Arrest, Search, and Seizure

Purpose of "no knock" warrant:

-Allows officers to enter the premises without giving a Warning to the occupants -As well to protect officers from being shot if occupants are known to be armed or to prevent disposal of contraband.

Three classifications of interactions between police and persons

1. Consensual (voluntary) encounters 2. Investigatory stops/detentions 3. Arrest

What is considered not a detention?

1. Contacting and questioning a person without acting forcefully or aggressively 2. A conversation that is non-accusatory, routine, and brief, will not be held to be anything other than a consensual encounter.

Facts Can Come From Any or a Combination of the Following

1. Facts entirely within affiant's personal knowledge; 2. Facts known by the officer combined with a tip or hearsay from an informant; or 3. Facts provided entirely from an informant, either named or unnamed. 4. Magistrate must have facts, not mere conclusions of the facts

Self-Defense PC 9.31 The use of force against another is not justified

1. In response to verbal provocation alone; 2. To resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified

With there being NO "probable cause" or "reasonable suspicion" to believe any criminal activity is occurring during a consensual encounter, what is NOT allowed?

1. No search 2. No Frisk 3. No Involuntary detention

What are two different but similar definitions of probable cause?

1. Probable cause to arrest. 2. Probable cause to search.

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 it must

1. 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. State that the person is accused of some offense against the laws of the State, naming the offense. 3. 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 An order must

1. State time, date, and place of arraignment. 2. Be signed by the Magistrate. 3. If accused fails to appear, the judge shall issue a warrant -If accused is deaf, then an interpreter must be provided. -If person was arrested unlawfully, the magistrate must release him/her. -The court must keep a record of warnings regarding the right to counsel

Administrative Regulatory Search Warrantless administrative search is deemed reasonable only if the following are met

1. Substantial governmental interest for a regulatory scheme 2. Searches are needed to further regulatory scheme 3. The regulatory scheme is certain and regular in application

Rules for Fixing Amount of Bail - CCP 17.15 The amount of bail to be required in any case is to be regulated, they are to be governed in the exercise of this discretion by the Constitution and by the following rules

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with 2. The power to require bail is not to be so used as to make it an instrument of oppression 3. The nature of the offense and the circumstances under which it was committed are to be considered. 4. The ability to make bail is to be regarded, and proof may be taken upon this point 5. The future safety of a victim of the alleged offense and the community shall be considered

Two conditions that needs to be met for a "stop and frisk" is

1. The investigatory stop must be lawful; i.e., when a police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. 2. The police officer must reasonably suspect that the person stopped is armed and dangerous.

Emergency Search The emergency is over when

1. The premises have been secured by police, and there is no imminent threat to persons 2. There is no threat that evidence will be destroyed When the emergency is over, officers must obtain a search warrant or rely on another exception for a warrantless search

Supporting Affidavit Officers should avoid using information more than _ ___ old for possessory offenses

3 days -Facts must be closely related to the time of issuance of a warrant by the magistrate. -Facts must indicate the time when the event occurred.

Days Allowed for Warrant to Run - CCP 18.07 Warrant for other purposes

3 whole days

Time of Arrest - CCP 15.23 An ________ may be made on any day or at any time of the day or night.

Arrest

Bail - CCP 17.01

Bail is 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

Magistrate's Order for Emergency Protection- CCP 17.292 In the order for emergency protection, the magistrate shall suspend a license to _______ ___ ________

Carry a handgun

Personal bond

Defendant released on his own personal recognizance.

May Take Bail in Felony - CCP 17.22 In a ________ 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 who has the defendant in custody

Felony 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.

Bail in Misdemeanor - CCP 17.20

In cases of misdemeanor, the sheriff or other peace officer, or a jailer 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

How Return Made - CCP 18.10 Officer shall state on the back of the search warrant, or on some paper attached to it, the manner in which it has been executed and shall deliver to the magistrate a copy of the _________ of the property taken under the warrant

Inventory Officer who seized property shall retain custody until the magistrate issues an order directing the manner of safekeeping the property. Except for sending evidence for laboratory analysis, no seized property is to be removed from the county without a magistrate's order.

Burden of Proof

It is the prosecution's burden to prove that the warrantless search or seizure was reasonable under the circumstances

Family Code 58.002 Photographs and Fingerprints of Children. A child may not be photographed or fingerprinted without the consent of the ________ court unless the child is

Juvenile 1. Taken into custody 2. Referred to the juvenile court for conduct that constitutes a felony or a misdemeanor punishable by confinement in jail, regardless of whether the child has been taken into custody.

Search

Katz v. U.S., 389 U.S. 347 (1967) Any governmental violation of a person's reasonable and justifiable expectation of privacy. A quest for; looking for which offends against the law by law enforcement personnel or their agents

Factors for Impoundment

-Vehicle impeding traffic or a danger to public safety -Vehicle have been released to a third party -Vehicle locked -Detention long enough to require impoundment -Connection between the vehicle and the arrest -Connection between the car and another offense

Two Primary Elements to the Vehicle Exception

1. A readily mobile motor vehicle 2. Probable cause to believe the vehicle contains contraband or criminal evidence May apply to houseboat, airplane Based on the reduced expectation of privacy of a vehicle plus its inherent mobility

Crime Victims' Rights - CCP 56.02 The right, if requested, to be informed

1. 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 2. By an appellate court of decisions of the court, after the decisions are entered but before the decisions are made public

Supporting Affidavit Generally believed that the affidavit should contain at least five things

1. Description of the place to be searched; 2. Description of the property to be seized; 3. Description of the person, if known, in charge or control of the place to be searched; 4. Allegation that a law has been violated; and 5. Facts showing probable cause to believe the property sought is located at or in place for which authority to search is requested.

Magistrate May Issue Warrant or Summons - CCP 15.03

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 3. In any case named in this Code where he is specially authorized to issue warrants of arrest

Contents of Warrant - CCP 18.04 A search warrant issued shall be sufficient if it contains the following requisites that

1. It run in the name of "The State of Texas"; 2. 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. It command any peace officer of the proper county to search forthwith the person, place, or thing named; 4. It be dated and signed by the magistrate; and 5. The magistrate's name appear in clearly legible handwriting or typewritten form with the magistrate's signature.

Factors for Curtilage

1. Proximity to the home 2. Whether the area is within an enclosure surrounding the home 3. Nature of which the area is used; and 4. Steps taken to protect the area from public view

Types of Search Warrants

1. Search Warrant CCP 18.01 (aka criminal warrant) 2. Evidentiary Search Warrant

5th Amendment of U.S. Constitution

No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

Supporting Affidavit Accusation of offense

No search warrant may issue unless a crime has been committed or probable cause exists to believe a crime has been committed

Creager v. State, 952 SW2d 852 (Tex. Crim. App. 1997)

No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that he received Miranda warnings

Disadvantage of "no knock" warrant:

Occupant may believe being attacked by home invaders and try to defend self.

Code of Criminal Procedure Art. 14.03 Any peace officer may arrest, without warrant if

Persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, breach of the peace, or public intoxication or threaten, or are about to commit some offense against the laws;

Code of Criminal Procedure Art. 14.03 Any peace officer may arrest, without warrant if

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

Testing for Communicable Diseases Following Certain Arrests - CCP 18.22 The court may direct the person to undergo the __________ or test on its own motion or on the request of the peace officer, magistrate, or correctional facility employee

Procedure If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test. The state may not use the fact that a medical procedure or test was performed on a person under this article, or use the results of the procedure or test, in any criminal proceeding arising out of the alleged offense.

Custody of Property Found - CCP 18.11 __________ seized pursuant to a search warrant shall be kept as provided by the order of a magistrate

Property

Evidentiary Search Warrant

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

_______ _________ is based upon the totality of the circumstances and is less burden than Probable Cause

Reasonable suspicion

CCP 1.21 Privilege of Legislators

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

A detention occurs when an officer intentionally applies physical restraint or initiates a ________ ___ ________ to which an objectively reasonable person innocent of wrongdoing would feel compelled to submit, and to which such a person in fact submits

Show of authority

Stop and Frisk - scope A state may require a suspect to disclose his name to an officer during a _______ _______

Terry stop Texas law requires the lawfully arrested person to provide name, DOB, and address to a peace officer

Actual Seizure

The person arrested is taken into custody either by physical force or by submission to assertion of authority.

