer's story, officer's knowledge that the crime was committed and its details, reputation and employment and lack of criminal record of informant, Effective date April 30, 2014 146  independent corroboration of parts of informant's story, reputation of premises in question, criminal record of suspect, and reputation of suspect. D. A showing that the offender is about to escape is indispensable under Article 14.04. 1. Probable cause to believe the offender is about to escape may be shown by facts such as the following: a. That a friend or acquaintance has probably alerted him to interest by the police. b. Officers learn from personal observation or a reliable source that suspects is about to leave town. c. Officers receive information of crime and name or description of suspect and see person fitting description a short time later. 2. The following have been held inadequate to show that the suspect was about to escape and there was no time to obtain a warrant: a. The apartment the suspect was in could have been staked out while a warrant was obtained (this indicates that if the suspect is in a premises, an attempt should generally be made to obtain a warrant no warrantless arrest should be made unless he attempts to leave and there is cause to believe he will escape.) b. Burglary suspect was afoot, standing in service station, and had given no indication he was about to escape. c. Through informant, officer was given probable cause to believe suspect possessed narcotics at a certain place, and went there and arrested him even though means to obtain a warrant were readily available to him. d. Upon probable cause from a witness statement that suspect had committed felony DWI, officer went to his house and arrested him inside. The officer should have first obtained a warrant. 11.21 TEMPORARY DETENTION OF SUSPECT ON REASONABLE SUSPICION A. General Rule: An officer may temporarily, involuntarily detain a person for investigation when he has reasonable suspicion that the particular person has been, is, or is about to be involved in criminal activity. B. The officer must suspect some activity out of the ordinary; have some suggestion that the detainee is connected with the activity, and some indication that the activity is related to a crime. C. “Reasonable suspicion” means specific, objective, and articulable facts upon which the officer’s suspicion is based; it is a lesser standard than probable cause. 1. The officer’s basis for suspicion includes all the circumstances known to him. Effective date April 30, 2014 147  2. Circumstances include such things as the officer’s observations, information from police reports, modes of operation for certain lawbreakers, training, and experience. 3. The facts must point to the particular individual being stopped as involved in a crime. D. A person may not be involuntarily detained even momentarily without reasonable suspicion; he is detained if he is not free to go, no matter how short the time. E. The detention must be temporary and last no longer than necessary to accomplish the purpose of the stop; means may not be used which approach conditions of arrest. 1. The suspect may not be taken to the police station and interrogated. 2. Some movement of the suspect will be permitted such as transportation to the scene of a recently committed crime, or from an airport concourse to a less crowded area the detention generally must be brief, usually only a few minutes, and during the period of detention, officers must continue to diligently pursue a means of investigation likely to confirm or dispel their suspicions. a. The U.S. Supreme Court has approved a detention of 20 minutes, but has rejected one of 90 minutes. b. The reasonableness of the length of the detention will depend in part on what is learned after the initial stop. 1) If suspicion is dispelled, such as by satisfactory answers to questions about himself and his activities, the person must be promptly released. 2) If further suspicion is aroused, such as by false or evasive answers, the stop May be prolonged. 3) But if investigation leaves the suspicion unresolved, the suspect must be released. 4) Factors bearing on reasonableness of length of detention include such things as seriousness of the crime, and whether the investigation reveals more facts tending toward probable cause. F. Investigation techniques which may be used during the brief detention include request for identification, inquiry regarding the suspicious conduct, verification from police or citizen sources of the information tendered, determination of whether the person is wanted, determination of whether an offense has occurred (such as by checking premises or talking to witnesses), and fingerprinting if it may help establish or negate the suspect’s connection with the crime. G. The investigation means used should be the least intrusive reasonably available to verify or dispel the officer’s suspicion in a short time. H. Factors which, in combination with other factors, may justify temporary detention include: time of day, character of area in which suspect found, physical features reasonably resembling those of person or vehicle sought, parking in unusual area, evasive or furtive gestures, whether the person fits Effective date April 30, 2014 148 the area in which he is found, information that a disturbance has occurred, evasive or false answers to questions, possession of burglar tools, flight upon seeing officers, reputation of suspect or premises, officer told by other persons that suspect is engaging in criminal activity or has weapon, and other facts consistent with criminal activity. 1. One of these factors will usually not, standing alone, justify a temporary detention. 