Arrest, Search and Seizure 10

Art. 18.011. SEALING OF AFFIDAVIT.

(a) An attorney representing the state in the prosecution of felonies may request a district judge or the judge of an appellate court to seal an affidavit presented under Article 18.01(b). The judge may order the affidavit sealed if the attorney establishes a compelling state interest in that: (1) public disclosure of the affidavit would jeopardize the safety of a victim, witness, or confidential informant or cause the destruction of evidence; or (2) the affidavit contains information obtained from a court-ordered wiretap that has not expired at the time the attorney representing the state requests the sealing of the affidavit.

· PC 2.02 EXCEPTION

(a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.

****Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.

(a) At a defendant's appearance before a magistrate after arrest for an offense involving family violence or an offense under Section 20A.02, 20A.03, 22.011, 22.012, 22.021, or 42.072, Penal Code, the magistrate may issue an order for emergency protection on the magistrate's own motion or on the request of: (1) the victim of the offense; (2) the guardian of the victim; (3) a peace officer; or (4) the attorney representing the state.

Art. 15.20. DUTY OF SHERIFF RECEIVING NOTICE.

(a) Subject to Subsection (b), the sheriff receiving the notice of arrest and commitment under Article 15.19 shall forthwith go or send for the arrested person and have the arrested person brought before the proper court or magistrate. (b) A sheriff who receives notice under Article 15.19(a)(2) of a warrant issued under Section 508.251, Government Code, shall have the arrested person brought before the proper magistrate or court before the 11th day after the date the person is committed to the jail of the county in which the person was arrested.

Art. 18.07. DAYS ALLOWED FOR WARRANT TO RUN.

(a) The period allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is: (1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples; (2) 10 whole days if the warrant is issued under Article 18B.354; or (3) three whole days if the warrant is issued for a purpose other than that described by Subdivision (1) or (2). (b) The magistrate issuing a search warrant under this chapter, Chapter 18A, or Chapter 18B shall endorse on the search warrant the date and hour of its issuance.

Art. 17.153. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF BOND WHERE CHILD ALLEGED VICTIM.

(a) This article applies to a defendant charged with a felony offense under any of the following provisions of the Penal Code, if committed against a child younger than 14 years of age: (1) Chapter 21 (Sexual Offenses); (2) Section 25.02 (Prohibited Sexual Conduct); (3) Section 43.25 (Sexual Performance by a Child); (4) Section 20A.02 (Trafficking of Persons)

Art. 17.29. ACCUSED LIBERATED.

(a) When the accused has given the required bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty.

o Identify Mandatory Arrest Authority - CCP 14.03(b)

(b) A peace officer shall arrest, without a warrant, a person the peace officer has probable cause to believe has committed an offense under Section 25.07, Penal Code, if the offense is committed in the presence of the peace officer.

**** Define when a person is arrested - CCP 15.22;

- 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. You have to Accumulative Probable Cause.

Discuss Offense within view - CCP 14.01

-(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. (b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. -Note the difference between paragraphs (a) and (b). Paragraph (a) sets limited conditions to be met for either a peace officer or "any other person" to make a warrantless arrest while paragraph (b) sets the conditions for only peace officers to make a warrantless arrest.

· Probable Cause

-is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. -reasonable grounds (for making a search, pressing a charge, or making arrest etc.).

o The probable cause test, then, must show?

-that the facts and circumstances of the officer's knowledge are sufficient enough to warrant a reasonable person to believe a suspect has committed, is committing, or is about to commit a crime. -o See Beck v. Ohio, 379 U.S. 89 (1964); (If subjective good faith alone (of probable cause) were the test, the protection of the Fourth Amendment(unreasonable search and seizure) would evaporate, and the people would be 'secure in their persons, houses, papers, and effects' only in the discretion of the police).

• Magistrate may issue warrant or summons - CCP 15.03 (a) A magistrate may issue a warrant of arrest or a summons:

1. In any case in which he is by law authorized to order verbally the arrest of an offender; 2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; and 3. In any case named in this Code where he is specially authorized to issue warrants of arrest.

· Warrant issued by other magistrate - CCP 15.07 When a warrant of arrest is issued by any mayor of an incorporated city or town, it cannot be executed in another county than the one in which it issues, except:

1. It be endorsed by a judge of a court of record, in which case it may be executed anywhere in the State; or 2. If it be endorsed by any magistrate in the county in which the accused is found, it may be executed in such county. The endorsement may be: "Let this warrant be executed in the county of ..........". Or, if the endorsement is made by a judge of a court of record, then the endorsement may be: "Let this warrant be executed in any county of the State of Texas". Any other words of the same meaning will be sufficient. The endorsement shall be dated, and signed officially by the magistrate making it.