Illinois v. Gates, 462 U.S. 213 (1983)

This case is a landmark case in the evolution of probable cause and search warrants. In this case, the Supreme Court abandons the Aguilar-Spinelli test.

Custody

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

Sealing of Affidavit - CCP 18.011 An attorney representing the state in the prosecution of __________ may request a district judge or the judge of an appellate court to seal an affidavit

Felonies

"_______ _______" means a pursuit without unreasonable delay by a peace officer of a person the officer reasonably suspects has committed a felony

Fresh pursuit

Accused Liberated - CCP 17.29 A law enforcement agency or an employee of a law enforcement agency is not______ for damages arising from complying or failing to comply

Liable

Fingernail Scrapings / Hair

May seize during brief detention (without a search warrant or arrest) if there is probable cause to believe the person committed the offense in question and there are exigent circumstances. Hair - Get search warrant or consent

Magistrate's Order for Emergency Protection- CCP 17.292 In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the ________ _________ , if any, that the party must maintain

Minimum distances Unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted

Custodial Statements

Miranda v. Arizona, 384 U.S. 436 (1966). 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

Bail Bond

Money or property of financial value serves as the security

________ _________ exists where the facts and circumstances known to the officer upon reasonable and trustworthy information would lead a man of reasonable caution and prudence to believe that the search or seizure would produce evidence pertaining to a crime.

Probable cause

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.

Restraint

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 CCP 11.22.

Indictment

Written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense

Duration of Terry Stop

-Must be only for a reasonable amount of time -The Supreme Court has refused to adopt a specific time limit on an investigative detention. -Officers need to quickly and efficiently dispel or confirm suspicions. -Normally, the courts have been OK with 10-15 minute detentions. However, shorter detentions have been found to be unreasonable. At the same time, detentions longer than 15-30 minutes may be permissible depending on the circumstances.

Incident to Lawful Arrest - Search of Premises

-Officer may search the area within the arrested person's immediate control; area from which he might gain possession of weapon or destructible evidence. -A search warrant or another exception is needed to search closed or concealed areas in the room of an arrest that is not within the wingspan or immediate area of the arrestee. -Officers may search room to room if they must exit the premises through the rooms

New York v. Belton, 453 US 454 (1981) Old law

-Officers could generally search the passenger compartment and containers within the vehicle incident to the recent arrest of the occupant of the vehicle. -The search of a vehicle incident to arrest changed significantly because of a Supreme Court ruling in 2009.

Vehicles - Scope of Search

-Officers may search every area of the vehicle and closed containers in which the object sought could reasonably be hidden. -If officers are looking for cocaine, the scope of the search is broad because of the size and nature of the cocaine. -Officers may search every area of the vehicle where it might fit. -On the other hand, the search is more restrictive if officers are searching for a large screen television. -Officers could not justify searching the glove box or other small areas of the vehicle where the television could not fit

Consent - Factors to Consider if the officer

-Order the person to do something -Continue to ask for consent after being refused -Was there any type of threat or force used -Exceed the scope of any consent that was given -Inform the person that he could refuse consent -Lie or mislead the person -Block or interfere with the person's movement -Touch the person -Retain the person's property

Consent authority

-Owner -Arrested person -Third party with common authority over or access to premises or property jointly occupied or shared

Maryland v. Buie, 110 S CT 1093 (1990). Protective Sweeps

-The Supreme allows officers to conduct a brief cursory visual inspection of the premises -Permissible only when the officer has a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Supporting Affidavit - Four Corners Rule Lagrone v. State, 742 SW 2d 659, 661 (Tex. Crim. App 1987) Oubre v. State, 542 SW 2d 875 (Tex.Crim.App. 1976).

-The court must base its decision on the facts or information contained within the four corners of the written affidavit in determining if there is sufficient probable cause for the issuance of the search warrant. -In a motion to suppress hearing, the court will usually only review what is contained to the four corners of the affidavit - just what is actually written in the document itself.

Duration of Terry Stop - Factors Considered

-Whether questions asked were related to the justification for the detention -The number of people or items involved in the detention -Returning the subject to the scene -The subject's evasive answers to questions -The officer awaiting backup while alone at night with belligerent subjects -Computer problems during registration check DO NOT TAKE A SUSPECT TO THE POLICE STATION BASED ON A TERRY DETENTION

Code of Criminal Procedure Art. 14.01, Offense Within View Texas law allows an officer to make a warrantless arrest under the following circumstances:

1. A peace officer 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. 2. A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

Description of Place to be Searched Should follow the same rules as the description in the affidavit to secure the warrant

1. All descriptions, names, etc. in the warrant should conform exactly to those in the affidavit. 2. Only the area described may be searched; should include "curtilage" (open space around a structure).

Inventory is permissible if done in good faith for one of these purposes.

1. All impounded vehicles must be inventoried and treated the same. 2. It may be done at the arrest location or at the pound. 3. Do not use inventory as a pretext to a search.

When must probable cause exist?

1. At the time of the arrest. 2. PC ceases to build at the time of the arrest 3. Probable cause for search or arrest cannot be bolstered by the results or fruits of the search or arrest itself. In other words, whether or not an officer had probable cause to make a search or arrest will be judged on the facts as they stood immediately prior to the search or arrest.

Shall Seize Accused and Property - CCP 18.09 Officer shall take possession of the property seized and carry it before the magistrate

1. Chain of custody must be maintained if the seized property is to be admitted into evidence at trial. 2. All property, implements, or contraband should be placed in the Property Room or Crime Scene Search Section in accordance with an order or standard operating procedures of the Dallas Police Department.

Magistrate's Order for Emergency Protection- CCP 17.292 The magistrate in the order for emergency protection may prohibit the arrested party from

1. Committing: a. Family violence or an assault on the person protected under the order b. An act in furtherance of an offense Trafficking of Persons, Stalking 2. Communicating: a. Directly with a member of the family or household or under the order in a threatening or harassing manner b. A threat through any person to a member of the family or household 3. Going to or near: a. the residence, place of employment, or business b. the residence, child care facility, or school where a child protected 4) possessing a firearm, unless the person is a peace officer

What can a peace officer do with mere suspicion?

1. Computer checks may be made of license plates. 2. Surveillance may occur 3. Officers can initiate a police-citizen encounter 4. The officer's objective is to obtain articulable facts

Exceptions to the warrant requirement

1. Consent 2. Stop and Frisk 3. Incident to Lawful Arrest 4. Vehicle (mobile exception) 5. Inventory 6. Plain View 7. Public Place 8. Abandoned Property 9. Emergency Search 10. Administrative (Regulatory) 11. Plain Touch 12. Substance Subject to Chemical Breakdown

Consent

1. Consent searches are part of the standard investigatory techniques of law enforcement agencies' and are a constitutionally permissible and wholly legitimate aspect of effective police activity. 2. Officers may obtain consent to search an object or premises from the person exercising authority over the object or premises. 3. To be a lawful consent search, it must be shown that consent was given voluntarily, not of duress or coercion, and that person giving consent to search the property or premises had the authority to give consent

Search Warrant - CCP 18.01 If the magistrate considers additional testimony or exhibits, the magistrate must

1. Ensure that the testimony is recorded verbatim by an electronic recording device, by a court reporter, or in writing; 2. Ensure that any recording or reporter's notes are transcribed and that the transcription is certified as accurate and is preserved; 3. Sign, certify the accuracy of, and preserve any other written record; and 4. Ensure that the exhibits are preserved.

Emergency Searches Are generally allowed when persons and/or property are in danger.