2. Facts, which have been held insufficient to justify temporary detention, include: a. Suspect was barefoot, had long hair, was shabbily dressed, and officer knew he had recently been "handled for drugs". b. One day after a robbery, 3 persons who fit general description of robbers were observed by an officer in a vehicle on an unlighted and sparsely populated street, and they turned to look back at officer. c. Suspect was parked in parking lot of closed store where young people had habit of gathering. d. Suspect stood, where public was permitted, looking into window at radio station disc jockey during early morning hours and failed to answer officers questions. e. Four men stood together on sidewalk at 10:20 am in a high crime area. f. Officers knew area in which apartments were located to be high crime area, knew of reports of hubcap thefts there, observed two black men driving on a sparsely traveled adjacent street at 1:30 a.m. and observed sheeting material in the back seat. g. Officer had information that person had illegal pills and handgun came from someone whose name the officer didn’t remember who had given information in past, but there was no testimony as to how many times or whether it had been reliable. h. Officer observed suspect’s truck, full of furniture, parked in front of McDonald’s at 5:00a.m., in a well-lit area clearly visible from main thorough fare. I. Other than remaining at the scene during the commission of the crime, there is no requirement that the detainee provide information or cooperation in any way. J. Since temporary detention is not full custodial arrest, Miranda warnings are not required before questioning. K. Temporary detention differs from arrest in that no specific statutory authority is required. 11.22 OTHER TEMPORARY DETENTIONS A. Traffic Detentions: Temporary detention involving traffic regulation is permissible in these circumstances: Effective date April 30, 2014 149  1. Where the officer observes what he reasonably believes to be a traffic violation. 2. Where officers systematically conduct driver’s license checks at a checkpoint of all vehicles, or some vehicles based upon an objective pattern, and the checkpoint is conducted for the sole purpose of checking licenses. a. Stops made randomly, non-systematically, are not permitted. b. A driver temporarily detained in a vehicle may be ordered out of the vehicle. 1) Passengers, however, in a routine traffic stop, may not automatically be ordered out of the vehicle. 2) Passengers may be ordered out, however, where their movements or actions make the officer reasonably suspect they threaten his safety, where serious criminal activity is involved, or where other facts indicate a threat to officer safety. B. Search Warrant Detentions: Where a search warrant for contraband is executed in premises, occupants of the premises may be temporarily detained until the search is complete. The rule does not apply to persons present who are not occupants; for them to be detained, reasonable suspicion must be shown. C. Witness Detentions: Witnesses to crime may be detained under the following conditions: 1. The officer has reasonable cause to believe that a misdemeanor or felony, involving danger of forcible injury to persons or of theft or danger to property, has just been committed near the place where he finds such person, and 2. The officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and 3. Such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime. 4. Other than identifying himself, the witness would be under no obligation to provide information to officers during the temporary detention. 11.23 JUVENILE ARREST A. In addition to grounds permissible under normal rules of warrant less arrest, a peace officer may arrest a child without a warrant if he has reasonable grounds to believe that the child has engaged in delinquent conduct or conduct indicating a need for supervision. B. “Reasonable grounds” means probable cause. C. This provision does not require that the proscribed conduct occur in the presence of the officer; other sources of information, such a credible witness maybe relied upon. D. “Delinquent conduct” is conduct, other than a traffic offense, that violates: Effective date April 30, 2014 150  1. A state penal law punishable by imprisonment or jail (i.e., everything except Class C misdemeanors). 2. A juvenile court order. E. “Conduct indicating a need for supervision” is: 1. Three or more violations, other than traffic offenses, of state penal laws punishable by fine only or of city penal ordinances. 2. Unexcused voluntary absence from school for 10 or more days or parts of days in a 6-month period or 3 or more days or parts of days in a 4-weekperiod. 3. Voluntary absence of a child from his home without the consent of this parent or guardian for a substantial length of time or without intent to return. 4. Violation of state or laws against driving under the influence of alcohol or drugs. 5. Violation of state or local laws against inhalation of fumes or vapors or paint and other protective coating or glue and other adhesives. F. “Child” means a person 10 through 16 years of age or a person 17 years of age who committed the alleged act while under 17. 11.24 ARTICLE 51.13, SECTION 14, CCP, PERSON CHARGED WITH SERIOUS CRIME IN ANOTHER STATE A peace officer may arrest a person without warrant when he has probable cause to believe that the person is charged in the courts of another state. 11.25 ARTICLE 14.02, CCP, WITHIN VIEW OF MAGISTRATE A. Statutory Language: A peace officer may arrest, without warrant, when: 1. A felony or breach of peace has been committed. 2. In the presence or view of a magistrate. 