Requisites of warrant CCP 15.02 It issues in the name of "The State of Texas", and shall be sufficient, without regard to form, if it have these substantial requisites:

1. It must specify the name of the person whose arrest is ordered, if it be known, if unknown, then some reasonably definite description must be given of him. 2. It must state that the person is accused of some offense against the laws of the State, naming the offense. 3. It must be signed by the magistrate, and his office be named in the body of the warrant, or in connection with his signature.

· Duties of arresting officer and magistrate - CCP 15.17 (1) (a) In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than?

48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in any other county of this state. The arrested person may be taken before the magistrate in person or the image of the arrested person may be presented to the magistrate by means of an electronic broadcast system.

****10.7 Describe the basic criteria for obtaining, executing and returning an arrest warrant. · Arrest under warrant duties: · Warrant of arrest - CCP 15.01

A "warrant of arrest" is a written order from a magistrate, directed to a peace officer or some other person specially named, commanding him to take the body of the person accused of an offense, to be dealt with according to law.

****Mere suspicion:

A hunch or the feeling of intuition. Although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well, mere suspicion is insufficient proof of any fact in a court of law. (Criminal Procedure for the Law Enforcement Professional, 11th edition, Ferdico, Fradella, and Totten, Wadsworth Cengage Learning, 2013).

· Time of arrest - CCP 15.23

An arrest may be made on any day or at any time of the day or night.

o Discuss Violation of a Protective Order in the officer's presence. (CCP14.03(b))

Art. 14.03. AUTHORITY OF PEACE OFFICERS. (a) Any peace officer may arrest, without warrant: (1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws

Reasonable Suspicion

Evidence that justifies an officer in stopping and questioning an individual believed to be involved in criminal activity (less then probable cause) -(Reasonable suspicion is based upon the totality of the circumstances and is less burden than Probable Cause.)

Art. 17.033. RELEASE ON BOND OF CERTAIN PERSONS ARRESTED WITHOUT A WARRANT.

Except as provided by Subsection (c), a person who is arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $5,000, not later than the 24th hour after the person's arrest if the person was arrested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense. If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.

· Search warrant may authorize arrest - CCP 18.03

If the facts presented to the magistrate under Article 18.02 of this chapter also establish the existence of probable cause that a person has committed some offense under the laws of this state, the search warrant may, in addition, order the arrest of such person.

Prisoner discharged if not timely demanded CCP 15.21

If the proper office of the county where the offense is alleged to have been committed does not demand an arrested person described by Article 15.19 and take charge of the arrested person before the 11th day after the date the person is committed to the jail of the county in which the person is arrested, a magistrate in the county where the person was arrested shall: (1) release the arrested person on personal bond without sureties or other security; and (2) forward the personal bond to: (A) the sheriff of the county where the offense is alleged to have been committed; or (B) the court that issued the warrant of arrest.

Art. 17.22. MAY TAKE BAIL IN FELONY.

In a felony case, if the court before which the same is pending is not in session in the county where the defendant is in custody, the sheriff or other peace officer, or a jailer licensed under Chapter 1701, Occupations Code, who has the defendant in custody may take the defendant's bail bond in such amount as may have been fixed by the court or magistrate, or if no amount has been fixed, then in such amount as such officer may consider reasonable.

Art. 15.25. MAY BREAK DOOR.

In case of felony, the officer may break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose.

Art. 17.21. BAIL IN FELONY.

In cases of felony, when the accused is in custody of the sheriff or other officer, and the court before which the prosecution is pending is in session in the county where the accused is in custody, the court shall fix the amount of bail, if it is a bailable case and determine if the accused is eligible for a personal bond; and the sheriff or other peace officer, unless it be the police of a city, or a jailer licensed under Chapter 1701, Occupations Code, is authorized to take a bail bond of the accused in the amount as fixed by the court, to be approved by such officer taking the same, and will thereupon discharge the accused from custody. The defendant and the defendant's sureties are not required to appear in court.

Art. 17.20. BAIL IN MISDEMEANOR.

In cases of misdemeanor, the sheriff or other peace officer, or a jailer licensed under Chapter 1701, Occupations Code, may, whether during the term of the court or in vacation, where the officer has a defendant in custody, take of the defendant a bail bond.

· **What force may be used - CCP 15.24

In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the accused.

CCP 18.08. POWER OF OFFICER EXECUTING WARRANT.