1. Fire - Officers and firemen may enter a burning building to search for persons inside and may seize any evidence of criminal activity found in plain view 2. Loud noise or Suspicious odor - Gunshots, decaying flesh, strong smell of gasoline etc. 3. Officers are allowed plain view seizure and limited search to investigate the cause of noise/odor

Detentions Factors

1. If not handled properly, a "detention" could become an "arrest" (i.e., a "de facto arrest") which, if not supported by "probable cause" to arrest, would be illegal. 2. Whether the suspect was handcuffed 3. Whether the police drew their weapons 4. Whether the police physically restrict the suspect's liberty, including by placing the suspect in a police car

Description of Property to be Seized Must particularly describe the thing to be seized. If not described in warrant, property can be seized if

1. In plain view and the officer had a right to be where he saw property 2. If not in plain view, property reasonably related to a crime being investigated under the warrant and was discovered in a good-faith search within the perimeters of the warrant 3. Contraband or anything per se illegal even if unrelated to the crime being investigated

The courts focus on what is reasonable. A major concern is a person's reasonable expectation of privacy. What does the court balance?

1. Need for effective law enforcement 2. Protect society from crime 3. Individual's reasonable expectations of privacy 4. Personal freedoms 5. Individual rights in a democracy 6. The 4th Amendment requires probable cause to obtain a search warrant, and the warrant will not issue unless the probable cause is sworn or affirmed by the affiant.

Class C misdemeanor citation must contain

1. Written notice of the time and place the person must appear before a magistrate 2. The name and address of the person charged 3. The offense charged 4. Information regarding the alternatives to the full payment of any fine or costs assessed against the person, if the person is convicted of the offense and is unable to pay that amount 5. The following admonishment, in boldfaced or underlined type or in capital letters

Duty of Sheriff Receiving Notice - CCP 15.20 Before the _____ day after the date the person is committed to the jail of the county in which the person was arrested.

11th The Sheriff shall have the arrested person brought before the proper magistrate or court

Days Allowed for Warrant to Run - CCP 18.07 Warrant to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples

15 whole days

Further Detention of Certain Persons - CCP 17.291 This detention period may be extended for an additional period not to exceed __ hours, but only if authorized in a writing directed to the person having custody of the detained person by a magistrate who concludes that:

48 1. The violence would continue if the person is released 2. If the additional period exceeds 24 hours, probable cause exists to believe that the person committed the instant offense and that, during the 10-year period on more than one occasion for an offense involving family violence or if a deadly weapon was used or exhibited

Person making arrest must, without unnecessary delay (within ___ _____of arrest), take the arrested person before the appropriate magistrate

48 hours

Intent

A peace officer's purpose or intention to take a person into the custody of the law.

Consent - Voluntariness

1. Officers may conduct a valid warrantless search if consent is given voluntarily and without duress or coercion, expressed or implied. 2. Voluntariness is a question of fact to be determined based on the totality of the circumstances. 3. An officer is not required to inform a person of the right to refuse consent before obtaining valid consent. 4. If the officer does advise, this factor is considered in the totality of the circumstances a. Valid consent cannot be obtained if coerced, explicitly or implicitly by threat or force. If it is given only after the officer conducting the search has asserted that he possesses a warrant, when in fact he does not = Not true consent. 5. The burden of proof is on the State to show that consent was voluntarily given

Sealing of Affidavit - CCP 18.011 An order issued under this section may not

1. Prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant; or 2. Affect the right of a defendant to discover the contents of an affidavit.

Grounds for Issuance - CCP 18.02 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

Inventory Not considered a search, but a routine administrative care - taking function to

1. Protect the owner's property 2. Protect the city from claims 3. Protect officers from potential danger

Miranda Rights aka Miranda Warnings

1. Right to remain silent, 2. Right to consult an attorney before being questioned by the police, 3. Right to have an attorney present during police questioning, 4. Right to a court-appointed attorney if they cannot afford one, and 5. Right to be informed that any statements they do make can and will be used in their prosecution

Limitations to Scope

1. Search must be geographically limited to areas authorized by the warrant. 2. Areas or things to be searched must be areas in which the thing to be seized may be reasonably hidden.

Shall Seize Accused and Property - CCP 18.09 An officer directed under a search warrant to search for and seize a gambling device or equipment, altered gambling equipment, or gambling paraphernalia in the discretion of the officer may

1. Seize only the programmable main circuit board of the device, equipment, or paraphernalia if that circuit board is designed as a subassembly or essential part of the device, equipment, or paraphernalia to provide the information necessary for the device, equipment, or paraphernalia to operate as a gambling device or equipment, altered gambling equipment, or gambling paraphernalia; 2. Carry the circuit board before the magistrate 3. Retain custody of the circuit board as the property seized pursuant to the warrant as required

What happens when a "consensual encounter" turns into a "detention" without legal cause and may result in one or more of the following legal consequences?

1. Suppression of any resulting evidence under the "Exclusionary Rule." 2. Criminal prosecution of the offending law enforcement officer(s) for false imprisonment. 3. Civil liability and/or criminal prosecution for violation of the subject's civil rights.

What was the result of Florida v Royer, 460 U.S. (1983)?

1. The Court concluded that the respondent was seized for purposes of the 4th Amendment. 2. Further, the detective's behavior exceeded a Terry stop. 3. Investigators were not interested in questioning him; the primary goal was searching his luggage. 4. In short, the Court concluded that detectives arrested Royer without having probable cause. Evidence: INADMISSIBLE

Use of Force Arrest and Search PC 9.51 Justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest if

1. The actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; AND 2. Before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer's direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.

Arizona v. Gant, 556 US 332 (2009) The Court recognized two circumstances for warrantless search

1. The arrestee is within reaching distance of the passenger compartment of the vehicle at the time of the search; or 2. It is reasonable to believe that the vehicle contains evidence of the offense of arrest.

Issuance of Search Warrant to Photograph Injured Child - CCP 18.021 A warrant issued under this article shall identify

1. The child to be located and photographed 2. Name or describe...the place or thing to be searched 3. Shall command any peace officer of the proper county to search for and cause the child to be photographed

Magistrate May Issue Warrant or Summons - CCP 15.03 If the defendant is charged with the offense, the recording must be preserved until

1. The defendant is acquitted of the offense 2. All appeals relating to the offense have been exhausted. 3. 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.

Plain View - Requirements

1. The officer may not trespass to obtain evidence or contraband 2.The officer may be on a public street, sidewalk, parking lot, legally in a home or building, etc. 3. It must be immediately apparent to the officer that the object is contraband or evidence of a crime. 4. The officer may not physically handle or touch the item to determine whether it is contraband. 5. An officer may seize an "innocent item"(such as a balloon filled with heroin) if he determines, based on his knowledge, training, or experience, that the object is contraband. 6. Mere suspicion that an object might be stolen because it looks out of place 7. Can use a visual aid like a flashlight, crane his neck, bend over, etc., to get a better view of the object, as long as he does not touch it.

Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case - CCP 17.152 In determining whether to deny release on bail under this article, the judge or magistrate may consider

1. The order or condition of bond 2. The nature and circumstances of the alleged offense 3. The relationship between the accused and the victim, including the history of that relationship 4. Any criminal history of the accused 5. Any other facts or circumstances relevant to a determination of whether the accused poses an imminent threat of future family violence

Crime Victims' Rights - CCP 56.02 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

PC 38.01 Custody

1. 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 2. 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

Days Allowed for Warrant to Run - CCP 18.07 Exclusive of the day of issuance

1. Warrant to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples = 15 whole days 2. Warrant issued under Article 18.21, Pen Registers and Trap & Trace Devices,... = 10 whole days 3. Warrant for other purposes = 3 whole days

Detentions Factors

1. Whether "special circumstances" (such as an uncooperative suspect or risk of violence) are present to justify the "intrusive means of effecting a stop" 2. Whether the officers are outnumbered. 3. Keep in mind, removing some of the above listed factors can convert what appeared to be an arrest back into merely a detention or even a consensual encounter. Example: Putting the firearms away, removing the handcuffs, telling the subject that she was not under arrest, and then letting her return to her apartment unaccompanied.

