Probable Cause, Warrants, and Writs

Presented by

Timothy J. Murphy

Presiding Judge

City of Bedford

Are you ready to answer questions about authority to issue Writs?

• Are you ready to give the constitutional or statutory authority for taking a person’s freedom?

• Are you ready for a subpoena requesting your testimony?

• Has anyone been called to testify as a Judge or Magistrate?

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Objectives

Identify the authority to issue writs

Define probable cause

Examine cases on probable cause

Apply probable cause to scenarios

Author Purpose of this lecture:

• Think about the authority behind issuing Writs

• Review procedures and policies

• Nothing new just a review and organization of thoughts to help when you are asked…

Why are Judges and Magistrates given authority to

issue warrants?

• Judges and Magistrates are “neutral and detached”

• Thus serve as a buffer between the State and Citizens.

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Do Judges or Magistrates have a duty to review Warrants and other Writs?

Magistrate Duty on warrant review

• Art. 2.10. DUTY OF MAGISTRATES. It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.

Code of Judicial Ethics

• Cannon 3

• (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.

• (9) A judge should dispose of all judicial matters promptly, efficiently and fairly.

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Is the duty to review warrants 24 hours a day?

• Yes, it is part of the Judicial function as a Magistrate!

• Does your jurisdiction have any rotation schedule?

• Just turn the cell phone off?

What is a Writ?

a form of written command in the name of a court or other legal authority to act, or abstain from acting, in some way.Usual Writs issued by Magistrates or Judge:

• Warrant

• Capias

• Capias Pro Fine

The big two writs in the role of Magistrate:

• Arrest Warrant CCP Art 15

• Search Warrant CCP Art 18

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The big two writs in the role of Municipal Judge:

• Arrest Warrant Art 45.014

• Capias Pro Fine Art 45.045

Authority and protection on writs:

• 4th Amendment

• Texas Constitution Article 1 Section 9

• Code of Criminal Procedure Article 1.06

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Texas Constitutional Authority:Article 1 section 9

Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Art. 1.06. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches. No warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation.

Authority to issue arrestwarrants

• 4th Amendment

• Texas Article 1, section 9

• Art 1.06 CCP

• Art 15.01

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Authority to issue arrestwarrants

CHAPTER 15. ARREST UNDER WARRANT

Art. 15.01. WARRANT OF ARREST. 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.

Art. 15.02. REQUISITES OF WARRANT. It issues in the name of "The State of Texas", and shall be sufficient, without regard to form, if it have these substantial requisites:1. It must specify the name of the person ...2. It must state that the person is accused of some offense…3. It must be signed by the magistrate, and his office be named in the body of the warrant.

Art. 15.03. MAGISTRATE MAY ISSUE WARRANT OR SUMMONS.

(a) A magistrate may issue a warrant of arrest or a summons:1. In any case in which he is by law authorized to order verbally the arrest of an offender; (see Art 14)2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; and3. In any case named in this Code where he is specially authorized to issue warrants of arrest.(c) For purposes of Subdivision 2, Subsection (a), a person may appear before the magistrate in person or the person's image may be presented to the magistrate through an electronic broadcast system.(d) A recording of the communication between the person and the magistrate must be made if the person's image is presented through an electronic broadcast system under Subsection (c). If the defendant is charged with the offense, the recording must be preserved until:(1) the defendant is acquitted of the offense; or(2) all appeals relating to the offense have been exhausted.(e) The counsel for the defendant may obtain a copy of the recording

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Where is the Authority for issuing a search warrant as a magistrate?

ARTICLE 18 TEXAS CODE OF CRIMINAL PROCEDURE

CHAPTER 18. SEARCH WARRANTS

• Art. 18.01. SEARCH WARRANT.

• (a) A "search warrant" is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate

• (b) 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.

• A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Except as provided by Article 18.011, the affidavit is public information if executed, and the magistrate's clerkshall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours.

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(c) A search warrant may not be issued under Article 18.02(10) unless the sworn affidavit required by Subsection (b) sets forth sufficient facts to establish probable cause: • (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, and

• (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. Except as provided by Subsections (d), (i), and (j), only a judge of a municipal court of record…

(d) Only the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 of this code or property, items or contraband enumerated in Subdivisions (1) through (9) or in Subdivision (12) of Article 18.02 of this code may be seized. A subsequent search warrant may be issued pursuant to Subdivision (10) of Article 18.02 of this code to search the same person, place, or thing subjected to a prior search under Subdivision (10) of Article 18.02 of this code only if the subsequent search warrant is issued by a judge of a district court, a court of appeals, the court of criminal appeals, or the supreme court

All affidavits supporting warrants must be:

• Under oath

• Sworn to before a person authorized to take oath

• Based upon Probable Cause

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Probable Cause

• No Statutory Definition

• Defined by the Supreme Court

• Texas Court of Criminal Appeals

• Texas Appellate Courts

A determination requiring more than mere suspicion but far less evidence than that needed to support a conviction (beyond a reasonable doubt) or even that needed to support a finding by preponderance of the evidence.

