TexasCHLforum.com

sjfcontrol wrote:srothstein -- Very informative postings -- thanks for the detailed information.

I see from your profile you're a Training Coordinator at TABC. I presume that this position involves knowledge of and training others in how Texas law works?

Oops. I forgot to change the profile, thanks for reminding me. I was the training coordinator for TABC but have moved over to teh Property Tax Divisiion in the Comptroller's office. I am also applying for a reserve police officer job.

But in addition to that position, I have worked for about 30 years in law enforcement. That includes the military police, San Antonio PD, and Luling PD before I went to TABC. My bachelor's is in criminal justice and my master's is in management. I started a doctorate in leadership studies but I was just accepted to transfer to Texas State for their doctorate program in criminal justice. I guess you could say I am dedicated to being a cop and improving law enforcement. I really have no use for bad cops, including dumb ones who refuse to learn the law, or who abuse it.

PS -- When was the "Terry" case, and where can more info regarding it be found?

In addition to the wikipedia article already mentioned, you can read it on findlaw and in almost any law enforcement testbook from your local library.

Kevin,

There is a lot of confusion on this. Part of it is dependent on what state you are in. In Texas, traffic offenses are crimes. In California, they are civil infractions. You cannot be arrested for a civil infraction. The US government would have its own opinion anyway, and that might be based on how the feds see traffic and not a specific state. The feds do write some tickets and they go to the federal Magistrate system instead of to courts with real judges (I bet the Magistrates would hate my calling them not real judges "lol: ).

It is really more of a minor academic interest and fine point in how the laws get applied. In 99.999% of the cases, you can honestly answer no and no one would argue with you.

sjfcontrol wrote:So, then when asked if you've ever been arrested, people should respond 'yes' if they've ever received a traffic ticket? Many job applicants would never get beyond that point. Seems getting arrested is a LOT easier than I thought!

Yes, if you have received a traffic ticket, you have been arrested. This is true for Texas where traffic violations are class C misdemeanors. In some states, violations are not considered crimes, just civil infractions. that would make a significant difference.

But most applications now ask for convictions instead of arrests. They also specifically exclude minor traffic violations and the like. If you come across one that doesn't say yes and explain it in the details. It would make one heck of a court case when they turn you down.

sjfcontrol wrote:Hmmm, In a 'normal' traffic stop, like for issuing a speeding ticket, is that an arrest? I thought you were considered "detained", as you were not allowed to leave (if you do, expect to see an aerial view of your moving vehicle on the Fox News channel), yet you were not under arrest.

This is a common misconception. Until the Terry case, there was no such thing as an investigative detention. If the police interfered with your freedom of movement, you were arrested. This required probable cause, of course, which is why the stop in Terry was questioned. There was insufficient probable cause and the suspect's lawyers knew it. Cops had been doing it for years and this time they got caught. The cop made a stop based on his training, experience, and instincts. He was right and SCOTUS did not want the BG to go free, so even though he had broken the law the SCOTUS came up with this concept of just being detained.

The court case that clarified it for Texas was a DWI case out of Plano. The cop was in the wrong city when he made the stop. The defendant argued it based on the jurisdiction issue. The Court of Criminal Appeals had to examine if the law on where a cop could make an arrest applied. They specifically said that a traffic stop was an arrest since the Transportation Code only gives authority for arrests and not for detentions. They even admitted that the officer could unarrest by letting the guy go with a warning.

So, while it really was a jurisdiction case, it clarified that a traffic stop for a violation of the Transportation Code was an arrest. I have not seen any of the court cases on the unintended consequences (like requiring PC for the stop or a Miranda warning when the cop asks if the driver knows why he was stopped) but I expect to one day soon.

If you're arrested, don't they have to tell you "you're under arrest", and Mirandize you?

A person is under arrest when the officer makes it known that he is trying to arrest the person and the person submits to the officer's authority. The making known of the arrest does not have to be oral, but can be signaled in other ways such as turning on red lights and siren or tackling a person who is running. But they are not under arrest until they actually submit - stop fighting or pull over.

And the rules for Miranda are a lot different from what most people think. I only have to advise you of your rights when I am going to ask you questions which could incriminate you AND you are in custody. I can ask anything I want while in your house and never give you your rights. If I ask you to come to the station and talk and let you know you are free to go, I can ask you anything I want. In either case, i would not need to advise you.

But, if you are arrested, as the case says, when I stop you, I would be legally obligated to advise you of your rights when i ask you if you have anything in the car I should know about. This is why the training is now for the officer to finish the traffic stop and give the person his ticket or warning before starting his investigation. At that point the person is free to go and no longer under arrest. Of course, as the SCOTUS recognized last year, the average person will not think he can leave a cop just because he got the ticket already. Just as a passenger would not feel free to leave, a driver will not feel free to leave.

I see a lot of drug cases being lost when a good lawyer realizes exactly how to get the evidence suppressed. The cops are generally violating peoples rights during road side stops.

Now, they COULD do that, put you in the back of the unit, then look up the law, and subsequently release you at the scene, I suppose.

Which is exactly what I think they should be dong. If the cop thinks you committed a crime, and has the cause for it, secure you. Verify all the facts before leaving the scene. If there is a violation, book him and if not, let him go again with apologies.

chabouk wrote:And he persisted in believing so, despite his sergeant's doubts. "It's in the Penal Code somewhere. I don't know where, but I can look it up."

Here's the thing about arresting someone on probable cause that a crime has been committed: unless you can lay your finger on the exact line of the law that has been violated, don't arrest someone. Unless there's some exigent circumstance that endangers the public, refer the matter to the DA.

While I am probably debating mere semantics, the correct answer is to arrest, but don't book the person. The arrest was made when the cop stopped the person from leaving the scene. If the cop had probable cause to believe a law was broken, then placing him under arrest, cuffing him, and placing him in the patrol car is the correct action. Then the cop should be digging out his penal code and checking the exact wording of the law to see if he has all of the elements met. If he is missing an element, or cannot articulate it properly, then the suspect should be released while still at the scene. This is known as "unarresting" the person.

Then the officer can take his time and do more investigating and file charges if needed.

The reason you do not want to not arrest is the potential danger in checking the law while the suspect is still walking around. For some unknown reason, a lot of criminals do not like it when the police arrest them and may decide to fight or escape if they know the officer is looking up the law to make the arrest. So, you secure the suspect instead. That make it an arrest at that point. Just because you arrested him is no reason to book him though. You can figure out other ways.

This is why all cops SHOULD be required to have the code books in their briefcase. I do not expect every cop to know every law. I do expect them to know where to find it and to be able to look it up.