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Texas Criminal Procedure
South Texas College of Law Houston
Burnett, Catherine Greene

Dean Burnett
Fall 2012
Consensual encounters————–brief investigative detentions————————–arrest
No suspicion needed                                           reasonable suspicion                           probable cause
Important Cases:
–          Terry
–          Gerstein
–          Miranda
–          [not from class – intake prior to being arrested – cops will call in and talk to an ADA before arresting someone à ADA will question them about what happened, etc., to make sure they have enough of a case to even arrest them] –          Preliminary Initial Appearance (PIA)
o    Preliminary Appearance = Critical Stage for attachment of right to counsel
–          Gerstien hearing
o    May occur simultaneously with PIA
–          Examining trial? (different than PIA. Does it come after arraignment?) 
o    Felony’s only (pre-grand jury)
–          Arraignment (“Arraignment to Indictment”)
o    fixing identity, hearing plea
–          Pre-trial Motions Hearing
–          Trial
I.                  ARRESTS
Mechanism to Challenge:
Pretrial Motion to Suppress
Was there a warrant for the arrest?
If so:
Valid Warrant? (prob cause to support the warrant?)
Valid Execution?
If not (warrantless arrest):
does the arrest fall within an exception?
DEFINITION of ARREST: (When is a person “Arrested”?)
Person arrested when actually placed under restraint or taken into custody by officer or other person [Art. 15.22] Physically restrained, or
Submit to a claim of lawful authority
Signs of constraint: (reasonable person test) officers around them; being in the police car; being handcuffed; guns pointed; someone saying “you’re under arrest”
Level of Suspicion Required for Arrest
Probable Cause
EVERY arrest (warrant or warrantless) must be accompanied by probable cause.
Definition of Probable Cause: Officer has factual knowledge based on reasonable trustworthy information the person has or is committing offense.
What establishes Probable Cause:   2 prong test —
1) Basis of knowledge [How does person reporting KNOW information?] Ex. personal observation, crime victim, eye witness, observation by other police officer, confidential informant
2) Reliability [WHY should this person be believed by magistrate?] Assume reliability of police, named civilians, and crime victim.
Confidential informant: must show reliable by using before, no criminal record, success rate
May be based on
Information from citizen (bystander or crime victim)
Personal knowledge of arresting officer  
Information from reliable informant
Probable cause cannot be based solely on anonymous tip
But anonymous tip collaborated by other reliable information may be sufficient
A defect in either prong is not per se fatal.
Corroboration: not required, but useful in strengthening weak prongs.
What is the vehicle for challenging a bad arrest?
Motion to Suppress. ∆ atty files Motion to Suppress (saying it was a bad arrest).
Result of illegal arrest:
Evidence the police obtained during an illegal arrest is excluded.             
Good Faith Exception
Evidence is not excluded if it was obtained by law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral Magistrate based on probable cause.
Terry Stop
Brief and  investigative detention without custody [Terry stop] Traffic stop and issuance of citation
Level of Suspicion
 reasonable suspicion
Police/civilian “encounter”
Consensual encounter with police where citizen is free to leave
Level of Suspicion
Note: Arrest by Officer Outside His Jurisdiction
Officer outside his jurisdiction can arrest a  person who commits an offense within officer’s view if the crime is:
Disorderly conduct or related offense
Breach of the peace [Art. 14.03 (d)] Certain officers can arrest outside their jurisdiction for any offense [Art. 14.03 (g)] Examples:  Sheriffs, Constables, Marshals, and members of DPS
A.                WARRANT ARRESTS
What Is a warrant?
Written order from Magistrate (includes justice of the peace) to Peace Officer commanding officer to take individual into custody [Art. 15.01] Who Can “Sign”?
Any Magistrate (including JP) may issue an arrest warrant
Requesting a Warrant:
1. Application:
Created by an officer who files a sworn affidavit with a Magistrate
2. Probable Cause Affidavit:
Sworn affidavit must establish probable cause to believe that named or described individual committed a particular offense at a particular time and place
Probable cause = basis of knowledge + reliability
REQUIREMENTS of a Valid Arrest Warrant — Warrant must contain:
Name of person to be arrested.
f unknown, a reasonably definite description (ex. unknown female is not enough)
Offense they are being arrested for
Signature of Magistrate
Alternatives to Arrest Warrant
Combination search and arrest warrant [Art. 18.03] (warrant approving both a search (for the gun, clothes, etc) and also authorizing the arrest of someone)
Advantage:  Officer can arrest suspect whether or not search has been carried out, and regardless of the outcome of that search
Summons [Art. 15.03] orders person to appear, but does not authorize arrest. (Ex: speeding ticket)
Capias [Art. 23.01] In General: functions like arrest warrant.
a) Writ issued by Court (or clerk)
b) Directed “to any Peace Officer of the State of Texas”
c) Commanding Officer to arrest person accused of offense and bring him before that Court immediately (or on date stated in writ)
Capias Requirements:
1) Runs in the name of “the State of Texas”
2) Names person whose arrest is ordered (or describes person)
3) Specifies offense
4) Names Court to which Capias is returnable
5) States time when Capias is returnable
6) Dated and attested official

household [Art. 14.03 (a)(4)]  
Statutory Exceptions: 911 Call
Officer has probable cause to believe suspect prevented or interfered with individual’s placing emergency telephone call [Art. 14.03 (a)(5)] (i.e. –  officer can arrest, without a warrant, someone who they see preventing another person from calling 911).
Voluntary Statements
A police officer can arrest a person who makes voluntary statements establishing probable cause that he committed a felony. [Art. 14.03] (a)(6)] (Think of it as a blurted out comment – ex. “OMG, you caught me officer. I thought I’d get away with it this time”)
Offender About to Escape
Felony has been committed and person is about to escape (no time to procure warrant)—cop can still arrest.
Note: police must reasonably believe that escape was imminent.
(Ex: police in hot pursuit, just after robbing a store)
Theft Cases
Theft and property has been recovered by officer
II.               SEARCH & SEIZURES
Search with Warrants
♦ Sufficiency of Affidavit and Warrant
♦ Duty of the Magistrate
♦ “Four Corners” Doctrine
♦ “Good Faith” Exceptions
♦ The Effect of Typographical Errors & Other Mistakes
♦ Execution, Return and Inventory
♦ Seizure of Other Evidence
♦ Evidentiary Warrants
•       Warrants (search with a warrant)
–      Contents
–      Application and Grounds
–      “Mere Evidence” Warrants
•       (18.02, #10 – catch all)
–      Execution and Return
–      Electronic Surveillance
–      Good Faith Exceptions
Some buzzwords for the Bar:
–          “unreasonable” search and seizure
–          “reliability” of information (given in affidatvit to obtain a warrant)
**********         **********         **********         **********         **********                        
ANALYSIS           (Very similar to Arrest analysis—above)
Mechanism to challenge: 
Pretrial Motion to Suppress
Prior to trial
OR, During trial, but outside jury’s presence
Warrant? (Search/Seizure done  pursuant to a warrant)
If not (warrantless search/seizure), does search/seizure satisfy a statutory exception?
Either Way: Defense Challenges (Substance v. Execution)
Why justified
Probable cause
Warrant requirement (or exception)
How conducted
Examples: scope, timing, lack of inventory (return), etc.
Exclusion from evidence before jury [i.e., fruits of the search suppressed]