3. Such magistrate verbally orders the arrest. B. “Breach of peace” means an offense disturbing the public peace, order, or decorum by an act or conduct involving actual violence or tending to provoke or threaten violence. C. It has been held to include public intoxication unreasonable noise, assault, and abusive language. D. “Magistrate” includes Justices or Judges of the Supreme Court, Court of Criminal Appeals, Courts of Appeals, District Courts, County Courts at Law, and Municipal courts; and the county Judge, Justices of the Peace and Mayors of incorporated cities. Effective date April 30, 2014 151 11.26 ARTICLE 14.05, CCP, RIGHTS OF OFFICER (TO PURSUE OFFENDERS) “In each case enumerated where arrest may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant, except that an officer making an arrest without a warrant may not enter a residence to make the arrest unless: A. Generally, officers may not pursue fleeing misdemeanor offenders into a residence without consent of the occupants or a warrant unless circumstances exist which lead the officer to reasonably believe that there is a likelihood that the fleeing offender will injure an occupant of the house. B. A person who resides in the residence consents to the entry; or C. Exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.” 11.27 SPECIAL CLASS “C” ARREST RULES FOR THE SHERIFF’S OFFICE A. DISCRETION TO ISSUE CITATION IN LIEU OF ARREST 1. In case of Class “C” misdemeanor, an officer has the discretion not to arrest the violator and can instead issue a written citation (ticket) for the offense. 2. As a general rule: DEPUTIES WITH THIS DIVISION WILL NOT ARREST FOR CLASS “C” TRAFFIC OFFENSES INSTEAD TRAFFIC TICKET WILL BE ISSUED. NOTE: Officer Discretion” not to arrest applies only to class “C” misdemeanors and not to felonies and higher-class misdemeanors. B. DISORDERLY CONDUCT 1. While it is true that class “C” traffic violations will usually be handled by a citation, certain non-traffic class “C” misdemeanors will sometimes require an arrest. Such misdemeanors appear in the Penal Code and are of the type described as “breach of the peace.” This term is defined in Section 11.01 of this office’s Manual of policy and Procedure and may be categorized as: 2. “Any act causing dismay or alarm which disturbs the peace and quiet of a community or tends to incite violence or provoke or incite others to breach the peace.” 3. Most of these “breach of the peace” class “C” misdemeanors are found in CHAPTER 42 of the Penal Code concerning “Disorderly Conduct.” Section 42.01 entitled “disorderly conduct” lists twelve (12) different offenses all of which are definitely breaches of the peace. However, not all of the listed offenses of Section 42.01(1) are class “B” misdemeanors and therefore require an arrest to be made. Citations cannot be issued for class “A” or “B” misdemeanors. An examination of subsection (9) and (1) of Section 42.01 (a) reveals that these offenses involve firearms and deadly weapons in public places and are obviously deserving of the class “B” status. Effective date April 30, 2014 152  4. All of the class “C” offenses under Section 42.01 (1) are offenses you may arrest on under usual circumstances. However, due to the overcrowding crisis at the jail, deputies are to make every reasonable effort to avoid arresting the offender and issue a citation instead. C. ABUSIVE LANGUAGE 1. Probably the most common disorderly conduct offense is the Section 42.01 (a) (1) which involves the use of: a. “Abusive indecent, profane, or vulgar language in a public place and the language by its very utterance tend to incite an immediate breach of the peace. b. This offense requires the language to be both uttered in a “public place” and its utterance must tend to “incite an immediate breach of the peace.” Section 1.07 (a) (40) of the Penal code defines a “public place” as follows: 2. “Public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office building, transport facilities, and shops.” a. It is clear that even privately owned property can be considered a “public place” if a substantial group of the public has access to it. Also, refer to section 42.01 (c), which addresses consequences occurring in a public place from acts committed in non-public places. b. Since Section 42.01 (a) (1) requires that the language be uttered in a public place or affect a public place for a violation to be committed, it is obvious that an officer cannot arrest nor cite a person for swearing in his own house or in a place where the; public does not have access to or if there are no consequences in a public place as a result of the act. Furthermore, the language by its very utterance must tend to incite a breach of the peace. Court cases have held that a peace officer cannot be incited to breach the peace. Therefore, abusive language directed at an officer or uttered in the presence of the officer only, is not an offense! There must be a third party present who heard the language and could be incited to breach the peace by the language. Lewis v. City of New Orleans, 415 US 130, 39 led 2d 214, 94 S.C. 970 (1974) and Gooding v. Wilson, 405 US 518, 31L. Ed 2d 408, 92 S.Ct. 1103(1972). 3. In those instances where an officer encounters an individual in a public place who is using abusive or profane language in the presence of a third party who could be incited to breach the peace, the officer must decide whether to arrest or cite the violator. This is a difficult decision to make and all the circumstances surrounding the incident must be taken into consideration. Below are some guidelines to use in making this decision: a. If the offender persists in using the abusive language in a provoking manner towards any party after the officer has either ordered him to cease the language or has informed the violator he will be cited, the officer should arrest the violator. Effective date April 30, 2014 153  b. If failure to arrest the violator will escalate or aggravate the situation to the point that either the violator or a third party’s safety would be placed in jeopardy, or the disturbance would be continued, the officer should arrest the violator. c. If the violator refuses to depart the scene of the disturbance, then the officer should arrest the violator. d. If, in the judgment of the officer, the violator’s true identity is in questions and therefore it is unlikely that he would appear in Court to answer the charge, the officer should arrest the violator. 