Arrests

• Author: Mark G. Daniel/Robert K. Gill
• Pages: 61-94

ARRESTS

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Chapter 1

ARRESTS

Table of Contents

§1:10 What Is an Arrest

§1:20 Warrantless Arrests

§1:21 Probable Cause Requirement

§1:21.1 Establishing Probable Cause

§1:21.2 Temporary Detentions Based on Reasonable Suspicion

§1:21.3 Exclusionary Rule

§1:30 Authority for Warrantless Arrests

§1:31 CCP Art. 14.01. Offense Within View

§1:31.1 Warrantless Arrests by Peace Officers

§1:31.2 Who Is a Peace Officer

§1:31.2.1 Statutory Law

§1:31.2.2 Case Law

§1:31.3 Warrantless Arrests by Private Citizens

§1:31.4 Acts Constituting a Breach of Peace

§1:31.5 Acts Not Constituting Breach of Peace

§1:32 CCP Art. 14.02. Within View of Magistrate

§1:33 CCP Art. 14.03. Authority of Peace Officers

§1:33.1 Suspect’s Commission of Offense

§1:33.2 Suspect Found in Suspicious Place

§1:33.2.1 Places Found to Be Suspicious

§1:33.2.2 Places Found Not to Be Suspicious

§1:33.3 Assaults and Threats of Future Violence

§1:33.4 Authority of Peace Officers

§1:34 CCP Art. 14.04. When Felony Has Been Committed

§1:34.1 Credibility of Information

§1:34.2 Escape of Suspect

§1:34.3 Insufficient Time to Procure Warrant

§1:34.4 Satisfactory Proof of Escape

§1:35 Preventing Consequences of Theft Under CCP Art. 18.16

§1:36 Rights of Police Officers Making Warrantless Arrests

§1:36.1 Fresh (“Hot”) Pursuit

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ARRESTS

§1:40 Pretext Arrests

§1:50 Sources of Probable Cause

§1:51 Information Gained From Victims

§1:52 Information Gained From Ordinary Citizens

§1:53 Information Gained From Police Officers

§1:54 Information Gained From Informers

§1:55 Information Gained From Anonymous Tips

§1:60 Suppressing Warrantless Arrest

§1:61 Art. 38.23 Jury Charge

§1:70 Arrests Under Warrant

§1:71 What Is an Arrest Warrant

§1:72 What an Arrest Warrant Requires

§1:72.1 Probable Cause Requirement

§1:72.2 Accusation of Criminal Conduct

§1:72.3 Signing by a Magistrate

§1:73 Who May Issue Arrest Warrants

§1:74 Suppressing Arrest

§1:75 Suppressing Arrest Warrant

§1:75.1 Objections to Arrest Warrant

§1:75.2 Going Behind Affidavit and Warrant

§1:75.3 Article 38.23 Jury Charge

§1:76 Making Arrest

1-3 A §1:21

ARRESTS

§1:10 What Is an Arrest

CCP Art. 15.22. When a person is arrested

A person is arrested when he has been

actually placed under restraint or taken

into custody by an officer or person

executing a warrant of arrest, or by an

officer or person arresting without a

warrant.

An arrest occurs when a person’s liberty of

movement is restricted or restrained. Amores v.

State, 816 S.W.2d 417 (Tex. Crim. App. 1991).

A person is seized for constitutional purposes,

when under all of the circumstances, a reasonable

person would believe that he is not free to leave.

Nottingham v. State, 908 S.W.2d 585 (Tex.App.—

Austin 1995).

A person is seized, i.e., arrested, only when he

has been restrained by means of physical force

or when he has submitted to a show of authority.

California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547,

113 L.Ed.2d 690 (1991); Medford v. State, 13

S.W.3d 769 (Tex. Crim. App. 2000).

In determining whether a private citizen’s

actions constituted an arrest, the test is whether

there has been such a display of authority that a

reasonable person would believe that he was not

free to leave. McGuire v. State, 847 S.W.2d 684

(Tex.App.—Houston [1st Dist.] 1993).

The police officer’s subjective intent is one

factor to be considered in determining whether a

suspect is in custody. Miller v. State, 815 S.W.2d

805 (Tex.App.—Austin 1991, pet. ref’d).

The fact that a suspect has accompanied a police

officer to a station does not amount to a showing

that he is in custody or under arrest. Anderson v.

State, 932 S.W.2d 502 (Tex. Crim. App. 1996).

The handcuffing of a suspect does not always

mean that he is under arrest. Rhodes v. State, 945

S.W.2d 115 (Tex. Crim. App. 1997).

A person who is temporarily handcuffed and

detained, but then released, has been seized and

detained under the Fourth Amendment, but has not

necessarily been arrested. State v. Sheppard, 271

S.W.3d 281 (Tex. Crim. App. 2008).

§1:20 Warrantless Arrests

§1:21 Probable Cause Requirement

It is state law and not federal law that governs

the legality of state arrests; so long as the state

law does not violate federal constitutional protec-

tions against unreasonable searches and seizures.

Amores v. State, 816 S.W.2d 407 (Tex. Crim. App.

1991).

There is no federal constitutional require-

ment that a warrant be obtained as a pre-requisite

to the validity of an arrest in a public place even

if there was adequate time to obtain one, so long

as probable cause exists. U.S. v. Watson, 423 U.S.

411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

A peace officer may arrest an offender without

a warrant only if there is probable cause for the

arrest. Hafford v. State, 828 S.W.2d 275 (Tex.

App.—Fort Worth 1992, pet. ref’d).

Where officers find contraband during a Terry

stop that establishes probable cause that the defen-

dant has committed an offense within view of offi-

cers, the defendant can be arrested without a war-

rant. Griffin v. State, 215 S.W.3d 403 (Tex. Crim.

App. 2006).

These exceptions to the warrant requirement are

strictly construed. Dejarnette v. State, 732 S.W.2d

346 (Tex. Crim. App. 1987); Holland v. State, 788

S.W.2d 112 (Tex.App.—Dallas 1990).

Probable cause for a warrantless arrest requires

that the officer have a reasonable belief that, based

on facts and circumstances within the officer’s

personal knowledge, or of which the officer has

reasonably trustworthy information, an offense has

been committed. Torres v. State, 182 S.W.3d 899

(Tex. Crim. App. 2005).

Under the collective knowledge doctrine, when

several officers are cooperating, their cumulative

information may be considered in assessing reason-

able suspicion or probable cause. State v. Martinez,

569 S.W.3d 621, 626 (Tex. Crim. App. 2019) citing

State v. Duran, 396 S.W.3d 563, 569 n.12 (Tex.

Crim. App. 2013).

Evidence of communication between officers

is not always a necessary requirement to apply

the collective knowledge doctrine. The sum of the

information known to the cooperating officers—

their cumulative information—should be consid-