BPOC Chapter 10 LO 1-12 "Arrest, Search, and Seizure"

When to photograph children

(a) Except as provided by Chapter 63, Code of Criminal Procedure, a child may not be photographed or fingerprinted without the consent of the juvenile court unless the child is: (1) taken into custody; or (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.

How Return Made

-3 days after search warrant executed -Give inventory to magistrate -Give magistrate warrant with the manner in which it was executed -Retain possession until magistrate orders otherwise

Complaint

-Affidavit made before magistrate or district or county attorney if it charges the commission of an offense

Magistrate may consider for Warrants for Fire, Health, and Code Inspections

-Age and general conditions -Previous violations/hazards -Type of premises -Purpose of premise -Presence of hazards/violations

Seizure of circuit board of gambling device, equipment, or paraphernalia

-Only seize the gambling stuff -Carry circuit board before magistrate -Retain custody of circuit board

Arrest for out of county offense

-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 -Warrant of 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, or discharge the defendant (CCP 15.18)

Days allowed if warrant is for a normal search

3 whole days

Reasonable belief

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

Search warrant

A court order allowing law enforcement officers to search a suspect's home or business and take specific items as evidence

Mere Suspicion

A hunch or the feeling of intuition. Although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well, mere suspicion is insufficient proof of any fact in a court of law.

Notification to schools required

A law enforcement agency that arrests any person or refers a child to the Juvenile Probation Department for certain listed offenses must notify the child's school orally within 24 hours or on the next school day, and in writing within seven days after oral notice is given

Payton v. New York

A peace officer may not make a warrantless entry into a suspects home without exigent circumstances

When a felony has been committed

A peace officer may, without warrant, pursue and arrest the accused if -Accused is about to escape -No time to procure a warrant

Intent

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

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.

Preventing Consequences of Theft

ANY person has the right to seize any personal property that has been stolen, and bring with it the person suspected of committing the theft before the magistrate the Seizure must be made OPENLY and the proceedings be held Without Delay

Constructive Custody

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.

Arrest can be made when

Any time

Reasonable Suspicion

Based upon the totality of the circumstances and is less burden than Probable Cause

People incarcerated or under arrest may be subject to testing if

Bodily fluids come into contact with a LEO, CO, or magistrate

Understanding

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

Denial of Bail for violation of condition of bond where child alleged victim

Committed against child under 14 -Sexual offenses -Prohibited Sexual Conduct -Sexual Performance of a Child -Trafficking of Persons -Compelling Prostitution

The magistrate in the order for emergency protection may prohibit the arrested party from

Committing -Family violence or assault on the protected person -Trafficking of persons -Stalking Communicating -Directly to family/household/person of protected person -Threaten family/household/person of protected person -In any manner with family/household/person of the protected person (if magistrate feels its necessary) Going near -The residence, place of employment, or business of a member of the family or household or of the person protected under the orde -The residence, child care facility, or school where a child protected under the order resides or attends Possessing a firearm

Disadvantage of "knock and announce"

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

When can you break a door down

During a felony arrest warrant

Warrant extends to

Every part of the state

Brigham City, Utah v Smart

Exigent circumstances such as breaking up a violent fight permit warrantless entry into the dwelling without a warrant

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

Following a hearing a judge or magistrate determines by a preponderance of the evidence that the person violated a condition of bond related to: (1) the safety of the victim of the offense under Section or the family violence case, as applicable; or (2) the safety of the community.

Beck v Ohio

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

Further detention of certain persons

If there is probable cause to believe that violence will continue if the person is released- The agency may hold a person for 4 hours

However, little difference in how carried out

In knock and announce officers have to knock on door, but does not specify how loud knock and announcement is to be, nor how long need to wait for response. So difference of just a few seconds.

Arrested suspects

Is not a guilty sentence. Everyone is innocent until proven guilty

Arrest warrant issued by a mayor, may only be served within the county of issue unless

It is endorsed by a judge of a court of record or by any magistrate in which county the accused is found

Offense within view

LEO may arrest without warrant if offense is -Felony -Against public peace -Any offense within his view

Within view of magistrate

LEO may arrest without warrant when felony or breach of peace occurs in front of magistrate and magistrate verbally orders the arrest

Proved beyond a reasonable doubt

Needed for conviction in a criminal case

Disadvantage of "no knock" warrant

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

(Judge may put one 30-day extension) Sealing of Affidavit expires

On 31st day after search warrant was executed

What force may be used

Only reasonable force

Search warrant can call for arrest if

PC exists

Consensual Encounters (Florida v. Royer)

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.