4. In most other circumstances, the officer should only cite the violator. The disorderly conduct offenses listed in subsection (2), (3), (4), and (5) of Section 42.01 (a) should be handled much in the same manner as described for the abusive language offense and should require only a citation in lieu of arrest in most cases. D. OTHER DISORDERLY CONDUCT OFFENSES 1. Subsection (6) of Section 42.01 (a) refers to fighting with another in a public place. In such instances, there is usually another offense committed in this process such as assault under Section 22.01 (a) (1) which is a class “A” misdemeanor. An officer should make an arrest of the combatants if Section 22.01 (a) (1) is applicable or if it appears likely that failure to arrest would jeopardize the safety of any party. 2. It is the continuing policy of this Office, that persons in violation of subsection (7) and (8) of Section 42.01 (a) should be arrested due to the nature of these offenses. These offenses are concerned with “window peeping” and have the potential of escalating to a much more serious offense. 3. Subsection (12) of Section 42.01 (a) concerns exposure of the anus or genitals in a public place. This offense is different from “indecent exposure” offense in Section 21.08 is a class “B” misdemeanor and requires as an element the “intent to arouse or gratify the sexual desire of any person.” The exposure offense under Section 42.01 (a) (12) does not contain the sexual desire element and is a class “C” misdemeanor. Basically, the exposure offense of Section 42.01 (a) (12) manifests itself in two forms. The first form is the indiscriminate person who urinates and who uses a public place as a toilet in a reckless manner. These individuals usually do not have a sexual intent or motive in mind when they relieve themselves in public. Such individuals are usually intoxicated or operating under an “emergency” situation and should have exercised better sense. This type of offender should not be arrested but instead issued a citation if the officer feels it is necessary. The second manifestation of this offense is the person who exposes his or herself for a sexual motive and should be arrested. It is advised, however, that the officer charge this type of offender with an offense under Section 21.08 instead of Section 42.01-(a) (12). E. PUBLIC INTOXICATION 1. It is not against the law to appear in public in an intoxicated state. According to Section 42.08 of the Penal Code, there is no offense unless the person is a danger to himself or others. If a person is not a danger to himself or others he is not to be arrested or even cited. Effective date April 30, 2014 154  If a deputy discovers a person in a public place who is intoxicated to the point that he is a danger to himself or others, the deputy MUST: a. Arrest the person for his own or the public’s protection, or b. Release the person into the custody of a responsible adult. NOTE: NEVER WRITE A CITATION FOR PUBLIC INTOXICATION! c. Writing a ticket to a person who is intoxicated to the point of being a danger to himself or others in lieu of taking him into custody is an invitation to a lawsuit. d. Although tickets for public intoxication are prohibited, this does not mean that deputies are to routinely arrest intoxicated individuals. NOTE: EVERY REASONABLE EFFORT MUST BE MADE TO AVOID ARRESTING AN INTOXICATED INDIVIDUAL AS LONG AS PUBLIC SAFETY IS NOT JEOPARDIZED! 2. Deputies are to first establish whether the person is intoxicated to the point of actually being in danger to himself or others. Below are some criteria to be used in making this determination. a. The person’s performance on any field sobriety tests administered by the deputy. (Balance coordination, etc.) b. Whether the person has access to a motor vehicle. c. Whether the person is conscious of where he is and remembers where he lives. d. The location where the deputy finds the intoxicated person: 1) Does he live nearby? 2) Is it a bad neighborhood? 3) Whether vehicle traffic is heavy and a potential danger to the person? 4) Is the person in the presence of individuals who may take advantage of him or that he may attack them? 3. Whether the person is involved in a disturbance, trespassing or about to commit a crime. 4. The person’s attitude. If the person is cooperative, it is a good indication that he can still use his mental faculties. 5. Each of the above criteria, by itself is not enough to establish the necessary element of endangerment. However, a combination of these criteria may establish endangerment. Effective date April 30, 2014 155  6. Once the deputy has established a legitimate possibility of endangerment, he must make a reasonable effort to find some alternative to incarceration. Below are some suggestions: a. Releasing the person into the custody of a sober responsible adult friend or family member. b. Transporting the person to his home, if the person is cooperative and lives a short distance away c. Allowing the person to call a taxicab for a ride home. NOTE: NEVER ALLOW AN INTOXICATED PERSON TO “SLEEP IT OFF” INSIDE OF A MOTOR VEHICLE! The chances for disaster are great. There is a good possibility that the drunk will wake up after the deputy leaves the scene and drive off in the vehicle possibly causing a wreck down the highway. Effective date April 30, 2014 156