In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same.

o Discuss Must take offender before magistrate - CCP 14.06 -Except as otherwise provided by this article, in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall?

take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

·**** Arrest for out-of-county offense - CCP 15.18 (a-1) If the arrested person is taken before a magistrate of a county other than the county that issued the warrant, the magistrate shall inform the person arrested of the procedures for requesting appointment of counsel and ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time. If the person requests the appointment of counsel, the magistrate shall,?

without unnecessary delay but not later than 24 hours after the person requested the appointment of counsel, transmit, or cause to be transmitted, the necessary request forms to a court or the courts' designee authorized under Article 26.04 to appoint counsel in the county issuing the warrant.

**** Search warrant - CCP 18.01 A "search warrant" is a?

written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order.

10.5 Discuss Probable Cause and Arrest without Warrant:

· An officer may arrest for that offense which the probable cause leads the officer to believe is occurring or has occurred. Whether or not probable cause was present to support an arrest or search is a question that will be resolved by the courts. · The court will examine the "totality of the circumstances" surrounding the seizure or detention to determine if there were sufficient facts and circumstances present to satisfy the Fourth Amendment. · Only the information known to the officer at the time of the seizure or search will be considered by the court - any evidence found after the arrest or during the search will not be admissible to prove probable cause. · Although the courts are the ultimate arbiters of what constitutes probable cause, the U.S. Supreme Court in the Gates opinion also stated: "Perhaps the central teaching of our past decisions bearing on the probable cause standard is that it is a practical, non-technical conception. In dealing with probable cause...as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men (peace officers), not legal technicians (attorneys), act." 421 U.S. at 231.

******10.3 Discuss actions a law enforcement officer can take having "mere suspicion" What can a peace officer do with mere suspicion?

· Computer checks may be made of license plates. Surveillance may occur. Officers can lay back and watch the individual(s) or activity suspected for additional facts and circumstances that amount to more than mere suspicion. · Officers can initiate a police-citizen encounter so long as the officer understands the persons approached do not have to identify themselves or answer the officer's questions, and are free to walk away at any time. · The officer's objective is to obtain articulable facts and circumstances that rise to the level of either reasonable suspicion that gives officers the power to detain or probable cause, which permits the officer to arrest.

10.2 Discuss the three classifications of interactions between peace officers and persons

· Consensual Encounters: Peace officers are free to approach and ask questions of persons so long as officers recognize that those persons can refuse to identify themselves, refuse to cooperate, refuse to answer questions, and simply walk away. Florida v. Royer, 460 U.S. 491 (1983); · Investigatory Stops/Detentions: The temporary seizure of a person for investigation based on an officer's reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). · Arrests: Take persons into custody for purposes of charging them with a crime based on an officer's establishment of probable cause. U.S. v. Mendenhall, 446 U.S. 544 (1980).

Art. 15.12. [229] [276] [264] WARRANT OR COMPLAINT MUST BE UNDER SEAL.

No manager of a telegraph office shall receive and forward a warrant or complaint unless the same shall be certified to under the seal of a court of record or by a justice of the peace, with the certificate under seal of the district or county clerk of his county that he is a legally qualified justice of the peace of such county; nor shall it be lawful for any magistrate to endorse a warrant received by telegraph, or issue a warrant upon a complaint received by telegraph, unless all the requirements of the law in relation thereto have been fully complied with.

CCP 18.11. CUSTODY OF PROPERTY FOUND.

Property seized pursuant to a search warrant shall be kept as provided by the order of a magistrate issued in accordance with Article 18.10 of this code.

o There are two different but similar definitions of probable cause, one for search and one for arrest, because different types of information are required to establish probable cause in each instance: -Probable Cause to Arrest:

See Brinegar v United States, 338 US 160 (1949); (Probable cause exists where the facts and circumstances within the officer's knowledge, and of which they have reasonable trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.)

-o There are two different but similar definitions of probable cause, one for search and one for arrest, because different types of information are required to establish probable cause in each instance: Probable cause to search:

See Carroll v. United States, 267 U.S. 132, (1929); Probable cause to search exists when "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that [seizable property would be found in a particular place or on a particular person]

Miranda V Arizona

Supreme Court held that criminal suspects must be informed of their right to consult with an attorney and of their right against self-incrimination prior to questioning by police. Miranda v. Arizona was a significant Supreme Court case that ruled that a defendant's statements to authorities are inadmissible in court unless the defendant has been informed of their right to have an attorney present during questioning and an understanding that anything they say will be held against them.