Kentucky v King

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

Dyar v State

Peace officers must be able to articulate specific facts and circumstances to justify an arrest regarding "suspicious places" and "circumstances".

Probable Cause to Arrest (Brinegar v United States)

Probable cause exists where the facts and circumstances within the officer's knowledge, and of which they have reasonable trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

Probable Cause to Search (Carroll v United States)

Probable cause to search exists when "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that [seizable property would be found in a particular place or on a particular person]

Custody of Property Found

Property seized shall be kept as provided by the order of a magistrate

Arrests

Take persons into custody for purposes of charging them with a crime based on an officer's establishment of probable cause. (US v Mendenhall)

Release on personal bond if not timely demanded

The arrested person is taken before the 11th day after the date of the commitment to the jail, the magistrate shall: - release on personal bond - forward the bond to the sheriffs and the court issued the warrant

Bail in felony

The court shall fix an amount of bail, if it is a bailable case, and determine if the accused is eligible for a personal bond. The sheriff or other peace officer (not police of a city) or jailer is authorized to take bail bond

The probable cause test must show that

The facts and circumstances of the officer's knowledge are sufficient enough to warrant a reasonable person to believe a suspect has committed, is committing, or is about to commit a crime.

Who must you take defendant before

The magistrate (within 48 hours of arrest)

Authority

The peace officer's arrest must be made under real authority. This means the officer is authorized by law to make an arrest and the arrest is supported by probable cause.

Actual seizure

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

Bail

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

Bail in Misdemeanor

The sheriff or other peace officer or a jailer is authorized to take a bail bond

May take bail in felony

The sheriff or other peace officer, or a jailer who has the defendant in custody may take the defendant's bail bond in such amount as may have been fixed by the court or magistrate, or if no amount has been fixed, then in such amount as such officer may consider reasonable.

Investigatory Stops/Detentions (Terry v. Ohio)

The temporary seizure of a person for investigation based on an officer's reasonable suspicion of criminal activity

"Knock and announce" entry (aka they knock and announce presence and wait a reasonable amount of time. Both parties less at risk if door is opened peacefully.)

They knock and announce presence and wait a reasonable amount of time. Both parties less at risk if door is opened peacefully.

If you are in fresh pursuit of a suspect and they enter another jurisdiction

You may enter continue the pursuit into the other jurisdiction and arrest the suspect (felony only)

Can arrest anyone without warrant who stands charged

in the courts of a State with a crime punishable by death or imprisonment over a year

Warrant or complaint must be under seal

shall be certified to under the seal of a court of record or by a justice of the peace

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 -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.

Magistrate may issue an order for emergency protection in their own motion or on the request of

-Victim -Guardian of victim -LEO -Attorney representing the state

Officer shall seize

All property and person on warrant

Purpose of "no knock" warrant

Allows officers to enter the premises without warning to occupants...to protect officers from being shot if occupants are known to be armed or to prevent disposal of contraband.

LEO may release Public Intoxication suspect if

-LEO thinks detention is unnecessary for the protection of the suspect or others -Suspect released to an adult who will assume responsibility -Suspect verbally consents to the treatment of substance abuse -Suspect verbally consents to sober center

Search warrant to photograph a child

-Must be a victim of a sex crime -Must deliver photo to magistrate -LEO must be same sex as victim or have someone who is the same sex as the victim present

Probable Cause and Arrest without Warrant

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

Warrants for Fire, Health, and Code Inspections

-Can have warrant for presence of fire/health hazard, unsafe building condition, violation of any fire, health or building regulation -Must have PC evidence

What can a peace officer do with mere suspicion?

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

Diplomatic Immunity 22 USC 254

-Diplomats on missions to other countries in countries in the Geneva convention will have Diplomatic immunity (will edit)

Judge may order the sealing of an affidavit if

-Disclosure would jeopardize victim, witness, CI, or evidence -Information is from court ordered wire-tap

During the execution of a search warrant the LEO shall

-Execute warrant without delay -Return warrant to proper magistrate -Present warrant to owner of premises (or anyone there if owner isn't present) -Do an inventory -Give copy of inventory to owner/whoever is there -Leave copy of inventory and warrant at premises if no one is there

Notice of Arrest

-If arrested person fails/refuses to give bail, they will go to jail of county where arrested and magistrate will give notice to sheriff -No more than 72 hours in jail before transferred to county jail of county where arrest occurred

Magistrate may issue warrant or summons

-In any case in which he is by law authorized to order verbally the arrest of an offender -When any person shall make oath before the magistrate than another has committed some offense -In any case named in CCP where he is specially authorized to issue warrants of arrest

Necessary Conditions for Arrest

-Intent -Authority -Actual Seizure -Understanding

Requisites of a Warrant

-Issue in the name of "The State of Texas" -Specify the name of the person to be arrested if known, -State the offense -Must be signed by the magistrate and his office be named in the body of the warrant

Requisites of a Complaint

-It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him. -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. -It must state the time and place of the commission of the offense, as definitely as can be done by the affiant. -It must be signed by the affiant by writing his name or affixing his mark.