An investigative detention is a temporary seizure of a suspect for the purpose of determining

1. Whether there is probable cause to arrest him 2. Whether further investigation is necessary, or 3. Whether the officer's suspicions were unfounded

Days Allowed for Warrant to Run - CCP 18.07 Warrant issued under Article 18.21, Pen Registers and Trap & Trace Devices,

10 whole days

Arrest for Out Of County offense - CCP 15.18 Before the ____ business day after the date a magistrate accepts a written plea of guilty or nolo contendere in a case

11th The magistrate shall, if without jurisdiction, transmit to the court having jurisdiction of the offense: The written plea; 1. Any orders entered in the case 2. Any fine or costs collected in the case

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 and take charge of the arrested person before the _____ 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

11th 1. Release the arrested person on personal bond without sureties or other security 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.

Grounds for Issuance - CCP 18.02 A search warrant may be issued to search for and seize

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 14. A cellular telephone or other wireless communications device

Arrest for Out Of County Offense - CCP 15.18 Without unnecessary delay but not later than _____ 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

24

Magistrate's Order for Emergency Protection- CCP 17.292 If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within __ hours, the victim that the order has been issued by calling the victim's residence and place of employment

24 The clerk of the court shall send a copy of the order to the victim at the victim's last known address as soon as possible but not later than the next business day after the date the order is issued

Sealing of Affidavit - CCP 18.011 An order sealing an affidavit under this section expires on the __ day after the date on which the search warrant for which the affidavit was presented is executed

31st After an original order sealing an affidavit is issued under this article, an attorney representing the state in the prosecution of felonies may request, and a judge may grant, before the 31st day after the date on which the search warrant for which the affidavit was presented is executed, on a new finding of compelling state interest, one 30-day extension of the original order.

Magistrate's Order for Emergency Protection- CCP 17.292 Not later than the _____business day after the date of receipt of the copy of the order by the applicable law enforcement agency

3rd To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued

Further Detention of Certain Persons - CCP 17.291 The head of the agency arresting or holding such a person may hold the person for a period of not more than ___ hours after bond has been posted

4 Does not apply if the person is arrested for family violence and there is probable cause to believe the violence will continue if the person is immediately released

Duties of Arresting Officer and Magistrate - CCP 15.17 Person making arrest must, without unnecessary delay (within____ hours of arrest), take the arrested person before the appropriate magistrate.

48 1. Arrested person may be taken before the magistrate in person or by closed circuit television 2. Inform the arrested person of the charges.

Fingerprints Court has rejected arrested person's argument that seizure of fingerprints violates the ____ Amendment's protection against self-incrimination

5th Must have probable cause

Peace officers must respect the citizen's right against self-incrimination as protected by the U.S. Constitution's _______ Amendment

5th Purpose - to inhibit the government from compelling a confession through force, coercion, or deception

Magistrate's Order for Emergency Protection- CCP 17.292 An order for emergency protection issued for serious bodily injury remains in effect up to the _____ day

61st But not less than 31 days after the date of issuance

Grounds for Issuance - CCP 18.02 A search warrant may be issued to search for and seize

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

Notice of Arrest - CCP 15.19 The magistrate serves for a period of not more than ___ hours after the arrest before being transferred to the county jail of the county in which the arrest occurred.

72 If the 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

Magistrate's Order for Emergency Protection- CCP 17.292 An order for emergency protection issued for using or exhibiting deadly weapon remains in effect up to the _____ day

91st But not less than 61 days after the date of issuance.

Mere Suspicion

A hunch or the feeling of intuition. Mere suspicion is insufficient proof of any fact in a court of law.

CCP 14.051 Arrest by Peace Officer from Other Jurisdiction

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

CCP 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

Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case - CCP 17.152

A person who commits an offense under Section 25.07, Penal Code, other than an offense related to a violation of a condition of bond set in a family violence case, may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate determines by a preponderance of the evidence that the person committed the offense.

General Rules of Detentions

A police officer has the right to stop and temporarily detain someone for investigation whenever the officer has a "reasonable suspicion" some criminal activity is afoot and that the person was, is, or about to be involved in that criminal activity

Warrants for Fire, Health, and Code Inspections - CCP 18.05

A search warrant may be issued to a fire marshal, health officer, or code enforcement official of the state or of any county, city, or other political subdivision for the purpose of allowing the inspection of any specified premises to determine the presence of a fire or health hazard or unsafe building condition or a violation of any fire, health, or building regulation, statute, or ordinance.

Warrants for Fire, Health, and Code Inspections - CCP 18.05

A search warrant may not be issued under this article except upon the presentation of evidence of probable cause to believe that a fire or health hazard or violation or unsafe building condition is present in the premises sought to be inspected

Mistakes __________ (typographical errors) in warrant may be corrected by issuing magistrate or officer only in magistrate's presence

Mistakes Minor errors will not invalidate a warrant if the meaning is clear.

Search Warrant - CCP 18.01 The magistrate may _______ a search warrant that is submitted. If the magistrate ________ the warrant, the magistrate must

Modify 1. Transmit the modified version to the applicant by reliable electronic means; or 2. File the modified original and direct the applicant to modify the proposed duplicate original accordingly.

California v. Carney, 105 S CT 2066 (1985) The Court ruled that a _____ _____ that is mobile and drivable should be treated as an automobile for search purposes.

Motor Home A motor home that is immobilized or hooked up to utilities would be treated as a house, making the vehicle/mobile exception inapplicable.

Search Warrant - CCP 18.01 A search warrant may not be issued for property or items for search for and seize property or items that are located in an office of a __________, news magazine, television station, or radio station

Newspaper Better off to subpoena and collect evidence then

Accused Liberated - CCP 17.29 An attempt by an agency to give _______ to the victim or the person designated by the victim at the victim's or person's last known telephone number or address

Notice Constitutes a reasonable attempt to give notice. If possible, the arresting officer shall collect the address and telephone number of the victim at the time the arrest is made and shall communicate that information to the agency holding the person

Execution of Warrants - CCP 18.06 Officer has a duty, upon going to a placed ordered to be searched or before seizing any property ordered in the search, to give _______ of his purpose to the person who has charge of or who has possession of the property described in the warrant.

Notice The failure to give notice does not make the search illegal; nor do officers have to give notice in exigent circumstances or if reasonably believe evidence is being destroyed.

Power of Officer Executing Warrant - CCP 18.08

Officer executing search warrant may call to his aid any number of citizens in his county, who shall be bound to aid in the execution of the same.

Forced Entry Payne v. US, 508 F 2d 1391 (5th Cir. 1975).

Officers may make forced entry and property may be damaged during a search only if it was reasonable to do so. General Rule - officers may break and enter to execute a search warrant only when such entry is the only means by which the warrant can be effectively executed.

Dyar v. State, 125 SW 3d 460

Officers must articulate specifics facts and circumstances to justify an arrest regarding suspicious places and circumstances

Execution of Warrants - CCP 18.06 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

Peace officer In most cases, a search warrant must be executed within three days from the time of its issuance

Release on Bond of Certain Persons Arrested Without a Warrant- CCP 17.033 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

Bail in Felony - CCP 17.21 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 -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.

Code of Criminal Procedure Art. 14.03 Any peace officer may arrest, without warrant if

Persons who the peace officer has probable cause to believe have committed an offense (Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Stalking, or Trafficking Case), if the offense is not committed in the presence of the peace officer

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

Persons who the peace officer has probable cause to believe have committed an offense involving family violence

Code of Criminal Procedure Art. 14.03 Any peace officer may arrest, without warrant if

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 if the offense is not committed in the presence of the peace officer.

Issuance of Search Warrant to Photograph Injured Child - CCP 18.021 To search for and __________ a child who is alleged to be the victim of the offenses of

Photograph 1. Injury to a child 2. Sexual assault of a child 4. Aggravated sexual assault of a child 5. Continuous sexual abuse of young child

Issuance of Search Warrant to Photograph Injured Child - CCP 18.021 The officer executing the warrant may be accompanied by a __________ who is employed by a law enforcement agency and who acts under the direction of the officer executing the warrant

Photographer The photographer is entitled to access to the child in the same manner as the officer executing the warrant.

