506 – Arrest Procedures

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Policy

When making arrests, Harris County Sheriff’s Office (HCSO) deputies shall strictly observe the rules of arrest as established in the Texas Code of Criminal Procedure, applicable court decisions, and federal laws. Deputies shall be aware of and comply with any changes in the law or requirements mandated by court decisions.

Procedure – Detaining Suspects

The right to detain a person occurs when a deputy has reasonable suspicion to believe that a person has either committed some offense or is about to. The suspicions must be based on observations made by the deputy coupled with his or her experience.

If reasonable suspicion is established, a stop and temporary detention is permitted. However, a “Terry Stop” does not automatically give the deputy the right to pat down a person or suspect for weapons (Terry v. Ohio). A pat down search requires the deputy to be able to articulate:

  1. The basis of his or her “reasonable suspicion” that allowed him or her to detain the person temporarily and
  2. What it was that made him or her think the person was armed (e.g., a bulge under the clothing or furtive movements by the suspect).

Example: A carload of gang members who are in a rival gang’s neighborhood would usually suggest to a patrol deputy that those subjects may be preparing to do a drive-by shooting. Based on this knowledge and previous experience, the deputy could stop the car and frisk the occupants and the car for weapons.

Procedure – Identifying Persons Detained or Arrested

A field interview may be performed to obtain the identity of a person if the deputy has reasonable suspicion that he or she may have committed, may be committing, or is about to commit a crime.

The deputy may stop and question a person if he or she believes:

  1. The person is in a place under suspicious circumstances,
  2. The person may be a danger to him- or herself or others, or
  3. The interview may lead to the prevention of a crime or lead to probable cause for an arrest.

A deputy may inquire into the immigration status of a person under lawful detention or under arrest. In such cases, as with all detainments or arrests, the deputy must document his or her justification for the initial stop by completing either a field interview form or an incident report.

All field interviews or detainments shall be documented by an incident report regardless of whether or not any in-car video or body camera was utilized during the contact. If the employee is “off duty” or working approved extra employment, he or she shall complete either a field interview form or an incident report upon his or her return to duty, prior to the end of his or her next regular shift.

Deputies shall properly identify the person to be arrested as the one for whom a warrant has been issued or probable cause established by physical description or any other identification information.

A fingerprint check shall be made if establishing a person’s identity is necessary before he or she is booked into jail on a warrant.

In cases where identification is inconclusive, the person shall be photographed, and an incident report documenting the suspect’s physical description, address, vehicle information, and circumstances involved shall be completed. A copy of the report shall be forwarded to the Criminal Warrants Division.

If the deputy has reasonable belief that a person is wanted by warrant but does not have a camera immediately available, the person may be detained for a reasonable period of time for another deputy to go to the scene with a camera to photograph the subject.

Procedure – Elements of Arrest

Texas Code of Criminal Procedure, Article 15.22, states: “A person is arrested when he or she has been actually placed under restraint or taken into custody by a deputy or person executing a warrant of arrest, or by a deputy or person arresting without a warrant.”

The following elements are normally required to effect a lawful arrest:

  1. Intent,
  2. Authority,
  3. Seize and detain, and
  4. Understanding of the person being arrested.

There are two basic types of arrest:

  1. Arrest with warrant
  2. Arrest without a warrant based on probable cause or order of a magistrate.

Arrest process

  1. Advise the arrested person of the reason for arrest (if practical),
  2. Handcuff the person being arrested (double-locked handcuffs) behind the person’s back,
  3. “Frisk” the arrested person for weapons immediately following the handcuffing procedure,
  4. Conduct a thorough search of the arrested person for weapons or contraband as soon as reasonable after arrest and always prior to being transported.

Both the prisoner and the transport vehicle should be searched again upon reaching the jail or holding facility. Personal property shall be removed from the arrestee and documented on the appropriate booking forms by the arresting deputy during the intake process. [CALEA Standards 70.1.1 and 70.1.2]

Escort the arrested person to a vehicle for transport or to another secure location as soon as possible. All suspects shall have their hands cuffed behind their back and will be secured in the back seat with a seatbelt before being transported.

Transport vehicles shall be searched for contraband prior to and immediately after transporting all prisoners.

All persons arrested shall be fingerprinted and photographed on the Automated Fingerprint Identification System (AFIS), and a booking sheet shall be completed. [CALEA Standards 1.2.5 b and c]

Except when arrest is made on an outstanding warrant, the deputy shall complete the necessary incident report and Harris County District Attorney’s Office Intake forms. [CALEA Standard 1.2.5 a]

Procedure – Arrest With a Warrant

The duties to arrest, definitions, requisites, issuance, scope, authority, and execution of arrest warrants are outlined in Texas Code of Criminal Procedure, Chapter 15. [CALEA Standards 74.3.1 and 74.3.2]

Every peace officer has the duty to execute an arrest warrant whenever it is within his or her power to do so.

All warrants served or executed by HCSO personnel will be verified through the Criminal Warrants Division prior to being executed.

There is no requirement for a peace officer to have actual possession of the arrest warrant when serving or executing it. However, the peace officer shall advise the person being arrested that the arrest is made pursuant to a warrant, and:

  1. If the peace officer has the arrest warrant in his or her possession, it will be exhibited to the arrestee, or
  2. If the peace officer does not have the arrest warrant, he or she will inform the arrestee of the offense charged.

A peace officer may serve an arrest warrant issued by any court within the State of Texas provided:

  1. The place is a public place,
  2. The peace officer is in a place he or she has a lawful right to be,
  3. The place is the residence of the person named in the warrant, or
  4. The place is a private place or residence named in a search warrant provided the peace officer has the search warrant in his or her possession.

