Updated September 15, 2021; Original Post: April 25, 2016
If you have been arrested in Texas for a felony or misdemeanor crime, it is important that you determine if the police had a legal basis to arrest you. Under both United States and Texas law, a police officer must have probable cause to arrest someone for a crime. Probable cause is normally developed by either preparing a warrant with an accompanying arrest warrant affidavit outlining the specific facts relied upon for the arrest, or by performing a warrantless arrest where the police officer must establish specific facts relied upon developing probable cause for the arrest.
In this article, we will examine the specific factors that should be examined by your criminal defense attorney in determining whether a warrantless arrest was legal. Did the police have probable cause, as defined by the law? Did they just arrest you because they didn’t like you? Did they follow the procedural due process requirements under the Constitution? If not, your criminal case may be eligible to be dismissed or thrown out.
What Are The Requirements For An Arrest Without A Warrant?
The police do not have authority to make an arrest in Texas without a warrant. If the police do make an arrest without a warrant, then the police must justify their actions under the law. The first question that should be asked by your criminal defense attorney is this: did the reason the police officer give to arrest you line up with a Texas statute?
Evidence that was seized or statements that were subsequently made after an unlawful arrest may be suppressed, that is thrown out of court. Texas law also allows private citizens to make arrests in limited circumstances as well. Those charges may stick if done correctly. If not, then any evidence obtained because of your unlawful detention will be suppressed. If you were arrested without a warrant, call our law office today to schedule a free consultation.
For example: It is very common for narcotics officers to arrest people illegally without a warrant. Why? Because the police officer may not be interested in charging you with a crime. Their main goal may be to squeeze you by threatening to charge you with a drug charge if you don’t provide information about who the drug dealer is and how to locate him.
The authority police have to make arrests is given to them by Texas and Federal statute. A police officer may arrest any person who is subject to arrest by authority of the warrant. If a warrantless arrest is made, then police must justify their actions. An officer may make a warrantless arrest in many circumstances, if the circumstances fit within the statute. A police officer can make an arrest if he has probable cause to believe the person committed a crime and that person is in a suspicious place. This assumes the officer did not personally observe the crime.
Probable cause is information leading a police officer to believe that a person is committing a crime or has committed a crime. Probable cause is more than “mere suspicion” but does not have to rise to the level of proof showing a preponderance of the evidence, let alone proof beyond a reasonable doubt.
For example: you had a nice night out with some friends a local pub and as you pull out of the parking lot, a police officer pulls you over. You find out that the police officers were waiting for people to pull out of the bar to check them for DWI. The officers were acting on a mere hunch that people leaving a pub would be intoxicated. Absent other specific evidence establishing probable cause (driving facts that may establish possible intoxication or other traffic violations), this would be an illegal traffic stop and if arrested, it would be an illegal arrest.
The legal standard of probable cause was established as an effort to strike a balance between legitimate law enforcement procedures and keeping the public safe from police making rash decisions or violating your right to privacy. In reviewing whether an officer possessed probable cause to make an arrest, the judge will look at the “totality of the circumstances” of the situation.
What if the police officer observes a crime taking place? This is known as the “plain view” doctrine. If a police officer observes a crime take place in plain view, he may arrest without a warrant.
Once the probable cause standard is satisfied, then the police may make an arrest without a warrant if the person is found in a suspicious place. What exactly does “suspicious” mean? How is this determined? The courts have stated the circumstances must be fully examined and based upon the totality of those circumstances, “suspicious” can be determined.
Does that sound subjective? Yes! In other words, what may seem completely normal to you may be determined to be “suspicious” by the criminal courts. In this situation, Texas Penal Code statutes are not helpful. Your criminal defense attorney will need to do extensive criminal case law research to determine if your set of facts are similar to other appellate cases where the higher courts in Texas have ruled that the facts did NOT fit the definition of “suspicious.”
Additionally, your criminal defense attorney needs to review not only the police reports but compare the videos of the incident to the report to determine if the police officer’s report is accurate. It is not uncommon for a police officer to write up a report that makes you look bad. In fact, some police officers tend to exaggerate the facts against you and your criminal attorney can show what happened through the video and this may give you the opportunity to win your case by having your arrest thrown out for lacking probable cause.
What are some examples of “suspicious places?”
If the crime involves a motor vehicle or the motor vehicle is used to commit the crime, then the motor vehicle itself may be a suspicious place. Otherwise, a suspicious place may be the location where a crime occurred or where police believe a crime occurred. Additionally, the location where the suspect is or may be connected to is also a suspicious place.
