A Peace Officer’s Guide to Texas Law

1 APeace officer s Guide to Texas Law2013 EditionA Peace officer s Guide to Texas Law2013 EditionbyJoe C. Tooley, Legal Digest EditorJoe C. Tooley, Attorneys & Counselors, Rockwall, TexasPublished byTexas Police Association2013 Copyright 2013 Texas Police Box 4247 Austin, Texas 78765 Texas POLICE ASSOCIATIONF ounded March 6, 1895(512) 458-3140 Fax (512) is the Fifteenth Edition of A Peace officer 's Guide to Texas Law, and is beingprovided to members of the Texas Police Association as a benefit of membership. ThePolice Legal Digest, contained in each issue of the Texas Police Journal, and the Guideareintended to serve as vital sources of up-to-date information for Texas Peace departments provide all their officers with membership in TPA so that eachofficer will receive a copy of the Guide , a monthly edition of the Police Legal Digest, andother timely articles.

2 This is a wise expenditure of training funds in these times of shrinkingbudgets. Any department interested in signing up their officers should contact the TexasPolice Association office for additional information. For individual membership, anapplication can be found on our website at , in theTexas Police Journal, or in the Texas Police Association deeply appreciates Joe C. Tooley, TPA GeneralCounsel, for his tireless efforts in preparing the Police Legal Digesteach bi-month and themonumental task of writing and assembling this edition of A Peace officer 's Guide toTexas BallartaExecutive DirectorTABLE OF Amendment Overview and Other Constitutional RightsCIVIL IMMUNITY OF PROSECUTION INVESTIGATORS FROM CLAIMS ARISINGFROM GRAND JURY & SEIZUREARRESTS AND DETENTIONSREASONABLE SUSPICION REQUIRED FOR TRAFFIC STOP LEADING TO ARREST SUSPICION TO STOP TRAFFIC IMPEDING SUSPICION PRETEXT DRUG SUSPICION TRAFFIC STOP DWI ARREST.

3 7 ARREST REASONABLE SUSPICION FOR INVESTIGATIVE DETENTION AND SEIZURE officer S ENCOUNTER WITH MEN FOUND BEHINDBUILDINGS IN A HIGH-CRIME AREA WAS CONSENSUAL, BUT REASONABLESUSPICION DEVELOPED WHEN SUSPECT REACHED FOR HIS AND SEIZURE REASONABLE SUSPICION WAS NOT SUPPLIED BYANONYMOUS TIP CORROBORATED ONLY BY INNOCENT ACTIVITY AND DIDNOT SUPPORT AND SEIZURE VEHICLE IMPROPERLY PARKED ON SHOULDEROF HIGHWAY IN A DARK RESIDENTIAL AREA WITH PARKING LIGHTS ONJUSTIFIED COMMUNITY CARETAKING FUNCTION STOP DWI ARREST ..14 SEARCHES DURING ARRESTS OR DETENTIONSJAILS AND DETENTIONS STRIP SEARCH OF INCOMING & SEIZURE DRUG ARREST OF PASSENGER IN VEHICLE DOG SEARCH OF AND SEIZURE. CONSENT. COERCED?

4 18 SEARCH & SEIZURE CONSENT SEARCH ..20 SEARCH AND SEIZURE PROTECTIVE SWEEP ..21 SEARCH & SEIZURE: USE OF SUSPECT S CAR KEY FOB, AFFIRMATIVE AND SEIZURE: CONSENT ..24 SEARCH & SEIZURE -- SEARCH OF CELL PHONE AFTER ARREST FOR DISTURBANCE ..26 SEARCH & SEIZURE VEHICLE SEARCH CONSENT, OBJECTION TO CONSENT BY PASSENGER (driver s common law spouse)..28 DETENTION, AUTOMOBILE SEARCH ..28 DWI CONVICTION INVOLUNTARY BLOOD BREATH TEST CONSENT, VOLUNTARY? ..31 WARRANTSSIGNIFICANT DECISION FOURTH AMENDMENT SEARCH PLACING A GPS TRACKINGDEVICE ON A VEHICLE AND GATHERING DATA IS A SEARCH WHICH REQUIRESA WARRANT SUPREME ANAL SEARCH PURSUANT TO WARRANT SEARCH VIOLATEDFOURTH AMENDMENT EXCLUSIONARY RULE NOT APPLIED UNDER GOOD FAITHEXCEPTION.

5 38 WARRANT APPLICATION BY REMOTE ELECTRONIC MEANS: AFFDIAVIT MAYBE SWORN BY TELEPHONIC WARRANT NO KNOCK WARRANT, RELIANCE ON UNCORROBORATED CURTILAGE, AND SEIZURE. WARRANTS. COMPUTER AND SEIZURE TECHNICAL DEFECTS IN WARRANTS GOOD FAITH WARRANTS WARRANT FOR CODE VIOLATIONS; INDUCED CONSENT; AND SEIZURE. WARRANTS. COMPUTER AND SEIZURE POLICE-CREATED EXIGENCY ..57 SEARCH AND SEIZURE NO EXPECTATION OF PRIVACY IN THUMB DRIVEACCESSIBLE TO SEARCH: CONSENT BY MINOR ..60 USE OF FORCEUSE OF FORCE DEADLY FORCE -- REASONABLENESS QUESTION TURNSUPON FACTS AT TIME FORCE WAS ISSUES AND SUPREME COURT BRADY VIOLATION CONVICTION BASED UPONSINGLE EYEWITNESS ..62 MIRANDA, STATEMENT DURING TRAFFIC STOP DWI BREATH TESTCONSENT, VOLUNTARY?