Restraint

-Kind of control which one person exercises over another -Subject him to general authority and power of person claiming such right

Issues surrounding custodial statements

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

Warrantless search

-Probable Cause and Exigent Circumstances -Brigham City, Utah v Smart -Kentucky v King

Two kinds of probably cause

-Probable Cause to Arrest -Probable Cause to Search

Exception

-Prosecutor is required to negate the existence of _____ when filing charges -Prosecutor must prove beyond a reasonable doubt that the defendants behavior does not meet ________

Release on Bond of Certain Persons Arrested Without Warrant (Felony)

-Released on bond not to exceed $10,000 -Released no later than 48 hours -Magistrate has not determined whether PC exists -If unable to pay must be released on personal bond -Magistrate can postpone release for 72 hours

Release on Bond of Certain Persons Arrested Without Warrant (Misdemeanor)

-Released on bond not to exceed $5,000 -Released no later than 24 hours -Magistrate has not determined whether PC exists -If unable to pay must be released on personal bond -Magistrate can postpone release for 72 hours

Officer may do what he needs to do to execute a lawful arrest without a warrant but he may not enter a residence for a lawful arrest unless

-Resident consents to entry -Exigent circumstances

Serach warrant must contain

-Runs in the name of "The State of Texas" -Describes what is being searched -Describes where the searching is taking place -Commands LEO to search -Dated and signed by magistrate -Magistrates name clearly written

The magistrate shall issue an order for emergency protection if the family violence arrest involves

-SBI to victim -Use or exhibition of a deadly weapon

Authority to arrest must be made known

-Shall always be made known to the accused under what authority the arrest is made -Upon request he shall show the warrant to the defendant as soon as possible -A person may request the clerk to provide copies of the warrant and affidavit on payment of the cost of providing the copies

Rules for Fixing Amount of Bail

-Shall be sufficiently high to give reasonable assurance that undertaking will be complied with -Not used to make it an instrument of oppression -Nature of offense and circumstances considered -Ability to make bail is to be regarded -Future safety of victim and community shall be considered

Duty of Sheriff Receiving Notice

-Shall forthwith go or send for the arrested person and have brought before proper court -Shall have the arrested person brought before magistrate before the *11th* day after committed to jail of county

How warrant is executed

-Shall without necessary unnecessary delay take the person before the magistrate who issued the warrant -The officer executing the arrest warrant may as permitted take the person arrested before the magistrate in a county other than county of arrest

Duties of arresting officer and magistrate

-Shall without unnecessary delay, but not later than 48 hours after arrest, take arrested person before magistrate of county where arrested -Magistrate shall inform person: 1.accusation against him 2. right to retain counsel 3. right to remain silent 4. right to have an attorney present during interviews 5. right to terminate interview at any time 6. right to have an examining trial 7. right to request appt. of counsel if person cannot afford one 8. procedures for requesting appt. of counsel 9. not required to make a statement and that any statement made may be used against him

Search warrant may be used to search and seize

-Stolen property -Property used in commission of offense -Arms/Ammo used for riot/insurrection -Prohibited weapons -Gambling devices -Obscene materials intended to be distributed illegally -Drug/paraphernalia -Illegal possession of property -Instruments used in a crime -Property (other than personal writings) of accused -Persons -Contraband -Electronic customer data -Cell phones

Legislatures during the session of the Legislature can't be arrested except for

-Treason -Felony -Breach of the peace

Days allowed if warrant is for access to stored communications and other stored customer data

10 whole days

Days allowed if warrant is for specimens of a person for DNA analysis and comparison including blood and saliva

15 whole days

When a person is arrested they are

Actually placed under restraint or taken into custody by LEO or someone executing a arrest warrant

During a search warrant an officer may call

Aid from citizens

Peace officer shall arrest without warrant someone who commits

Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case in the presence of the officer

Accused liberated

• Once bond is taken, accused shall at once be set at liberty • Victim of family violence will be notified as to prevention of family violence • A reasonable attempt will be made to notify the victim (last known phone number or address on file, etc) -Note/Example: Notification of release for the release of someone like a spouse, subject of an EPO