Posted on 10/10/16

Usually, a defendant is arrested and then charged with a crime. Like other areas of criminal law, the arrest must be lawful. Texas law codifies and courts discuss how to determine a lawful arrest.

Definition of an Arrest

The Texas Code of Criminal Procedure defines an arrest as follows:

A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” The Texas Court of Criminal Appeals explained the concept of arrest as occurring when a person’s liberty of movement is restricted or restrained. In the Hunter case from 1997, the Court explained that “The crucial test is whether, taking into account the totality of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”

Authority for a Warrantless Arrest

The Texas Code of Criminal Procedure provides:

“(a) A peace officer [who is a person charged with keeping law and order, including a sheriff or police 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 or as an offense against the public peace; (b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”

Pretext Arrest

Texas law also allows for a pretext arrest. A pretext arrest occurs when an individual is validly stopped or arrested for one offense only because law enforcement officials desire to investigate that individual for a different offense. The pretextual offense is usually minor in comparison to the other offense. This includes an arrest for an offense that law enforcement does not have valid legal grounds to stop and arrest.

Fourth Amendment

The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures by government officials. A seizure, or arrest, of another person must be based on reasonable suspicion. Texas law provides an exception to this rule when an officer is acting in a community-caretaking role.

In recognizing the community-caretaking function as an exception, the Court of Criminal Appeals stated that “[a]s a part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.” However, a police officer must be primarily motivated by a caretaking purpose; the exception is not applicable if the police officer is primarily motivated by a non-community caretaking purpose.

To determine whether a police officer properly invoked his community-caretaking function and is therefore not in violation of the Fourth Amendment, we need to make a two-step inquiry:

  • Whether the police officer was primarily motivated by a community-caretaking purpose; and

  • Whether the officer’s belief that the individual needs help was reasonable.

If you are in custody or have been arrested and have been charged with a crime, you need a lawyer who will fight on your behalf. Contact the law firm of Christopher Abel, a board-certified criminal defense lawyer.

(image courtesy of M. Connors)


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