In addition to the location playing a role in defining a “suspicious place,” the suspect’s behavior will also play a role in determining whether the place is suspicious. A person’s “odd” behavior may turn an innocuous location into a suspicious place because of that person’s conduct.
For example: a police officer pulls you over for running a red light. As he approaches the car, he believes that you are “sweating profusely” and “appear to be making furtive movements” that make him believe you could be trying to hide something under the seat. Is this “odd behavior.” The police officer will likely take these observations and use them as a reason to claim that he believes criminal activity may be going on. Many police officers in this scenario would claim that this is behavior indicative of someone on methamphetamine or someone that may be attempting to hide drugs or a weapon from the officers’ view. As a result, even though the car itself may not be “suspicious,” your behavior in the car could be used by the officer to establish probable cause for a search and then possibly an arrest.
For example: what if an officer sees someone bent down near a car looking like they may be trying to get inside the vehicle? Its one thing if they are having a hard time opening the door with a key but it is altogether different if it looks like they are trying to force their way into the vehicle or fish a coat hanger through a window to enter the vehicle. The officer will be considering places, times and circumstances where he has seen crimes being committed in the past.
A police officer may make an arrest based upon probable cause in other circumstances. For instance, a police officer may arrest a person after an investigation for driving while intoxicated if the crime is in the view of the officer. The officer is not required to view every fact giving rise to probable cause to arrest. The officer may rely upon information from fellow officers working on the same investigation and who are members of the same agency to establish probable cause that a crime was committed.
Many other circumstances exist that allow police to make warrantless arrests. For instance, police are permitted to make arrests if they have probable cause to believe an assault was committed causing injuries and that the failure to arrest may result in additional injuries. Police are also permitted to arrest for violations of protective orders as well as in instances of family violence.
Can The Police Arrest Without A Warrant Based Only Upon Someone Else’s Word?
Unfortunately, yes, they can. In fact, it happens all the time. This happens frequently in the context of domestic violence and aggravated assault deadly weapon charges. For example: a girlfriend may get very emotional when she finds out her boyfriend is cheating on her and confront him about it. In the process of confronting him, he denies it and she gets angry and starts becoming combative with him and that leads to an exchange of grabbing and clawing that takes place. The girlfriend becomes so angry that she calls the police, and she tells them that she was injured by the exchange of grabbing. Even though there may be no visible proof of injury (bruising, scratching, etc.), the police officer may arrest the boyfriend if the police officer believes the woman’s word.
Is it really that easy to get arrested? Yes, it is! That is why it is so important that you make the right decision when choosing the best criminal defense attorney for your case. Does the criminal defense law firm you are looking at have proven experience? Have they handled many situations like yours in the past? Can they articulate the specific steps you must take to maintain your freedom and clear your good name?
Who To Call If You Have Been Wrongfully Arrested
Fort Worth criminal defense attorney Brandon Fulgham fights every day to protect the rights of people wrongfully charged. As a former prosecutor, Attorney Fulgham knows when the police have made a mistake. Mr. Fulgham and his team of 5 Former Prosecutors can file motions and request hearings to have your illegal arrest heard before a criminal judge
Motion To Suppress
A motion to suppress is the legal documentation that must be filed with the court for your criminal defense attorney to challenge the legality of the search and arrest. At this hearing, your criminal attorney can call the police officer to the witness stand and cross examine him on the specifics of the police reports and videos. At this hearing, your criminal lawyer will be able to expose the inconsistencies and errors by the police officer to have your case dismissed due to an illegal search, stop or arrest.
If the judge wrongfully rules against you in the motion to suppress hearing, your criminal defense lawyer may be able to argue the same illegal arrest to a jury at a jury trial. If you can create a dispute of fact regarding the legality of the stop, search or arrest, the jury may decide to render a verdict of Not Guilty based upon the search, stop or arrest being illegal. Remember, under the United States and Texas Constitutions, if a police officer violates your privacy rights by illegal searching, stopping or arresting you, any evidence obtained as a result of that illegal stop, search or arrest is inadmissible in trial.
If you have been arrested, call Attorney Fulgham at 817-764-1392 to set up an appointment. Attorney Fulgham will thoroughly review your case to find the best defenses for you.
- Tx. Penal Code 14.01 et. seq.
- State v. Romo, Tx. App. Ct. 2015
- State v. Parson, 988 SW 2d 264 (Tx. App. Ct. 1998)
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.