How warrant is executed - CCP 15.16

The officer or person executing a warrant of arrest shall without unnecessary delay take the person or have him taken before the magistrate who issued the warrant or before the magistrate named in the warrant, if the magistrate is in the same county where the person is arrested. If the issuing or named magistrate is in another county, the person arrested shall without unnecessary delay be taken before some magistrate in the county in which he was arrested. (b) Notwithstanding Subsection (a), to provide more expeditiously to the person arrested the warnings described by Article 15.17, the officer or person executing the arrest warrant may as permitted by that article take the person arrested before a magistrate in a county other than the county of arrest.

**** Define Constructive Custody - CCP 11.21;

The words "confined", "imprisoned", "in custody", "confinement", "imprisonment", refer not only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits.

CCP 18.09. SHALL SEIZE ACCUSED AND PROPERTY.

When the property which the officer is directed to search for and seize is found he shall take possession of the same and carry it before the magistrate. He shall also arrest any person whom he is directed to arrest by the warrant and immediately take such person before the magistrate. For purposes of this chapter, "seizure," in the context of property, means the restraint of property, whether by physical force or by a display of an officer's authority, and includes the collection of property or the act of taking possession of property.

• Limited conditions to be met for either a?

a peace officer or "any other person" to make a warrantless arrest and the conditions for only peace officers to make a warrantless arrest.

affidavit

a written statement confirmed by oath or affirmation, for use as evidence in court.

Execution of warrants - CCP 18.06

a) A peace officer to whom a search warrant is delivered shall execute the warrant without delay and forthwith return the warrant to the proper magistrate. A search warrant issued under Article 18B.354 must be executed in the manner provided by Article 18B.355 not later than the 11th day after the date of issuance. In all other cases, a search warrant must be executed within three days from the time of its issuance. A warrant issued under this chapter, Chapter 18A, or Chapter 18B shall be executed within a shorter period if so directed in the warrant by the magistrate.

- Discuss Arrest by peace officer from other jurisdiction - CCP 14.051 -(a) 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. (b) In this article, "fresh pursuit" means a pursuit without unreasonable delay by a peace officer of a person the officer reasonably suspects has committed a felony.

**** Discuss When felony has been committed - CCP 14.04 -Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a?

credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused. See Frye v. State, 639 SW2d 463 (Tex. Crim. App. 1982), (Peace officer need only show that he reasonably believed escape was imminent and no time to procure a warrant).

o Discuss Privilege of Legislators - CCP 1.21 -Senators and Representatives shall?

except in cases of treason, felony or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same, allowing one day for every twenty miles such member may reside from the place at which the Legislature is convened.

· Warrant extends to every part of the state - CCP 15.06 A warrant of arrest, issued by any county or district clerk, or by any magistrate (except mayors of an incorporated city or town), shall?

extend to any part of the State; and any peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this State.

· When a person is arrested - CCP 15.22 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.

o Discuss Must take offender before magistrate - CCP 14.06 (c) If the person resides in the county where the offense occurred, a peace officer who is charging a person with committing an offense that is a Class A or B misdemeanor may?

instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate of this state as described by Subsection (a), the name and address of the person charged, and the offense charged. (d) Subsection (c) applies only to a person charged with committing an offense under: (1) Section 481.121, Health and Safety Code, if the offense is punishable under Subsection (b)(1) or (2) of that section; (1-a) Section 481.1161, Health and Safety Code, if the offense is punishable under Subsection (b)(1) or (2) of that section; (2) Section 28.03, Penal Code, if the offense is punishable under Subsection (b)(2) of that section; (3) Section 28.08, Penal Code, if the offense is punishable under Subsection (b)(2) or (3) of that section; (4) Section 31.03, Penal Code, if the offense is punishable under Subsection (e)(2)(A) of that section; (5) Section 31.04, Penal Code, if the offense is punishable under Subsection (e)(2) of that section; (6) Section 38.114, Penal Code, if the offense is punishable as a Class B misdemeanor; or (7) Section 521.457, Transportation Code.

o Discuss Must take offender before magistrate - CCP 14.06 (b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may,

instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, the offense charged, and the following admonishment, in boldfaced or underlined type or in capital letters: "If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney."

****Define Restraint - CCP 11.22.

is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.

*****Art. 17.01. DEFINITION OF "BAIL"

is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.

writ of habeas corpus

is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody.

****Identify Rights of officer - CCP 14.05 In each case enumerated where arrests 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: (1) a person who resides in the residence consents to the entry; or (2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.