Incident to Lawful Arrest - Traffic Stops An officer may always seize items in _____ _____ or justify other exceptions to search warrant based on what develops during the stop

Plain view -Officers may order a driver and passengers out of the vehicle. -A normal traffic stop does not ordinarily justify a search of the vehicle involved

A _______ _______is not a search and thus does not implicate the Fourth Amendment

Plain view Not considered a search because if a person has an object in open view there is little or no expectation of privacy in that object.

Incident to Lawful Arrest - Pretext Arrest The traffic stop is conducted as a ________ to question the suspect about an unrelated offense

Pretext Where either the driver did not commit a traffic violation, or the officer had an ulterior motive for wanting to arrest the driver rather than simply giving him a citation

Public Place / Open Field There is no expectation of ________ in an item located in a place that can be clearly seen or left where it could be easily seized by anyone

Privacy Not a search; If an object is in view of the general public, appears to be abandoned, or in a public place, there generally is no warrant requirement.

A search of a vehicle under the vehicle/mobile exception requires _______ _______; compared to the search of a vehicle under the incident to arrest exception that requires only a valid arrest

Probable Cause While the suspect's behavior may give probable cause for a vehicle search, the behavior is not considered sufficient if it's based on mere furtive gestures.

Requirement found in the Fourth Amendment that must usually be met before the police make an arrest, conduct a search, or receive a warrant

Probable cause

Under exigent circumstances, ________ ________ can also justify a warrantless search or seizure

Probable cause

Warrants for Fire, Health, and Code Inspections - CCP 18.05 In determining ______ ______, the magistrate is not limited to evidence of specific knowledge, but may consider any of the following

Probable cause 1. The age and general condition of the premises; Previous violations or hazards found present in the premises 2. The type of premises 3. The purposes for which the premises are used; 4. The presence of hazards or violations in and the general condition of premises near the premises sought to be inspected.

Warrant of Arrest

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 CCP-15.01.

Based upon a valid arrest The officer must have _______ ______ to arrest the suspect

Probable cause If the arrest is found to be illegal, seized evidence is not admissible in court

Wyoming v. Houghton, 119 S Ct 1297 (1999) Once _______ ______ exists to support a search of a vehicle, the vehicle exception allows officers to search every part of the vehicle and its containers that may conceal the object of the search.

Probable cause If the focus is on a particular container in the vehicle, officers may search the container if probable cause exist.

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.

Execution of Warrants - CCP 18.06 Warrant should be executed by a peace officer in the _____ in which it is issued.

County -A city police officer can execute a search warrant in an area outside the city limits, but within the same county as the city -Dallas police officers may execute a search warrant in any of these five counties: Dallas, Denton, Collin, Kaufman, and Rockwall since the City of Dallas falls within the counties.

How Warrant is Executed - CCP 15.16 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.

Public Place / Open Field Open field exception is not applicable to the _____of a person's house

Curtilage The area immediately surrounding and adjacent to the home that warrants all privacy expectations attached to the home.

Search Warrant - CCP 18.01 An applicant for a search warrant who submits information as authorized must prepare a proposed ________ original of the warrant and must read or otherwise transmit its contents verbatim to the magistrate

Duplicate A magistrate must enter into an original search warrant the contents of a proposed duplicate original that are read to the magistrate. If the applicant transmits the contents by reliable electronic means, the transmission received by the magistrate may serve as the original search warrant.

Magistrate May Issue Warrant or Summons - CCP 15.03 _________ ________ ________ means a two-way electronic communication of image and sound between a person and magistrate and includes secure Internet videoconferencing.

Electronic broadcast system

Search Warrant - CCP 18.01 __________ obtained pursuant to a search warrant for which information was provided

Evidence Is NOT subject to suppression on the ground that issuing the warrant in compliance was unreasonable under the circumstances, absent a finding of bad faith.

Forced Entry Forced entry can be made if ______ __________ preclude giving notice or if entry has been explicitly or implicitly denied

Exigent circumstances Forced entry can be made to make a felony arrest if the officer is refused admittance after giving notice of his authority and purpose.

Search Warrant - CCP 18.01 A search warrant may not be issued for _______ __ _____, 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 unless the sworn affidavit sets forth sufficient facts to establish probable cause

Property or items 1. That a specific offense has been committed, 2. That the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, 3. That the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

Trujillo v. State, 952 SW 2d 879 CURRENT LAW

Provides that officers may open closed containers, as long as it's done in accordance with standard procedures, and no showing that officers acted in bad faith or as a pretext for an investigative search.

Authority to Arrest Must Be Made Known - CCP 15.26 The arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is _______ _________

Public information A person may request the clerk to provide copies of the warrant and affidavit on payment of the cost of providing the copies

What Force May Be Used - CCP 15.24 In making an arrest, all _________ means are permitted to be used to effect it

Reasonable No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the accused

In consensually talking to a non-detained person, an officer's ______ ______ may be aroused through inconsistent responses, allowing for additional questioning, a patdown, and an eventual arrest

Reasonable suspicion

Search Warrant - CCP 18.01 A magistrate who issues a search warrant for which information is provided by telephone or ________ ________ means must:

Reliable electronic 1. Sign the original documents 2. Enter the date and time of issuance on the warrant 3. Transmit the warrant by reliable electronic means to the applicant or direct the applicant to sign the judge's name and enter the date and time on the duplicate original.

How Return Made - CCP 18.10 A ______should be made for all search warrants, including those with no seizures.

Return 1. Failure to return a warrant will not render the warrant defective. 2. Failure to list all items seized will not make those items inadmissible at trial unless the defendant makes a showing of harm from unfair surprise. 3. The return of a search warrant must not be later than three whole days after executing the search warrant.

Muehler v. Mena, 544 US 93 (2005)

Ruling: In the 9-0 decision, the Court held that Mena's detention did not violate the 4th Amendment. Court reasoned that officers with a search warrant for contraband had the authority to detain occupants of the premises during the search, in order to minimize any risk to officers

Arizona v. Gant, 556 US 332 (2009) Officer may search the vehicle for ________ interests and the passenger compartment of vehicle, including containers

Safety -Not include locked containers -Not the locked glove box -Not the trunk

Issuance of Search Warrant to Photograph Injured Child - CCP 18.021 A search warrant under this section shall be executed by a peace officer of the ____ ___ as the alleged victim or, if the officer is not of the ____ ___ as the alleged victim, the peace officer must be assisted by a person of the ____ ___ as the alleged victim.

Same sex The person assisting an officer must be acting under the direction of the officer and must be with the alleged victim during the taking of the photographs.

Magistrate's Order for Emergency Protection- CCP 17.292 If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or _________

School The magistrate shall send a copy of the order to the child care facility or school.

Consent from a Minor The court will evaluate the _______ ___ ________ given to the minor by the parents in determining the validity of the search of a home based on the minor's consent.

Scope of authority -The court will closely scrutinize the minor's age, maturity level, emotional state, officer's display of authority, etc. -The court is more willing to approve a child giving police simple entry into the home if that child could allow other visitors to enter the entryway of the home.

Stewart v. State, 611 SW 2d 434 Once a person is arrested and in custody, an officer may _________ items carried on the person without a search warrant

Search Purse or wallet as well

Search Warrant - CCP 18.01 A _______ _______ may not be issued for ISSUANCE OF SEARCH WARRANT TO PHOTOGRAPH INJURED CHILD unless the sworn affidavit required of this article sets forth sufficient facts to establish probable cause:

Search warrant 1. That a specific offense has been committed; 2. That a specifically described person has been a victim of the offense; 3. That evidence of the offense or evidence that a particular person committed the offense can be detected by photographic means 4. That the person to be searched for and photographed is located at the particular place to be searched.

Supporting Affidavit Place to be searched

Should be described with sufficient particularity to apprise the officer where to conduct the search and to distinguish it from other places in the community (i.e., street address, apartment/building/unit number, physical description). Person in control of premises - should name and describe the person in control of place to be searched.

