1. Arrest, Search, and Seizure

Question 1

What is an arrest?

Answer 1

An arrest is the “seizure” and taking of the person into custody to answer a criminal charge.

Question 2

What are the 3 requirements for an arrest warrant?

Answer 2

1. Name of suspect or reasonably specific description
2. Name of offense
3. Signature of magistrate

Question 3

How is an arrest warrant obtained?

Answer 3

The officer files a complaint (sworn affidavit) that charges a commission of a crime and contains facts that allow a determination of probable cause.

Question 4

What is the basic requirement for any arrest, with or without a warrant?

Answer 4

Probable cause

Question 5

What is the four corners rule?

Answer 5

A rule that the magistrate issuing the warrant cannot consider anything outside the four corners of the complaint.

Question 6

What is a summons?

Answer 6

An instrument issued in lieu of an arrest warrant that is served on the suspect and requires him to appear.

Question 7

What is a capias?

Answer 7

A capias is a bench warrant for a person’s arrest.

Question 8

Can an officer use force to execute an arrest warrant?

Answer 8

Yes, can “reasonable & necessary” force, but can break down a door only if entry is refused after announcing.

Question 9

When can an arrest warrant executed?

Answer 9

At any time, day or night.

Question 10

What are the 9 exceptions to the warrant requirement (all require probable cause)?

Answer 10

1. Offense committed in officer’s presence
2. Offense involving bodily injury with likelihood of further injury.
3. Violation of protective order (arrest mandatory if in officer’s presence)
4. Family violence
5. Prevented/Interfered with a 911 call
6. Committed a felony, breach of peace, or public intoxication AND found in a suspicious place
7. Suspect committed felony and is about to escape
8. Suspect’s voluntary statement created probable cause
9. Suspect possesses stolen property discovered by the officer.

Question 11

What is a citation in lieu of arrest?

Answer 11

When an officer has discretion to issue a ticket instead of arresting the suspect.
Can be issued for:
- traffic offenses except speeding and open container
- Any Class C (fine-only) misdemeanor except public intoxication
- Certain Class A & B misdemeanors (theft, minor property damage, and possession of < 4 ounces of marijuana.

Question 12

May a police officer outside of his jurisdiction make a warrantless arrest.

Answer 12

Yes, but only for someone who commits a felony in his view, disorderly conduct, breach of peace, or public intoxication.

Local officers can arrest for any offense committed in their view.

Question 13

Does arrest of a D at his residence require an arrest warrant?

Answer 13

Yes, unless there are exigent circumstances or D consents.

Question 14

What must an officer put in his complaint to show a magistrate probable cause?

Answer 14

Must show a reasonable belief that 1) something subject to seizure 2) is on the certain premises 3) at the time the warrant is issued.

It doesn’t matter if the thing is not on the premises by the time the warrant is executed.

Question 15

What 5 items must be contained in the language of a warrant?

Answer 15

1. It runs in the name of the State of Texas
2. Identify the thing to be seized
3. Describe the person, place, or thing to be searched
4. Command ANY peace officer to search the person, place or thing named
5. Be dated and signed by the magistrate

Question 16

What may a warrant be issued for?

Answer 16

• Contraband
• Instruments of a crime
• Fruits of a crime
• Evidence of a crime
• A person, if located in a third party’s house

Question 17

May a search warrant be issued along with an arrest warrant?

Answer 17

Yes, this is a combination warrant. Both search and arrest need to be based on probable cause.

Question 18

What is an evidentiary search warrant issued for?

Answer 18

To search for and seize of property or items, except personal writings of the accused, constituting evidence of an offense or tending to show that a particular person committed an offense.

Question 19

Who may issue an evidentiary search warrant

Answer 19

Only a judge who is a licensed attorney.
Exception: any magistrate may issue if:
- the only licensed-attorney judges are judges of districts including more than one county; or
- the warrant is for a blood sample from a person arrested for DWI

Question 20

What must be present for an evidentiary search warrant to be issued?

Answer 20

1. Probable cause of an offense
2. Specifically described property that constitutes evidence
3. The place, person, or thing where the property can be found

Question 21

What is excluded from the reach of an evidentiary search warrant?

Answer 21

1. Personal writings of the accused
2. Mere evidence in a news media office, radio station, or TV station.

Only the mere evidence in the warrant may be seized except for non-evidence items such as contraband that is in plain view.

Question 22

What is the time limit for executing warrants?

Answer 22

• Within 3 days of issuance, excluding the day of issuance and day of execution
• Within 15 days for a warrant for DNA

Question 23

What must an officer do after executing a warrant?

Answer 23

Produce a copy of the warrant, make and leave a copy of the inventory, and bring the property to the magistrate along with a copy of the inventory.

Question 24

When may a wiretap warrant be issued?

Answer 24

On probable cause that it will reveal evidence of:

• Murder
• Child pornography
• Felony drug offense

May only be issued by the district judge who has been appointed by the presiding judge of the CCA; and only for 30 days with 30 day extensions available.

Question 25

1. What is a pen register?

2. What is a trap and trace?

Answer 25

1. A device for recording phone numbers called
2. A device for monitoring the origin of phone calls

Both may be ordered for up to 30 days.