Evidence need not be admissible to be considered in the probable cause determination.

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An unarticulated hunch, a suspicion, or the good faith of the arresting officer is insufficient to support probable cause

Probable cause must be based upon fact and circumstances not

conclusions

A reviewing court will look at the “totality of the circumstances” to determine if probable cause exists.

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Missouri V. McNeely(U.S.2013)

DWI blood evidence

Post arrest blood drawn without warrant

Blood drawn not based upon statutory implied consent

Blood drawn based on exception to 4th amendment of “exigent circumstances”

Is a blood draw a search under the 4th amendment:

Yes!

Thus a warrant is required

Exigency exception:

Emergency situation which does not allow time for a warrant to be

issued

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Previous case of blood drawn

Schmerber V. California

blood drawn after DWI arrest was declared an “exigent circumstance” thus an exception to the 4th Amendment

– the natural dissipation of alcohol after alcohol intake stopped

Texas Transportation Code Section 724, Implied Consent

Sec. 724.012. TAKING OF SPECIMEN. (a) One or more specimens of a person's breath or blood may be taken if the person is arrested

(1) while intoxicated was operating a motor vehicle in a public place,

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances

(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the

officer reasonably believes that as a direct result of the accident:

(A) any individual has died or will die;

(B) an individual other than the person has suffered serious bodily injury; or

(C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;

(A) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state

containing elements substantially similar to the elements of an offense under those sections; or

(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an

offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.

After McNeely, what is the status of Implied Consent under TRC 724 in Texas?

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Case Law update on McNeely• In The

• Court of Appeals

• Sixth Appellate District of Texas at Texarkana

•

• No. 06-13-00126-CR

•

•

• CLAYTON DEAN REEDER, Appellant

•

• V.

•

• THE STATE OF TEXAS, Appellee

•

•

• On Appeal from the 4th District Court

• Rusk County, Texas

• Trial Court No. CR 13-062

“The implied consent law does just that—it implies a suspect’s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beemanv. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) (emphasis added). Further, The implied consent law expands on the State’s search capabilities by providing a framework for drawing DWI suspects’ blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.

Id. at 616. Our sister court recently addressed a similar issue in

Smith v. State, No. 13-11-00694-CR, 2013 WL 5970400, at *1 (Tex. App.—Corpus Christi Oct. 31, 2013, no pet. h.).8In that case,

Smith appealed his conviction for DWI—third offense, contending that the Texas implied consent statute, pursuant to which his blood specimen was obtained, is unconstitutional in light of McNeeley. Id. at 3.

Purpose Prior to Formal ChargingAfter Formal Charging but

Prior to Judgment After Judgment and Sentence

Bond Forfeiture orSurrender of Principal

“Arrest Warrant” by Magistrate

− Article 15 and 17.19

“Chapter 23 Capias” by Trial Court

To Procure Custody

“Arrest Warrant” upon oath ofaffirmation & determination of

probable cause by Magistrate

− Specific Provision: Article

45.014 “Arrest Warrant”by Municipal Court or

Justice Court

“Chapter 23 Capias” by Trial Court

− Specific Provision: Article45.014 “Arrest Warrant”by Municipal Court or

Justice Court

“Chapter 43 Capias” by Trial Court

− Article 43.015(1)

− Article 43.04

To Enforce Judgment for

Unpaid Fines and/or Costs

“Capias Pro Fine” by Trial Court

General Provisions

− Article 43.015(2)

− Article 43.021

− Article 43.05

− Article 43.06

− Article 43.07

Specific Procedures in Chapter

45 Courts

− Article 45.045

− Article 45.046

Specific Procedures in Other

Trial Courts

− Article 43.03

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Magistrate Duties also: CiteIssue emergency protection orders for an offense involving family violence

Article 17.292, C.C.P.

Issue a warrant when any person informs the judge, under oath, of an offense about to be committed

Article 7.01, C.C.P.

Conduct peace bond hearings Article 7.03, C.C.P.

Verbally order a peace officer to arrest, without warrant, when a felony or breach of the peace is committed in the presence or within the view of a magistrate

Article 14.02, C.C.P.

Accept complaints (probable cause affidavit) and issue arrest warrants and summonses (these complaints are for Class A and B misdemeanors and felony offenses)

Article 15.17, C.C.P.

Give magistrate warning after arrest Article 15.17, C.C.P.

Take a plea and set and collect a fine when a defendant is arrested on an out-of-county warrant for a fine-only offense

Article 15.18, C.C.P.

Probable Cause Scenarios

Handout…

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Scenario 1

Torres v. The State of Texas (Tex. Crim. App. 2005)

DWI probable cause:

Trooper Sulak was awakened at 2:38 a.m. to investigate an accident. Two county sheriff’s deputies were

first on the scene; DPS was called to investigate the accident. Trooper Sulak arrived at 3:07 a.m. and

noted that the vehicle had left the roadway and traveled about 150 feet before colliding with the front

porch. The sheriff deputies told Trooper Sulak they believed the driver, Jeffrey Torres, to be intoxicated.