Testing for Communicable Diseases Following Certain Arrests - CCP 18.22 Testing under this article shall be conducted in accordance with written infectious disease control protocols adopted by the Department of _____ ______ _________

State Health Services That clearly establish procedural guidelines that provide criteria for testing and that respect the rights of the arrested person and the peace officer, magistrate, or correctional facility employe

The probable cause affidavit is a _______________________ of the arrest. It is written by the arresting officer and given to a judge to review after the suspect is brought to the jail

Summary of the evidence and circumstances Required when an officer makes a "warrantless arrest" - which is when the officer arrests someone without getting permission from a judge first

Magistrate May Issue Warrant or Summons - CCP 15.03 A ____________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

Summons

Arrest for Out Of County Offense - CCP 15.18 The magistrate shall ______ ______ if allowed by law, and, if without jurisdiction, immediately transmit the bond taken to the court having jurisdiction of the offense

Take bail 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 indigence, or, on satisfaction of the judgment, discharge the defendant, as the case may indicate.

Search Warrant - CCP 18.01 A magistrate may consider information communicated by ________ or other reliable electronic means in determining whether to issue a search warrant.

Telephone The magistrate may examine an applicant for a search warrant and any person on whose testimony the application is based. The applicant or other person must be placed under oath before the examination

Stop and Frisk _______ v. _______, 392 U.S. 1 (1968)

Terry v. Ohio -The temporary seizure of a person for investigation based on an officer's reasonable suspicion of criminal activity. 1. Based on reasonable person or reasonable officer standard 2. More than a hunch or mere suspicion 3. Less than probable cause -An anonymous tip can provide reasonable suspicion if police corroborate an informant's predictive information regarding the suspect. Have to show that the anonymous informant is a credible, reliable source.

Investigatory Stops/Detentions

Terry v. Ohio, 392 U.S. 1 (1968) The temporary seizure of a person for investigation based on an officer's reasonable suspicion of criminal activity. Detentions are sometimes referred to in the case law as simply an "investigative stop," or "Terry stop" particularly by the federal courts

Incident to Lawful Arrest- Pretext Arrest

Texas courts look at the stop objectively- as long as the officer made a valid stop and valid arrest, then any evidence seized pursuant to the stop and arrest may be admissible in court

Requisites of Complaint - CCP 15.05

The complaint shall be sufficient, without regard to form, if it has these substantial requisite 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.

What was the result of Terry v. Ohio 392 U.S. 1 (1969)?

The court affirmed a judgment that affirmed petitioner's conviction for carrying a concealed weapon because the "stop and frisk" tactics used by the police in the search of petitioner's person and the seizure of the weapon produced from the search were reasonable under the Fourth Amendment.

Consent authority A _______ _______ may not give police access to an area or object that he does not have access to.

Third party Even though a 3rd party may have access to an area, the 3rd party still may not have access to certain objects within the area/room that are under the other person's exclusive control.

The court will examine the "________ __ ___ __________" surrounding the seizure or detention to determine if there is sufficient facts and circumstances present to satisfy the Fourth Amendment

Totality of the circumstances

Atwater v. City of Lago Vista, 532 US 318 (2001) An officer may arrest for ________ ________, where a person refuses to sign a citation (except for open container and speeding)

Traffic violations

Arrest

U.S. v. Mendenhall, 446 U.S. 544 (1980). Take person(s) into custody for purposes of charging them with a crime based on an officer's establishment of probable cause.

Reasonable Suspicion

U.S. v. Sokolow, 490 U.S. 1, 7 (1989) More than a hunch but less than proof of wrongdoing by a preponderance of the evidence. The act of imagining - or of doubt - the apprehension of something without proof, or on slight evidence.

Sealing of Affidavit - CCP 18.011 On the expiration of an order issued and any extension, the affidavit must be ___________

Unsealed

Abandoned Property Abandoned property also includes the _______ of a suspect who leaves the ________when pursued by police.

Vehicle -Officers, therefore, may search the entire vehicle and any objects contained in the vehicle. Restriction - If the object was abandoned because of officer misconduct, the abandoned property principle is inapplicable.

Authority to Arrest Must Be Made Known - CCP 15.26 The officer does not need to have the ________ in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible.

Warrant -In executing a warrant of arrest, it shall always be made known to the accused under what authority the arrest is made. -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.

Warrant Extends to Every Part of the State - CCP 15.06 A _______ __ ________, issued by any county or district clerk, or by any magistrate (except mayors of an incorporated city or town)

Warrant of arrest 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.

Hot Pursuit Officers may, make a _______ entry of a home under hot pursuit, a well recognized justification, to search for and arrest a suspect.

Warrantless An officer is allowed warrantless entry in the course of pursuing a suspect

Consent from a Minor However, a minor who is driving a car owned by a parent can legally give consent to a _______ _______ of the vehicle.

Warrantless search -The recommendation is that officers do not base the search of parents' home on the minor's consent. -The court is more willing to approve a child giving police simple entry into the home if that child could allow other visitors to enter the entryway of the home.

CCP 14.04 When Felony Has Been Committed

Where it is shown by satisfactory proof to a peace officer, upon the representation of 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

Execution of Warrants - CCP 18.06 Before the officer takes property from the place, he shall prepare a ______ _______ of property to be taken

Written inventory Must be legibly endorsed with the officer's name on inventory and present a copy of inventory to the owner or person in possession of the property

Search Warrant - CCP 18.01 Is a _____ _______, issued by a magistrate and directed to a peace officer

Written order 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

Officers may search person on the premise ______ v. ________, 100 S Ct 338 (1979) Three situations in which officers may search person(s) on the premises during execution of search warrant

Ybarra v. Illinois 1. Search person named in the warrant who is to be arrested pursuant to the warrant. 2. Search any person mentioned in the search warrant, whether named or described, if the affidavit for search warrant details probable cause to show that person(s) will be in possession of contraband, weapons, or other property that may be seized lawfully, at the time of the search. 3. Can always make a weapons search of a person(s) on the premises at time a search warrant is executed, if Terry v. Ohio is applicable.

Warrant Issued by Other Magistrate - CCP 15.07 When a warrant of arrest is issued by any_______ of an incorporated city or town. It cannot be executed in another county than the one in which it issues, except:

Mayor 1. It be endorsed by a judge of a court of record, in which case it may be executed anywhere in the State; 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 3. 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

Reasonable Belief

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

May Break Door - CCP 15.25 In case of a ________, the officer may break down the door of any house for the purpose of making an arrest

Felony If he be refused admittance after giving notice of his authority and purpose

Consensual (Voluntary) Encounters

Florida v. Royer, 460 U.S. 491 (1983) 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) Law enforcement officers do not violate the ________ ________ by merely approaching an individual on the street or in another public place. The person contacted is free to leave and need not respond to an officer's inquiries

Fourth Amendment

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 Kentucky v. King, 563 US 452 (2011)

Scope of Frisk (pat-down) The officer may also "_________" the immediate area around the suspect for weapons. Officers can conduct a "________" of a vehicle's passenger compartment - limited to areas in which a weapon may reasonably be hidden within reach of the suspect.

Frisk -Not the trunk -Not the locked glove box -Not locked containers in the passenger compartment

Magistrate's Order for Emergency Protection- CCP 17.292 In addition to the conditions, the magistrate in the order for emergency protection may impose a condition ordering a defendant's participation in a ____ system or allowing participation in the system by an alleged victim or other person protected under the order

GPS The victim of the offense need not be present when the order for emergency protection is issued.

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

Grounds for Issuance - CCP 18.02 A search warrant may be issued to search for and seize

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

Grounds for Issuance - CCP 18.02 A search warrant may be issued to search for and seize

Release on Bond of Certain Persons Arrested Without a Warrant- CCP 17.033 The time limits imposed do not apply to a person arrested without a warrant who is taken to a hospital, clinic, or other ________ _________ before being taken before a magistrate

Medical facility Time limits imposed begin to run at the time, as documented in the records that a physician or other medical professional releases the person

Although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well, _______ ________ is insufficient proof of any fact in a court of law.

