Arrest Search and Seizure
Arrest Search and Seizure: General Definitions and Misc.
Terms in this set (57)
Three Types of Interactions (Classifications)
1. Consensual encounter
2. Investigatory Stop/Detentions
The four elements used by courts to see if an arrest occurred
3. Actual Seizure
Peace officer's intention to take a person in to custody
The peace officer's arrest must be made under real authority. Authorized to make an arrest supported by probable cause. (Penal Code and CCP gives a peace officer authority to arrest)
person arrested is taken into physical custody by force or submission.
by the person to be arrested knowing of the officer's intention to arrest.
When a person is arrested (CCP 15.22)
Actually placed under restraint of taken into custody by an officer or person executing a warrant of arrest, or by an officer arresting without warrant.
Constructive custody (CCP 11.21)
"Confined, imprisoned, in custody, confinement, imprisonment" - refer not only to detention of a person, but likewise to any coercive measures by threats, menaces, or the fear of injury. One person exercises control of another and detains with limitations.
Control which one person exercises over another. Not to confine him within certain limits, but to subject him within certain limits.
Offense within view (CCP 14.01)
• A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence, or within his view, if the offense is one classed as a felony.
• A peace officer may arrest without warrant for any offense committed in his presence or within his view.
Within view of a magistrate (CCP 14.02)
A peace officer may arrest, without warrant, when a felony or breach of the peace has occurred.
When felony has been committed (CCP 14.04)
Where it is shown by satisfactory proof to a peace officer, upon representation of a credible person, that a felony has been committed, and that the offender is about to escape, so there is not time to procure a warrant.
Must take offender before magistrate (CCP 14.06)
After an arrest is made an officer must bring the offender before a magistrate without unnecessary delay but not to exceed 48 hours. - before some magistrate in the county where the arrest was made.
Rights of officer (CCP 14.05)
• Specifications on when an officer can make arrest with special precaution stating that an officer may not enter a residence to make an arrest unless:
o A person who resides in the residence consents to entry
o Exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without warrant.
Preventing consequences of theft (CCP 18.16)
Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, along with the offender, to a police officer or magistrate.
Diplomatic immunity of international law by which certain government officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a large extent, their personal activities.
Privilege of Legislators (CCP 1.21)
Senators and representatives shall have special privileges while in session, except in cases of Treason and Breach of the peace - felonies as well.
Warrant of Arrest (CCP 15.01)
A warrant of arrest is a written order from a magistrate, directed to a peace officer or some other person specially named, commanding him to take the body of the person accused of an offense, to be dealt with according to law.
Requisites of a Warrant (CCP 15.02)
• Make sure it's issued in "State of Texas"
• Specify the name of the person whose arrest is ordered - as much information as possible to identify the individual
• Must state if the person is accused of some offense against the laws of the state
• It must name the offense
• It MUST be signed by a magistrate
• The affidavit made before the magistrate or district, or county attorney is called a "complaint" if it charges the commission of an offense. Establish.... Probable cause and list the circumstances
Requisites of a complaint (CCP 15.05)
• Shall be sufficient (specific), without regard to form, it should have substantial requisites:
1. Must state the name of the accused
2. Must show that the accused has committed some offense against laws of the state
3. Must state the time and place of the commission of the offense
4. Must be signed by the Affiant
Warrant extends to every part of the state (CCP 15.06)
Shall extend to any part of the state - all magistrates, except for mayor of incorporated city - in which it shall be endorsed by a magistrate with the proper jurisdiction. Includes Warrant issued by other magistrate (CCP 15.07)
How warrant is executed (CCP 15.16)
Without unnecessary delay take the person of have him taken before the magistrate who issued the warrant or before the magistrate named in the warrant. If he is arrested in another county he will be magistrated in that county and taken to the warrant jurisdiction without necessary delay.
Duties of arresting officer and magistrate (CCP 15.17)
48 hours for defendant to go before a magistrate - may be electronic broadcast to advise defendant of charges and rights.
Notice of arrest (CCP 15.19)
the inability/refusal to post bail - shall be committed to the jail of the county where the person was arrested. 72hr time limit on transfer when remanded back to jail.
Warrant or complaint must be under seal (CCP 15.12)
A person is arrested when he has been actually placed under restraint or taken into custody by and officer or person executing a warrant of arrest, or by a person or officer arresting without warrant.
Time of arrest (CCP 15.23)
Anytime, any day, any date. Let's go!
What force may be used (CCP 15.24)
In making an arrest, all reasonable means are permitted to be used to effect it.
May break door (CCP 15.25)
In case of felony, the officer may break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose. - in case of felony/exigency
Authority to arrest must be made known (CCP 15.25)
It shall always be made known to the accused under what authority the arrest is made. The officer doesn't need to have the warrant on him at the time, but will acquire one without unnecessary delay. If this is the case the officer must advise the defendant of the charges against him and let him know that a warrant has been issued.
• A hunch or a feeling of intuition. It's not enough in a court of law. Mere Suspicion = insufficient proof.
• You can build on mere suspicion by conducting.... computer checks, utility checks, surveillance and initiating an encounter... then articulate these facts to create probable cause.