· Reasonable Belief- PC 1.07(a)(42

means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

· See Payton v. New York, 100 US 1371 (1980); (absent exigent circumstances, a peace officer may?

not make a warrantless entry into a suspect's home to make a routine felony arrest)

10.8 Describe the basic criteria for Warrantless Search · Warrantless Search Case Law?

o Probable Cause and Exigent Circumstances o See Brigham City, Utah v. Smart, 126 US 1943 (2006). (Exigent circumstances such as breaking up a violent fight permit warrantless entry into dwelling without a warrant). o See Kentucky v. King, 563 US 452 (2011); (Peace officers cannot create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, In this case, the officers did not create the circumstances, the reaction of the occupants of the apartment did).

o Discuss Uniform Criminal Extradition Act - CCP 51.13, Sec. 14 The arrest of a person may be lawfully made also by any peace officer or private person, without a warrant upon?

reasonable information that the accused stands charged in the courts of a State with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant.

*****Discuss Preventing the consequences of theft - CCP18.16 Any person has a right to prevent the consequences of theft by?

seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.

o Identify Authority of peace officers - CCP 14.03 · Peace officers must be able to articulate?

specific facts and circumstances to justify an arrest regarding "suspicious places "and "circumstances". See Dyar v. State, 125 SW3d 460 (Tex. Crim. App. 2003) which provides a detailed explanation of the statute.

· How return made - CCP 18.10 Upon returning the search warrant, the officer shall?

state on the back of the same, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.

*****Identify Authority of peace officers - CCP 14.03 (a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws; (2) persons who the peace 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; (3) persons who the peace officer has probable cause to believe have committed an offense defined by (Section 25.07VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE, CHILD ABUSE OR NEGLECT, SEXUAL ASSAULT OR ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING CASE.), Penal Code, if the offense is not committed in the presence of the peace officer; (4) persons who the peace officer has probable cause to believe have committed an offense involving family violence; (5) persons who the peace officer has probable cause to believe have prevented or interfered with an individual's ability to place a telephone call in an emergency, as defined by Section 42.062(d), Penal Code, if the offense is not committed in the presence of the peace officer; or (6) a person who makes a statement to the peace officer that would be admissible against the person under Article 38.21 and establishes probable cause to believe that the person has committed a felony. (b) A peace officer shall arrest, without a warrant, a person the peace officer has probable cause to believe has committed an offense under Section 25.07,VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE, CHILD ABUSE OR NEGLECT, SEXUAL ASSAULT OR ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING CASE.), Penal Code, if the offense is committed in the presence of the peace officer. (c) If reasonably necessary to verify an allegation of a violation of a protective order or of the commission of an offense involving family violence, a peace officer shall remain at the scene of the investigation to verify the allegation and to prevent the further commission of the violation or of family violence. (d) A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code. (e) The justification for conduct provided under Section 9.21, Penal Code, applies to a peace officer when the peace officer is performing a duty required by this article. (f) In this article, "family violence" has the meaning assigned by Section 71.004, Family Code. (g)(1) A peace officer listed in Subdivision (1), (2), or (5), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, other than a violation of Subtitle C, Title 7, Transportation Code. (2) A peace officer listed in Subdivision (3), Article 2.12, who is licensed under Chapter 1701, Occupations Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer described in this subdivision who is outside of that officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located. (3) A peace officer making an arrest under this subsection shall as soon as practicable after making the arrest notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of: (A) the person committing the offense and take the person before a magistrate in compliance with Article 14.06; and (B) any property seized during or after the arrest as if the property had been seized by a peace officer of that law enforcement agency.

*****Grounds for issuance - CCP 18.02 -(a) A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a penal offense; (2) property specially designed, made, or adapted for or commonly used in the commission of an offense; (3) arms and munitions kept or prepared for the purposes of insurrection or riot; (4) weapons prohibited by the Penal Code; (5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia; (6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law; (7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state; (8) any property the possession of which is prohibited by law; (9) implements or instruments used in the commission of a crime; (10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense; (11) persons; (12) contraband subject to forfeiture under Chapter 59 of this code; (13) electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage; or (14) a cellular telephone or other wireless communications device, subject to Article 18.0215. (b) For purposes of Subsection (a)(13), "electronic communication," "electronic storage," and "wire communication" have the meanings assigned by Article 18.20, and "electronic customer data" has the meaning assigned by Article 18.21.