Mr. Torres explained that he was unfamiliar with the road and had made a wrong turn. Trooper Sulak

did not administer any field sobriety tests and arrested Mr. Torres for DWI. Mr. Torres was taken to the

hospital for a broken arm and a cracked rib. Later Mr. Torres refused to submit a breath test.

Court of Appeals finds that the arrest lacks probable cause.

“An unarticulated hunch, a suspicion, or the good faith of the arresting officer is insufficient to support

probable cause”

Can the Trooper rely on observations of the Deputies in the probable cause determination?

Single car accident and smell of alcohol = probable cause?

Scenario 2

DWI probable cause:

In the early morning hours of October 29, 2003, San Antonio Police Detective Paul Biasiolli heard a

report over his police radio that a blue VW with a ski rack was traveling erratically and at a high rate of

speed. Biasiolli heard the vehicle approach his location within a minute of the call. Biasiolli observed

the vehicle pass through a flashing yellow light at 60mph and crash into a telephone pole attempting a

left turn. Biasiolli observed the driver Cullen was unsteady on his feet, slurred his speech, and his eyes

were bloodshot and glassy.

Officer Marcus arrived on the scene within 35 seconds of the crash. Marcus observed Cullen to have a

slight sway and did not have his balance. Marcus smelled a strong odor of alcohol on Cullen’s breath.

Cullen admitted to drinking alcohol. Marcus administered several field sobriety tests to Cullen, including

HGN, walk and turn, one-leg stand test. Marcus reported Cullen failed all tests.

Cullen was placed under arrest for DWI, once back at the police station, Cullen complained of head

injuries.

The trial court found the arrest lacked probable cause. On appeal the trial court was overturned. The

court reasoned that the totality of the facts are sufficient to establish probable cause.

Cullen v. The State of Texas (Tex.App.-San Antonio 2007)

Single car accident, failed road side sobriety test and smell of alcohol = probable cause

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Scenario 3

DWI probable cause:

The facts surrounding defendant's accident and subsequent transport to the hospital are

uncontradicted. The weather on the day of the accident was clear. Defendant’s motorcycle was the only

vehicle involved in the accident, and there were gouges in the pavement twenty feet in length.

Based upon these facts, Officer Bement could infer the accident was due to the loss of driver control.

When asked, defendant was unable to answer simple questions such as what his name and telephone

number were. Defendant repeatedly asked what happened and had to be told that he was involved in

an accident. Finally, defendant smelled strongly of alcohol.

We conclude, based on the record before the trial court, that the State established Officer Bement

possessed probable cause to arrest appellant at the time the blood was drawn. We overrule appellant's

second point of error.

Knisley v. The State of Texas (Tex.App-Dallas 2002)

Single car accident and smell of alcohol = probable cause

Scenario 4

DWI probable cause:

Driver arrested for DWI after a collision with a parked car. The officer smelled a strong odor of

marijuana and the driver complained of head injuries. HGN was observed, driver was unsteady on her

feet and no field sobriety tests were attempted.

Probable cause sufficient for a blood warrant?

Scenario 5

DWI probable cause:

Driver arrested for DWI after stop for speeding. Officer observed bloodshot eyes, unsteady on her feet,

admitted to taking Oxycodone and refused all tests.

Probable cause sufficient for a blood warrant?

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CHRONOLOGICALLY DISTINGUISHING THE

WARRANT, CAPIAS, AND CAPIAS PRO FINE IN THE TEXAS CODE OF CRIMINAL PROCEDURE

Purpose Prior to Formal Charging After Formal Charging but

Prior to Judgment After Judgment and Sentence

Bond Forfeiture or

Surrender of Principal

“Arrest Warrant” by Magistrate

− Article 17.19

“Chapter 23 Capias” by Trial Court

To Procure Custody

“Arrest Warrant” upon oath of

affirmation & determination of

probable cause by Magistrate

− Specific Provision:

Article 45.014 “Arrest

Warrant” by Municipal

Court or Justice Court

“Chapter 23 Capias” by Trial Court

− Specific Provision:

Article 45.014 “Arrest

Warrant” by Municipal

Court or Justice Court

“Chapter 43 Capias” by Trial Court

− Article 43.015(1)

− Article 43.04

To Enforce Judgment

for Unpaid Fines

and/or Costs

“Capias Pro Fine” by Trial Court

General Provisions

− Article 43.015(2)

− Article 43.021

− Article 43.05

− Article 43.06

− Article 43.07

Specific Procedures in Chapter

45 Courts

− Article 45.045

− Article 45.046

Specific Procedures in Other

Trial Courts

− Article 43.03

© TMCEC (2007) Version 5 - 8/09

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