P.C. for Search
Exists where the facts and circumstances within their knowledge and of which they had reasonably trustworthy information, sufficient in themselves to warrant a man of reasonable caution in the belief that seizable property would be found. CARROLL vs. UNITED STATES- Carroll Doctrine -
P.C. for Arrest
The faacts and circumstances within knowledge and of which they had reasonably trustworthy information, sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. BRINEGAR vs. UNITED STATES (1949)
The probable cause test
• Must be OBJECTIVE - meaning that, for there to be probable cause, the facts must be such as would warrant belief by a reasonable man.
Not influenced by personal feelings
Allowing bias into effect to draw conclusions
Applying probable cause
• You MUST already have probable cause before the arrest and before the search.
• Probable cause will come first.
• The court will examine the "totality of the circumstances" (all characteristics of the case interpreted to conclude PC) surrounding seizure or detention.
• Only the information known by the officer at the moment of the seizure or search will be considered by the court.
Reasonable suspicion has been defined by the court as sufficient articulable facts and circumstances, and reasonable inferences drawn from those facts, which would lead a reasonable officer to conclude that criminal activity is afoot.
Temporary detention is holding a person for a limited time, but, who as yet, is not answerable to a criminal offense. - Ex. Description of offender is pending and you locate an individual within the general vicinity that may be involved and hold him.
Is a "pat-down" of the outer clothing of a person whom you have stopped
• It exists to protect/provide officer safety... It's NOT a fishing expedition
• You must articulate reasons why an officer was in fear of his safety... The officer must be looking for weapons that can cause SBI or Death.
Frisk and Contraband
Officers may pat down entire body, but typically exterior clothes only. If you IMMEDIATELY and only IMMEDIATELY recognize contraband on the inner portion of clothes you may get it, but you must articulate your reasoning for doing so! PC cannot be established after the fact.
Vehicle and Searching
Immediate area of vehicle can be searched, once again for officer safety, until PC is established. When the person steps out of the vehicle and is frisked, officer can glance/search immediate area to make sure there is nothing within reach that can harm officer or suspect.
• In order for a search to be conducted, PROBABLE CAUSE MUST BE ESTABLISHED!
• Generally defined as an examination or inspection of a location, vehicle, or person for the purpose of locating items involved in criminal activity.
• Evidence is anything to be offered in court to prove the facts of a case.
• A search warrant is based on PROBABLE CAUSE
• The magistrate will determine if the probable cause is sufficient by examining information state in affidavit.
• The items of the search and places to be searched must be specified (in depth and to best of ability) in the search warrant.
Contents of a search warrant: (CCP 18.04)
1. Run in the name of "The State of Texas"
2. That it identify the property to be seized and name or describe the person place or thing to be searched.
3. That it command any peace officer of proper county to search the person, place, or thing named.
4. That it be dated and signed by the magistrate
Execution of warrants (CCP 18.06)
If the person is not present of the residence that is to be searched, a copy of the warrant shall be provided to the individual at the residence. Before an officer takes property from the residence an inventory shall be created and should be signed. A copy will be left at the residence as well as provided for the magistrate. Leave a copy of the warrant and inventory at the place.
Custody of property found (CCP 18.11)
Take the property and keep it in a place the magistrate designates. You won't bring all the property before the judge. You'll place it in evidence and provide magistrate with inventory list.
Subject to order of court (CCP 47.01)
An officer who comes into custody of property alleged to have been stolen shall keep it until the ownership of the property is contested or disputed.
How return made (CCP 18.10)
The officer shall document the execution of the warrant and how it was executed. The officer shall place it in a place of safe keeping in the county in which it is seized. It can be transferred to a laboratory or another county with approval and when deemed necessary.
Knock and Announce needed
• Peace officers are generally required to knock and announce their presence, authority, and purpose before entering a premise to execute a warrant. This is due to:
o To reduce risk of violence inherent to any unannounced entry
o To protect privacy by reducing the risk of entering the wrong premise
o To prevent property damage
Knock and Announce not needed
• Not every knock/entry must be preceded by an announcement if reasonable suspicion confirms the following:
o Physical violence will occur
o Be futile or useless gesture
o Result in the likelihood that evidence will be destroyed/damaged
Area of open space surrounding a dwelling which is adjacent to dwelling, and is considered part of the house.
Who can give consent
• Parent/Child - Parents give consent for child's quarters
• Spouses - if one says "no" that means "no"
• Roommates - Their own rooms and common areas only
• Landlord/tenant - A landlord cannot give consent to search property that is rented out.
• Hotel/Motel - Clerks may not consent to a room that is paid for
• The officer must be lawfully present.
• It must immediately be apparent to the officer that what they see is contraband or connected with criminal activity
Impound and inventory
• When a vehicle is impounded all property must be inventoried for liability reasons as well as others.
• Under Texas Law, before an inventory can be conducted the reason the vehicle is impounded must be lawful. Alternate arrangements can be made to get the vehicle moved.
• If obtaining evidence violates a person's rights and or is unconstitutional...The evidence cannot be used. (Mapp vs. Ohio)
Which case created "fruits of the poisonous tree doctrine"?
• WONG SUN vs. UNITED STATES