· Contents of warrant - CCP 18.04 A search warrant issued under this chapter shall be sufficient if it contains the following requisites:

(1) that it run in the name of "The State of Texas"; (2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched; (3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; (4) that it be dated and signed by the magistrate; and (5) that the magistrate's name appear in clearly legible handwriting or in typewritten form with the magistrate's signature

· Duties of arresting officer and magistrate - CCP 15.17 (4) The recording shall be preserved until the earlier of the following dates:

(1) the date on which the pretrial hearing ends; or (2) the 91st day after the date on which the recording is made if the person is charged with a misdemeanor or the 120th day after the date on which the recording is made if the person is charged with a felony. The counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction. For purposes of this subsection, "electronic broadcast system" means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure Internet videoconferencing.

• Magistrate may issue warrant or summons - CCP 15.03 (b) A summons may be issued in any case where a warrant may be issued, and shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place. The summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the defendant's last known address. If a defendant fails to appear in response to the summons a warrant shall be issued. (c) For purposes of Subdivision 2, Subsection (a), a person may appear before the magistrate in person or the person's image may be presented to the magistrate through an electronic broadcast system. (d) A recording of the communication between the person and the magistrate must be made if the person's image is presented through an electronic broadcast system under Subsection (c). If the defendant is charged with the offense, the recording must be preserved until:

(1) the defendant is acquitted of the offense; or (2) all appeals relating to the offense have been exhausted. (e) The counsel for the defendant may obtain a copy of the recording on payment of an amount reasonably necessary to cover the costs of reproducing the recording. (f) In this article, "electronic broadcast system" means a two-way electronic communication of image and sound between a person and magistrate and includes secure Internet videoconferencing.

**** Options in Lieu of Arrest for Public Intoxication - CCP 14.031 (a) In lieu of arresting an individual who is not a child, as defined by Section 51.02, Family Code, and who commits an offense under Section 49.02, Penal Code, a peace officer may release the individual if:

(1) the officer believes detention in a penal facility is unnecessary for the protection of the individual or others; and (2) the individual: (A) is released to the care of an adult who agrees to assume responsibility for the individual; or (B) verbally consents to voluntary treatment for chemical dependency in a program in a treatment facility licensed and approved by the Texas Commission on Alcohol and Drug Abuse, and the program admits the individual for treatment. (b) A magistrate may release from custody an individual who is not a child, as defined by Section 51.02, Family Code, and who is arrested under Section 49.02, Penal Code, if the magistrate determines the individual meets the conditions required for release in lieu of arrest under Subsection (a) of this article. (c) The release of an individual under Subsection (a) or (b) of this article to an alcohol or drug treatment program may not be considered by a peace officer or magistrate in determining whether the individual should be released to such a program for a subsequent incident or arrest under Section 49.02, Penal Code. (d) A peace officer and the agency or political subdivision that employs the peace officer may not be held liable for damage to persons or property that results from the actions of an individual released under Subsection (a) or (b) of this article.

-·**** Arrest for out-of-county offense - CCP 15.18 (b) Before the 11th business day after the date a magistrate accepts a written plea of guilty or nolo contendere in a case under Subsection (a)(2), the magistrate shall, if without jurisdiction, transmit to the court having jurisdiction of the offense:

(1) the written plea; (2) any orders entered in the case; and (3) any fine or costs collected in the case. (c) The arrested person may be taken before a magistrate by means of an electronic broadcast system as provided by and subject to the requirements of Article 15.17. (d) This article does not apply to an arrest made pursuant to a capias pro fine issued under Chapter 43 or Article 45.045.

***Define Custody - PC 38.01

(A) under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court of this state or another state of the United States; or(B) under restraint by an agent or employee of a facility that is operated by or under contract with the United States and that confines persons arrested for, charged with, or convicted of criminal offenses.

Notification to school required CCP 15.27

(a) A law enforcement agency that arrests any person or refers a child to the office or official designated by the juvenile board who the agency believes is enrolled as a student in a public primary or secondary school, for an offense listed in Subsection (h), shall attempt to ascertain whether the person is so enrolled. If the law enforcement agency ascertains that the individual is enrolled as a student in a public primary or secondary school, the head of the agency or a person designated by the head of the agency shall orally notify the superintendent or a person designated by the superintendent in the school district in which the student is enrolled of that arrest or referral within 24 hours after the arrest or referral is made, or before the next school day, whichever is earlier. If the law enforcement agency cannot ascertain whether the individual is enrolled as a student, the head of the agency or a person designated by the head of the agency shall orally notify the superintendent or a person designated by the superintendent in the school district in which the student is believed to be enrolled of that arrest or detention within 24 hours after the arrest or detention, or before the next school day, whichever is earlier.