6 63 STATEMENTS TO STORE PERSONNEL DETAINING SHOPLIFTER ..64 UNSWORN officer REPORTS ARE ADMISSIBLE IN A DUI VIOLATION CONSENT TO SEARCH EXCLUSIONARY LOGS OF DRUG SALES WERE ADMISSIBLE IN CONSPIRACY OF CHILD PORNOGRAPHY ON SUSPECT S COMPUTER BY GUEST. ARREST, BLOOD DRAW. EMT-1 WAS NOT QUALIFIED TO MAKE BLOOD AMENDMENT. MIRANDA. PRE-MIRANDA SILENCE ADMISSIBLE ..70 EVIDENCE ADMISSION OF FACEBOOK MESSAGES..71 DUI TRIAL EVIDENCE OF ARRESTING officer S PRIOR SUSPENSION BRADY MATERIAL?..72 ARREST JUVENILES MIRANDA WARNINGS QUESTIONING OF A JUVENILE (13 )..73 VOLUNTARY CONFESSION PROMISES BY INTERROGATING VOLUNTARY STATEMENT ..77 SEARCH & SEIZURE, EMERGENCY ENTRANCE, EVIDENCE DRIVING ON SHOULDER OF CARTS ON A PUBLIC OFFENSESTHEFT OF COMPUTERS VALUE OF SOFTWARE INCLUDED IN DETERMININGLEVEL OF ELEMENTS DRUG TRAFFICKING ENTRAPMENT ELEMENTS.

7 83 DRUG ENDANGERMENT . ELEMENTS ..87 PUBLIC INFORMATION ACT Texas SUPREME COURT RECOGNIZES A PHYSICAL HARM EXCEPTION TO THE PUBLIC INFORMATION SECOND AMENDMENT DOES NOT PROVIDE RIGHT TO BEAR ARMSTO ILLEGAL AUTHORITY DEFENSE FOR DRUG SMUGGLER, LIMITS ..911A Peace officer s Guide to Texas Law2013 EditionPREFACEThis 2013 Peace officer Guide is a continuation of a semi-annualseries published by the Texas Police Association for many years as aservice to its members. The Guide is a compendium of reports from theLegal Digests of the Texas Police Association from July, 2011, to July,2013. The editor has attempted to select those court decisions which areof significance to the working law enforcement officer and, within thoseselections, has attempted to identify and present the informationpertinent to the daily work of police officers in Texas .

8 This Guide isdedicated to the men and women of Texas law enforcement andespecially to those officers wounded or killed in the line of duty and totheir Amendment Overview and Other Constitutional RightsCIVIL IMMUNITY OF PROSECUTION INVESTIGATORS FROM CLAIMS ARISING FROMGRAND JURY TESTIMONYThe chief investigator for a district attorney s office, testified at grand jury proceedings that resulted inindictments. After the indictments were dismissed, the defendant brought a civil rights action against theinvestigator under 42 U. S. C. 1983, alleging that respondent had conspired to present and did present falsetestimony to the grand jury. The Federal District Court denied the investigator s motion to dismiss on immunitygrounds, but the Eleventh Circuit reversed, holding that the investigator had absolute immunity from a 1983claim based on his grand jury testimony.

9 Held: A witness in a grand jury proceeding is entitled to the same absolute immunity from suit under 1983 as a witness who testifies at v. Paulk, No. 10 788, Supreme Court, Decided April 2, & SeizureArrests and DetentionsREASONABLE SUSPICION REQUIRED FOR TRAFFIC STOP LEADING TO ARREST STANDARDA fter observing a suspicious vehicle, an officer made a stop for a traffic violation resulting in the arrestof the suspect for weapons and drug charges. A motion to suppress evidence was granted by the County Courtat Law in Ellis County based upon a finding that there was no reasonable suspicion to support the original trafficstop. The State appealed and the Waco Court of Appeals affirmed with the following relevant language.

10 (citationsare omitted) (ed. note: The defendant/suspect s name is Police which is not used in the following passages toavoid confusion).The facts that led to the officer s traffic stop of (the suspect) are as follows: at around midnight, an officerobserved a vehicle he did not recognize driving through his patrol area which he had patrolled for several followed the vehicle and got directly behind it so he could run a license check. (The suspect) was the driverof the vehicle. (The suspect) almost immediately turned right in front of the officer into a neighborhood knownfor burglaries and narcotics transactions. The officer did not observe any traffic violations in this turn. The streetonto which (the suspect) turned was in essence a horseshoe shape.