Mere suspicion

Little or no evidence of a crime. An officer may NOT take any forcible action against a person or stop or detain a person on the basis of _____ ______

Mere suspicion

United States v. Mendenhall 446 U.S. 544 (1980)

Held: The judgment is reversed and the case is remanded. Conclusion: The Supreme Court ruled that the respondent's 4th Amendment rights were not violated when she went with agents from the concourse to the DEA office. Her consent was valid and the heroin was admissible in court

Probable Cause

Henry v. U.S., 361 U.S. 98 (1959) Exists if the facts and circumstances known to the officer would warrant a prudent man in believing that the offense has been committed. Probable cause must always exist for a search or arrest to be valid, whether or not a warrant is used.

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 would evaporate, and the people would be secure in their persons, houses, papers, and effects only in the discretion of the police.

Search Warrant May Authorize Arrest - CCP 18.03 Steagald v. US, 101 S.Ct 1642 (1982) Hudson v. State, 662 SW 2d 957 (Tex. Crim. App 1984)

If the suspect is not found in his own residence or in a public place but is found or known to be in the residence of someone else, a search warrant is required in order to effect the arrest

Arrest for Out Of County Offense - CCP 15.18 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.

Crime Victims' Rights - CCP 56.02 The right to be _________, 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

Informed Including general procedures in guilty plea negotiations and arrangements, restitution, and the appeals and parole process

Conditions for an arrest

Intent Authority Actual seizure Understanding

Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case - CCP 17.152 A person who commits an offense under Section 25.07(a)(3), Penal Code, may be held without bail, that the person went to or near the place described in the order or condition of bond with the ______ __ ______ to commit

Intent or threatens 1. Family violence 2. An act in furtherance of an offense under Stalking

Incident to Lawful Arrest - Traffic Stops A Custodial arrest for a traffic violation when the car is impounded may justify an __________ __________

Inventory search If approaching the car, officer develops probable cause to believe the driver has committed another offense or vehicle contains contraband, it may justify the mobile premises or automobile exception.

Detention

Is a brief stop of a person as part of an investigation for the purpose of making a limited inquiry into possible criminal activity. Such stops require reasonable suspicion. Service officers must use the most reasonable degree of force that is necessary to complete the stop

CCP 11.22 Restraint

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

Third Party Authority Third parties that can give effective consent for areas under _____ _____ and use in the following relationships:

Joint control -Spouses -Employers/Employee -Parents

Sealing of Affidavit - CCP 18.011 The ________ may order the affidavit sealed if the attorney establishes a compelling state interest in that

Judge 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.

Search Warrant - CCP 18.01 Only a ________ of a municipal court of record or a county court who is an attorney licensed by the State of Texas

Judge Judges of statutory county, district court, Court of Criminal Appeals, presiding judge, Supreme Court of Texas, chief justice, magistrate with jurisdiction over criminal cases serving a district court may issue warrants for 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

Exclusionary Rule

Law that prohibits the use of illegally obtained evidence in a criminal trial

A _______ impounded vehicle may be searched for the purpose of determining its condition and contents at the time of impounding, to avoid later disputes or false claims

Lawfully Anything observed in the vehicle during the inventory search will be admissible in court.

Accused Liberated - CCP 17.29 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

Administrative Regulatory Search May use this exception to search a _________ _________ as part of a regulatory scheme for inspection purposes

Licensed business Ex. Tavern with TABC license; pawnshop; construction worksite under OSHA regulations; gun dealer

In "knock and announce" officers have to knock on door, but does not specify how _______ "knock and announcement" has to be, nor how long need to wait for a response.

Loud Therefore, the difference can be as short as a few seconds.

Issuance of Search Warrant to Photograph Injured Child - CCP 18.021 After having located and photographed the child, the peace officer executing the warrant shall take possession of the exposed film and deliver it to the ________

Magistrate The child may not be removed from the premises on which he or she is located

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.

Search Warrant - CCP 18.01 Any _________ who is an attorney licensed by this state may issue a search warrant for property or items to collect a blood specimen from a person who:

Magistrate 1. Is arrested for an offense under Intoxication and Alcoholic Beverages AND 2. Refuses to submit to a breath or blood alcohol test.

Custodial Statements

Maryland v. Shatzer, 130 U.S.. 1213 (2010) Once persons in custody indicate their right to remain silent, interrogations must cease. If the persons in custody request an attorney, the interrogations must cease until an attorney is present or, alternatively, until there is at least a fourteen-day break in Miranda custody

Officer Safety Justifications

Maryland v. Wilson (1997) 519 U.S. 408 The U.S. Supreme Court has ruled that for officer safety purposes, passengers in a lawfully stopped vehicle may be ordered to exit the vehicle. Passengers, by virtual of merely being present in a lawfully stopped vehicle, are detained. If anything, the need to protect the safety of the officers is even greater when he must deal with more than just a lone driver

Disadvantage of "Knock and Announce"

Could give time for occupants to reach for weapons or destroy evidence.

Scope of Search

-The general rule is that a vehicle may be searched in all general areas, such as console, trunk, glove box, etc. -These areas may be searched whether they are locked or unlocked; however, officers cannot pry open or cause any damage to the car to gain access to any area.

Blood Texas law generally allows blood to be seized

1. With an evidentiary search warrant 2. Consent 3. Person is unconscious

Supporting Affidavit It must also be sworn to and signed by the _______

Affiant

Payton v. New York, 100 U.S. 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

Understanding

By the person to be arrested of the officer's intention to arrest.

If accused _______ __ ______, the judge shall issue a warrant

Failure to appear

Magistrate's Order for Emergency Protection- CCP 17.292 An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters

"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN A SEPARATE OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A VIOLATION OF THIS ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT. "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."

Release on Bond of Certain Persons Arrested Without a Warrant- CCP 17.033 A person who is arrested for a felony without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $_______

$10,000 Not later than the 48th hour after the person's arrest and a magistrate has not determined whether probable cause exists to believe that the person committed the offense

Release on Bond of Certain Persons Arrested Without a Warrant- CCP 17.033 A person who is arrested for a misdemeanor 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 and a magistrate has not determined whether probable cause exists to believe that the person committed the offense

Consent scope

-A person may limit his consent. -A person may terminate consent after it is given. -The person must give consent to the search. -No formal language required

Third Parties that have Limited or No Right to Give Consent in the Following Situations:

-Child consenting to search parents home -Landlords/Tenants -Hotel employee -Roommates -Overnight guests -Neighbors -Babysitters

Plain Touch

-Exception is loosely patterned after plain view but is extremely limited. -Applicable only during protective frisk/pat-down -Must stay within the bounds of a Terry frisk. -Therefore, once the officer determines that an object is not a weapon, the officer may not continue to use or plain touch to manipulate the object. -Must be immediately apparent that the object is contraband. -No extra squeezes or manipulation of the object.

The search incident to arrest of a person may include

-His person -In unusual circumstances(tread carefully)- body cavities -His effects -The immediate area around the person

Search Warrant May Authorize Arrest - CCP 18.03

-If the facts presented to the magistrate 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. -Authority to arrest under this warrant is not limited to the premises described in the search warrant; except when the suspect is found or known to be within the residence of a third party

CCP 15.17 Duties of Arresting Officer & Magistrate

-Inform person of rights: 1. To retain counsel 2. To remain silent 3. To attorney during questioning 4. To terminate questioning 5. To examining trial (felony) 6. To request appointment of counsel (if indigent) 7. Procedures for requesting appointment of counsel 8. Not required to make statement and any statement will be used against him 9. To reasonable time and opportunity to consult with counsel 10. To bail, if allowed by law

"Knock and Announce" entry

-It is designed to let occupants know its police that want to enter premise. -They knock and announce presence and wait a reasonable amount of time. -Both parties less at risk if door is opened peacefully.