Crime victims' rights - CCP 56.02 (a)(2), (4

(a) A victim, guardian of a victim, or close relative of a deceased victim is entitled to the following rights within the criminal justice system: (1) the right to receive from law enforcement agencies adequate protection from harm and threats of harm arising from cooperation with prosecution efforts; (2) the right to have the magistrate take the safety of the victim or his family into consideration as an element in fixing the amount of bail for the accused; (3) the right, if requested, to be informed: (A) by the attorney representing the state of relevant court proceedings, including appellate proceedings, and to be informed if those proceedings have been canceled or rescheduled prior to the event; and (B) by an appellate court of decisions of the court, after the decisions are entered but before the decisions are made public; (4) the right to be informed, when requested, by a peace officer concerning the defendant's right to bail and the procedures in criminal investigations and by the district attorney's office concerning the general procedures in the criminal justice system, including general procedures in guilty plea negotiations and arrangements, restitution, and the appeals and parole process;

10.1 Define terminology associated with arrest. · Proof Beyond Reasonable Doubt- PC 2.01

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

CCP Art. 18.10. HOW RETURN MADE.

Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which the warrant has been executed. The officer shall also deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The failure of an officer to make a timely return of an executed search warrant or to submit an inventory of the property taken into the officer's possession under the warrant does not bar the admission of evidence under Article 38.23. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.

· Duties of arresting officer and magistrate - CCP 15.17 (2) -The magistrate shall inform in clear language the person arrested, either in person or through the electronic broadcast system, of the?

accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel. If the person does not speak and understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as appropriate.

· Notice of arrest - CCP 15.19 (a) If the arrested person fails or refuses to give bail, as provided in Article 15.18, the arrested person shall

be committed to the jail of the county where the person was arrested. The magistrate committing the arrested person shall immediately provide notice to the sheriff of the county in which the offense is alleged to have been committed regarding: (1) the arrest and commitment, which notice may be given by mail or other written means or by secure facsimile transmission or other secure electronic means; and (2) whether the person was also arrested under a warrant issued under Section 508.251, Government Code. (b) If a person is arrested and taken before a magistrate in a county other than the county in which the arrest is made and if the person is remanded to custody, the person may be confined in a jail in the county in which the magistrate serves for a period of not more than 72 hours after the arrest before being transferred to the county jail of the county in which the arrest occurred

· Authority to arrest must be made known - CCP 15.26 In executing a warrant of arrest, it shall always?

be made known to the accused under what authority the arrest is made. The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, provided the warrant was issued under the provisions of this Code, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of arrest he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information, and beginning immediately when the warrant is executed the magistrate's clerk shall make a copy of the warrant and the affidavit available for public inspection in the clerk's office during normal business hours. A person may request the clerk to provide copies of the warrant and affidavit on payment of the cost of providing the copies.

·**** Arrest for out-of-county offense - CCP 15.18 -(a) A person arrested under a warrant issued in a county other than the one in which the person is arrested shall?

be taken before a magistrate of the county where the arrest takes place or, to provide more expeditiously to the arrested person the warnings described by Article 15.17, before a magistrate in any other county of this state, including the county where the warrant was issued. The magistrate shall: (1) take bail, if allowed by law, and, if without jurisdiction, immediately transmit the bond taken to the court having jurisdiction of the offense; or (2) in the case of a person arrested under warrant for an offense punishable by fine only, accept a written plea of guilty or nolo contendere, set a fine, determine costs, accept payment of the fine and costs, give credit for time served, determine indigency, or, on satisfaction of the judgment, discharge the defendant, as the case may indicate.

· Duties of arresting officer and magistrate - CCP 15.17 (3) -The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time. If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel?

the magistrate shall appoint counsel, If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, transmit, or cause to be transmitted to the court or to the courts' designee authorized under Article 26.04 to appoint counsel in the county, the forms requesting the appointment of counsel. The magistrate shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law. A recording of the communication between the arrested person and the magistrate shall be made.

· Issuance of search warrant to photograph injured child - CCP 18.021 -A search warrant may be issued to search for and photograph a child who is alleged to be the victim of?

