You would think defining “arrest” would be a simple task, but nothing could be further from the truth. There are police encounters, which are distinguishable from police stops, detentions, and arrests. Crossing the line from a detention to an arrest is very fact specific. There are two general premises that are not seriously disputed: officers need to develop reasonable suspicion for legal stops and probable cause for lawful arrests in Texas.
This article covers scenarios under which officers in Texas can make arrests and ends with practical tips on what to do if you are detained or arrested by the police.
There are two broad categories of arrest: arrests with a warrant and arrests without a warrant.
A peace officer in Texas can submit an affidavit to a judge to obtain an arrest warrant in Texas by laying out probable cause that the person committed a criminal offense. A judge may sign a warrant authorizing arrest, but under Code of Criminal Procedure Article 18.03 a judge may also sign a search warrant that authorizes the arrest of a person.
A Texas peace officer must have two things in order to make a warrantless arrest: probable cause and statutory authority. Probable cause is developed when an officer’s logical investigation discovers facts that would lead a reasonably intelligent and prudent person to believe you have committed a crime.
The statutory authority for a warrantless arrest is laid out in Chapter 14 of the Code of Criminal Procedure and are covered below.
First, a peace officer or any other person may arrest without a warrant when the offense is committed in his or her presence or within view, and it is a felony or offense against the public peace. This statute essentially sets a standard for what might be called a citizen’s arrest. The Code of Criminal Procedure states, “Any person, which includes a peace officer, may arrest without warrant, or essentially make a citizen’s arrest when the offense is committed in his or her presence or view and it is either a felony or an offense against the public peace.”
Next, the Code of Criminal Procedures states, “A peace officer may also arrest an offender without a warrant for any offense committed in his presence or within his view.”
Next, “A peace officer may arrest without warrant on the orders of a magistrate when the offense is committed in his presence or within view of the magistrate and a felony or an offense against the public peace.”
Next, “A peace officer may arrest without warrant when a person is found in suspicious places and under circumstances which reasonably show such persons have been guilty of some felony, violation of disorderly conduct or related offenses under Penal Code Chapter 42, a breach of peace, public intoxication or they are about to commit some offense against the law.” Texas courts have held no one location by itself may be considered suspicious. Rather, whether or not a place is suspicious depends upon the circumstances surrounding the location and the incident.
Next, the Code of Criminal Procedures states a peace officer may arrest without a warrant when a person makes a res gestae statement, known in English as an excited utterance that would be admissible against the person and the statement establishes probable cause to believe the person has committed a felony.
The peace officer shall, or has no choice but to, arrest a person who has committed a violation of a protective order when the offense is committed in the presence of the officer. Again, an officer who observes a person commit the offense of violation of a protective order is mandated by the Code of Criminal Procedures to make an arrest. They have no choice. This is the only “shall” located in the CCPs warrantless arrest statutes.
A peace officer may arrest without a warrant when the peace officer has probable cause to believe a person has committed an assault resulting in bodily injury and there is a danger of further bodily injury even if the offense is not committed in the presence of the officer. A peace office may also arrest without a warrant when the peace officer has probable cause to believe the person has committed a violation of protective order. Again, even if the offense is not committed in the presence of the officer. This is different from the previous section. If a peace officer sees a person violate a protective order, the CCP mandates they shall arrest. In this section, if the peace officer didn’t see it, but has probable cause it occurred, then they may arrest.
A peace officer may also arrest without warrant when the peace officer has probable cause to believe a person has committed an offense involving family violence or the peace officer has probable cause to believe a person has prevented or interfered with an individual’s ability to place an emergency telephone call. Once again, even if the offense is not committed in the presence of the officer. To put these in perspective, the Code of Criminal Procedures statutorily restricts peace officers from making warrantless arrests for misdemeanors when the offense does not occur in the officer’s presence or view.
Finally, when it is shown by satisfactory proof to a peace officer upon the representation of a credible person that a felony has been committed, and the offender is about to escape so there is no time to procure a warrant, a peace office may pursue and arrest without warrant.
In cases where arrests may be lawfully made without a warrant, the officer is justified using all measures as if the arrest was under warrant, except the officer making an arrest without a warrant may not enter a residence unless a person who resides in the residence consents, exigent circumstances require entry without the consent of a resident or without a warrant.
Finally, a peace officer commissioned and authorized by another state to make arrests for felonies who is in fresh pursuit of a person for the purpose of arresting that person for a felony, may continue the pursuit into this state and arrest the person.
The Texas Code of Criminal Procedure states any Texas peace officer may arrest without a warrant outside of his jurisdiction a person who commits an offense in the officer’s presence or view and the offense is a felony, a disorderly conduct or related offense under Penal Code Chapter 42, an intoxication offense, or a breach of peace. Any Texas peace officer may make an arrest outside of his or her jurisdiction, as long as it falls into one of these four categories of offenses and occurs in his or her presence or view. As soon as possible, the arresting officer shall notify the law enforcement agency having jurisdiction of that location.
A city police officer or marshal may arrest in their county for any offense, including an offense under Rules of the Road Transportation Code Subtitle C Title 7 as long as they are still within the county where the city is located. Once that city police officer or marshal is outside of his or her county, they can no longer arrest for a Rules of the Road offense. A peace officer making an arrest under the subsection shall as soon as practical notify a law enforcement agency having jurisdiction. The law enforcement agency shall then take custody of the person committing the offense and take them before a magistrate and any property seized during or after the arrest as if the property had been seized by a peace officer of that law enforcement agency. Basically, five categories of Texas peace officers under the Occupations Code – sheriffs, constables, their deputies, city police officers or marshals and district or county attorney investigators – may arrest for any offense outside of their jurisdiction as long as it is not Rules of the Road under Transportation Code Subtitle C Title 7.
A city police officer or marshal may only arrest for Rules of the Road within the county where their city is located. If an arrest is made, the arresting officer must notify the agency who has jurisdiction who must then come and take custody of the person and property seized.
At all times, be polite and respectful. Sarcasm, rudeness, and defiance will only make this stressful situation worse.
Politely decline to answer any question the officer may have for you. Don’t talk to your cellmates. Don’t talk to a detective. Don’t talk to your family or friends over the phone about what happened. You may tell them how and when to bond you out, but do not discuss anything beyond that over the phone. Phone calls are recorded and can be used against you.
If you are under arrest, ask to speak with an attorney and invoke your 5thAmendment right to remain silent. You must affirmatively invoke these rights. Then stay silent. Do not speak to anyone unless it is your attorney. Once you do this, interrogation must stop. You can waive your rights by speaking with police any time after you assert your right to remain silent. In Berghuis v. Thompkins, the U.S. Supreme Court determined that saying “yes” in response to an officer asking if a suspect “believed in God” amounted to a waiver of the suspect’s right to remain silent. While the Miranda warnings a suspect receives are designed to be an obvious warning to a suspect, waiving your rights under Miranda does not require the same level of formality.
Speaking with anyone who is not your attorney can waive your previously asserted right to counsel and right to remain silent, allowing interrogation to resume.
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