Other Evidence

-May make warrantless seizure of handwriting or voice sample when required for form rather than for content because they are identifying physical characteristics that are constantly in public -May photograph exterior of the suspect's vehicle -May lift fingerprints from the exterior of the vehicle with probable cause

Accused Liberated - CCP 17.29 Before releasing a person arrested for stalking or for _____ _________

Family violence Law enforcement agency holding such person must make a reasonable attempt to give personal notice of the imminent release to the victim of the alleged offense or to another person designated by the victim to receive the notice.

Abandoned Property Not considered a search because there is no expectation of privacy in property that has been _________

Abandoned -Need objective factors such as that run-down house has no furniture, spider webs, no working utilities, windows are broken, etc. -Abandoned property includes garbage bags placed out for collection, dropped matchbox containing drugs, paper bag thrown down by fleeing suspects, etc.

Consensual Encounters

Absent a sufficient reasonable suspicion justifying a lawful detention, a person under such circumstances may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.

Search Warrant - CCP 18.01 A sworn ________ setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.

Affidavit No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance

Florida v. Riley, 488 US 445 (1989) There is no expectation of privacy in navigable ___ _____

Air space Case law is clear that officers may conduct aerial surveillance of private property and take aerial photographs

PC 2.01 Proof Beyond a Reasonable Doubt

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. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

Proof Beyond Reasonable Doubt

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. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. PC 2.01

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.

When a Person is Arrested - CCP 15.22 A person is __________ when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant or without a warrant.

Arrested

Notification to Schools Required - CCP 15.27 A law enforcement agency shall attempt to ________ whether the person is so enrolled

Ascertain If 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,

Notice of Arrest - CCP 15.19 If the arrested person fails or refuses to give_________ , the arrested person shall be committed to the jail of the county where the person was arrested.

Bail Immediately provide notice to the sheriff of the county in which the offense is alleged to have been committed

Arrest for Out Of County Offense - CCP 15.18 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.

Testing for Communicable Diseases Following Certain Arrests CCP 18.22 A person who is arrested causes an emergency response employee or volunteer, to come into contact with the person's ______ ________

Bodily fluids Shall, at the direction of the court having jurisdiction over the arrested person, undergo a medical procedure or test designed to show or help show whether the person has a communicable disease.

Probable Cause to Arrest

Brinegar v United States, 338 U.S. 160 (1949) Probable cause test - 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 suspect has committed, is committing, or is about to commit a crime.

Magistrate's Order for Emergency Protection- CCP 17.292 As soon as possible but not later than the next _________ ___ after the date the magistrate issues an order for emergency protection under this article

Business day The magistrate shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides

Search Warrant - CCP 18.01 A search warrant may not be issued for _________unless the sworn affidavit required by electronic customer data held in electronic storage of this article sets forth sufficient facts to establish probable cause

Contraband That a specific felony offense has been committed and that the specifically described property or items that are to be searched for or seized are located at or on the particular person, place, or thing to be searched.

Arrest for Out Of County offense - CCP 15.18 This article does not apply to an arrest made pursuant to a _____ ___ _______ under Chapter 43 (Public Indecency) or Article 45.045

Capias pro fine

Probable Cause to Search

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 [sizeable property would be found in a particular place or on a particular person]

_____________ devices carried on a person is NOT permitted to search for the content of the phone.

Cellphones/data storage If officers had previous information that a closed container has contraband, then the recommendation is to get a search warrant.

Execution of Warrants - CCP 18.06 Officer executing warrant shall present a ____ of the warrant to the owner of the place, if present.

Copy If the owner is not present but the person in possession of place (i.e., renter) is present, the officer shall present a copy of the warrant to the person.

Duties of Arresting Officer and Magistrate - CCP 15.17 If accused, will only be punished with a ________ __ ___________, magistrate may release without bond and order to appear at a later date (if person is identified w/ certainty).

Class C Misdemeanor

Administrative Regulatory Search The courts have indicated that a warrant is not necessary in those cases where the place to be searched is________ _________

Commercial property "pervasively regulated" or "closely regulated" that warrantless inspections are necessary to ensure proper, or legal, business practices.

When must a search incident to arrest occur? Search must be________ to the arrest (Preston v. US, 376 US 364 (1964)

Concurrent Must occur during the process of making the arrest or within a reasonable time after arrest is completed.

Consent - Parent / Child Relationship A parent may give ________ to search the bedroom or living quarters of all resident children (minors and adults) if the parent has access to that area.

Consent However, if the parent does not normally have free access to a child's room, the parent cannot give valid consent to a search of the child's room.

Search Warrant - CCP 18.01 A search warrant for _________ may only be issued by

Contraband 1. Judge of a municipal court of record who is an attorney licensed by the state; 2. Judge of a county court who is an attorney licensed by the state 3. Judge of a statutory county court, district court, the court of criminal appeals, or the supreme court. In a county that doesn't have neither of these judges, any magistrate may issue a search warrant.

Days Allowed for Warrant to Run - CCP 18.07 Warrant issued for ____ __ _________ contained in or on a computer, disk drive, flash drive, cellular telephone, or other electronic, communication, or date storage device

Data or information 3 whole days if the device was seized before the expiration of the allowed time.

Magistrate's Order for Emergency Protection- CCP 17.292 At a ____________ appearance before a magistrate after arrest for an offense involving family violence, trafficking, assaults', disorderly conduct. The magistrate may issue an order for emergency protection on the magistrate's own motion or on the request of:

Defendants 1. The victim of the offense 2. The guardian of the victim 3. A peace officer 4. The attorney representing the state

Illinois v. McArthur, 531 US 326 (2001) Warrantless entry is allowed where probable cause exists that evidence/contraband is in danger of being _______ __ _________

Destroyed or removed Once the emergency is over, post a guard and obtain a search warrant if there is probable cause of more contraband or evidence at the location.

Blood Federal law allows its seizure without a search warrant if the officer reasonably believes that delay in taking the sample will threaten the _________ of the evidence.

Destruction Generally, this is taken incident to arrest & the blood is taken and tested in a reasonable manner.

A ___________is allowed so a peace officer may have a reasonable amount of time to investigate a person's possible involvement in an actual or perceived criminal act, allowing the officer to make an informed decision whether to arrest, or to release, the subject

Detention

In investigative ____________ must be temporary and last no longer than is necessary to effectuate the purpose of the stop

Detention

Obtaining personal identification information from a person and running a warrant check, so long as nothing is done which would have caused a reasonable person to feel that he was not free to leave, does not convert the contact into a _____________

Detention

Search and Detention of Occupants

Detention - Officers with a search warrant to search a premises have a limited right to detain all occupants while the search is conducted, including persons leaving as the police arrive. Search - Officers have a limited right to search occupants during the execution of search warrant.

Aguilar v. Texas, 378, US 108 (1964) Old Standard

Facts based on tip or hearsay from another 1. Set forth underlying facts and circumstances upon which the informant based his belief that a crime had been committed or thing to be seized is at the place he says it to be AND 2. Set forth underlying grounds that affiant bases his belief that informant is credible or information is reliable.

Illinois v. Gates, 103 S CT 2317 (1983) New Standard

Facts justifying probable cause - Totality of circumstances 1. Issuing magistrate needs to simply make a common-sense decision, based upon all information provided in the affidavit that probable cause exits that contraband or evidence of a crime will be found at the place to be searched. 2. Based on this standard, hearsay is now allowed to establish probable cause in an affidavit.

Stop and Frisk - Scope A detained person, however, commits an offense if he intentionally gives a _______ or ________ name, DOB, or address to a peace officer during valid detention

False; fictitious TX law does not require that a detained person provide his name, DOB, or address to an officer

Magistrate's Order for Emergency Protection- CCP 17.292 At a defendant's appearance before a magistrate after arrest for an offense involving _______ ________, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:

Family violence 1. Serious bodily injury to the victim 2. The use or exhibition of a deadly weapon during the commission of an assault.

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.

Arraignment

The process whereby the accused is warned of his constitutional rights, bond is set, his identity is established, and his plea is heard.

Magistrate May Issue Warrant or Summons - CCP 15.03

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.

CCP 11.21 Constructive custody

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

Search Warrant - CCP 18.01 Contraband

means property of any nature, including real, personal, tangible, or intangible