the offenses of injury to a child as prohibited by Section 22.04, Penal Code; sexual assault of a child as prohibited by Section 22.011(a), Penal Code; aggravated sexual assault of a child as prohibited by Section 22.021, Penal Code; or continuous sexual abuse of young child or children as prohibited by Section 21.02, Penal Code. The officer executing the warrant may be accompanied by a photographer who is employed by a law enforcement agency and who acts under the direction of the officer executing the warrant. The photographer is entitled to access to the child in the same manner as the officer executing the warrant. In addition to the requirements of Subdivisions (1), (4), and (5) of Article 18.04 of this code, a warrant issued under this article shall identify, as near as may be, the child to be located and photographed, shall name or describe, as near as may be, the place or thing to be searched, and shall command any peace officer of the proper county to search for and cause the child to be photographed. After having located and photographed the child, the peace officer executing the warrant shall take possession of the exposed film and deliver it forthwith to the magistrate. The child may not be removed from the premises on which he or she is located except under Subchapters A and B, Chapter 262, Family Code. A search warrant under this section shall be executed by a peace officer of the same sex as the alleged victim or, if the officer is not of the same sex as the alleged victim, the peace officer must be assisted by a person of the same sex as the alleged victim. The person assisting an officer under this subsection must be acting under the direction of the officer and must be with the alleged victim during the taking of the photographs. Franks v. Delaware, 483 U.S. 154 (1978) See also Family Code 58.002

o Discuss Within view of magistrate - CCP 14.02 A peace officer may arrest, without?

warrant, when a felony or breach of the peace has been committed in the presence or within the view of a magistrate, and such magistrate verbally orders the arrest of the offender

10.8Who may give consent to search?

· Only a person with a possessory or proprietary interest in the place to be searched may give consent. Some examples of relationships that can affect consent are: o Parent/child - parents may usually consent to the search of a minor child's room o Spouses - each spouse may generally consent to a search of the entire premises; however, officers should note that if both spouses are present and one says no, then the answer is no. o Roommates - their own rooms and the common area o Landlord / tenant - a landlord may not consent to a search of a dwelling that is rented o Hotel / motel - clerks may not consent to a search of a room that is paid for o Employers - generally controlled by the presence or absence of a policy putting the employee on notice of her diminished privacy expectations o Schools - school administrators operate under a less rigorous standard than do peace officers; however, officers assigned to schools do not enjoy the same lesser standard.

10.6 Discuss the issues surrounding custodial statements.

· Peace officers must respect the citizen's right against self-incrimination as protected by the U.S. Constitution's Fifth Amendment. · Therefore, persons in custody prior to interrogation must be clearly informed by peace officers that they have the right to remain silent and that anything they say can and will be used against them in court. · These Miranda warnings also require peace officers to advise persons in custody prior to interrogation that they have the right to an attorney and that if they cannot afford an attorney, one will be appointed to represent them. Miranda v. Arizona, 384 U.S. 436 (1966). · Once persons in custody indicate their right to remain silent, interrogations must cease. If the persons in custody request an attorney, the interrogation-must-cease-until-an-attorney-is present or, alternatively, until there is at least a fourteen-day break in Miranda custody. Maryland v. Shatzer, 130 US. 1213 (2010).u · See CCP 38.22 for further requirements concerning when statements made be used. · See Creager v. State, 952 SW2d 852 (Tex. Crim. App. 1997)

****10.10 Discuss the difference between no knock search warrant vs knock and announce Warrant.

· Purpose of "no knock" warrant: allows officers to enter the premises without warning to occupants...to protect officers from being shot if occupants are known to be armed or to prevent disposal of contraband. · Disadvantage of "no knock" warrant: Occupant may believe being attacked by home invaders and try to defend self · "Knock and announce" entry, is designed to let occupants know its police that want to enter premises...they knock and announce presence and wait a reasonable amount of time. Both parties less at risk if door is opened peacefully. · Disadvantage of "knock and announce": Could give time for occupants to reach for weapons or destroy evidence. · However, little difference in how carried out: in knock and announce officers have to knock on door, but does not specify how loud knock and announcement is to be, nor how long need to wait for response. So difference of just a few seconds.

***10.11 Describe the basic court documents required to charge. · Complaint - CCP 15.04

· The affidavit made before the magistrate or district or county attorney is called a "complaint" if it charges the commission of an offense.

****10.11 Describe the basic court documents required to charge. -· Requisites of complaint - CCP 15.05

· The complaint shall be sufficient, without regard to form, if it have these substantial requisites: · 1. It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him. · 2. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense. · 3. It must state the time and place of the commission of the offense, as definitely as can be done by the affiant. · 4. It must be signed by the affiant by writing his name or affixing his mark.

*******10.4 Identify the necessary conditions for arrest.******

• Intent - A peace officer's purpose or intention to take a person into the custody of the law. • Authority - The peace officer's arrest must be made under real authority. This means the officer is authorized by law to make an arrest and the arrest is supported by probable cause. • Actual seizure - The person arrested is taken into custody either by physical force or by submission to assertion of authority. • Understanding - by the person to be arrested of the officer's intention to arrest.