If the warrant is issued by a mayor of an incorporated city or town in a county other than Harris County, the warrant must be properly endorsed, according to Texas Code of Criminal Procedure Chapter 15, Article 15.07.

A peace officer may serve an arrest warrant issued by a court outside the State of Texas provided:

  1. The warrant is confirmed as being valid and outstanding by the issuing jurisdiction and
  2. The issuing jurisdiction confirms it will initiate extradition proceedings.

Planned execution of arrest warrants

  1. An arrest warrant may be served at any time, day or night.
  2. An arrest warrant may be served at any place, public or private, where the subject named is reasonably believed to be located.

Peace officers need not execute a warrant at the first possible opportunity but may choose the time and place. Factors to be considered in determining the time and place include:

  1. If the location is a third party residence absent exigent circumstances or consent, a search warrant is obtained and possessed before entering the premises;
  2. Knowledge of the subject’s whereabouts and likely movements; or
  3. Consideration of safety and security of the arrestee, deputies, and third persons.

Personnel involved in a preplanned execution of a “high-risk” arrest warrant will wear protective ballistic vests. Uniformed personnel will be present. [CALEA Standards 41.3.5 & 41.3.6]

When entering a private premise, deputies shall announce their identity and purpose and demand admittance. When exigent circumstances exist that unduly jeopardize the safety of the deputies, other persons, or the security of the person sought, deputies need not announce their identity or purpose before entering to execute a felony warrant.

If refused entry after demanding admittance, or when exigent circumstances exist, deputies may forcibly enter the premises to execute a felony warrant.

Forced entry is not permitted in the execution of a misdemeanor warrant.

If probable cause is established that a suspect wanted on a misdemeanor warrant is located inside a private dwelling and such wanted person refuses to come out, a search warrant may be obtained for that person as stated in Texas Code of Criminal Procedure, Article 18.02 (11).

All incidents of forced entry will be documented in an incident report.

Procedure – Arrest Without a Warrant

The authority to arrest without a warrant is entirely statutory. A peace officer’s good faith does not justify an invalid warrantless arrest. Any deputy who acts outside his or her authority in making a warrantless arrest may be subject to both civil and criminal liability. [CALEA Standard 74.3.1]

A deputy may make a warrantless arrest only if he or she has enough personal knowledge or reliable information to constitute probable cause upon which an arrest warrant could be issued if time is permitted.

Warrantless Arrest Authorities:

  1. Alcoholic Beverage Code, Chapter 101, Article 101.02, any violation
  2. Code of Criminal Procedure:
    • Chapter 8, Article 8.04, “Dispersing Riot”
    • Chapter 14
    • Article 14.01, “Offense Within View”
    • Article 14.02, “Within View of Magistrate”
    • Article 14.03 (a)(1), “Suspicious Places and Circumstances”
    • Article 14.03 (a)(2), “Assault – Bodily Injury”
    • Article 14.03 (a)(3), “Violation of Protective Order”
    • Article 14.03 (a)(4), “Family Violence – Bodily Injury”
    • Article 14.03 (b), “Violation of Protective Order”
    • Article 14.04, “Fleeing Felon”
    • Chapter 18, Article 18.16, “Preventing Consequences of Theft”
    • Chapter 51, Article 51.13, “Uniform Criminal Extradition Act”
  3. Health and Safety Code, Chapter 462, Section 462.041, “Chemically Dependent Person”
  4. Parks and Wildlife Code, Chapter 11, Article 11.0191, any violation
  5. Transportation Code, Chapter 53, Section 543.001, any violation

Rights of Peace Officers

Where an arrest may be lawfully made without a warrant, a deputy making an arrest is justified in adopting all measures which he or she might adopt in cases of an arrest under a warrant except that the deputy making the arrest without a warrant may not enter a residence to arrest unless:

  1. A person who resides in the residence consents to entry or
  2. Exigent circumstances require that the deputy making the arrest enter the residence without the consent of the resident or without a warrant.

Discretion

Under certain circumstances, for good cause consistent with public interest, a deputy may decide not to arrest a person even though probable cause exists. [CALEA Standards 1.2.6, 1.2.7, 74.3.1]

This section does not apply to certain incidents of family violence or violations of a protective order which require specific actions to be taken by a peace officer.

Factors that the deputy may properly consider in determining not to arrest are:

The victim must positively state that he or she is not interested in prosecuting the offender because:

  1. He or she desires restitution only,
  2. He or she is or has been involved in a continuing relationship with the offender (employer or employee),
  3. He or she is in a family-type relationship with the offender,
  4. The actual injury done to persons or damage done to property is minimal, or
  5. The arrest would result in greater harm to the victim than would non-arrest.

A supervisor shall be notified immediately in all cases involving a felony.

The deputy will complete an incident report documenting the circumstances. [CALEA Standard 1.2.5 a]

When a Class C misdemeanor has been committed and probable cause exists to believe the person to be arrested has committed the offense, a deputy may issue a citation and release the person on his or her own recognizance. Factors to be considered are:

  1. Positive identification is provided through acceptable documents such as a driver’s license, military identification, etc.,
  2. The person is a Texas resident (preferably Harris County),
  3. The person must provide a physical address, not a Post Office box,
  4. The person must have no outstanding warrants,
  5. The person has the physical and mental condition of a responsible person, and
  6. The person has a medical problem or condition that requires attention or treatment.

Each circumstance or incident is different, and any appropriate discretionary action to be considered should be evaluated on a case-by-case basis. A supervisor shall be contacted any time there is a question on what appropriate action should be taken.

A citation shall not be issued for domestic violence or the offense of public intoxication.

Immunity From Arrest

Certain foreign diplomatic and consular representatives are immune from arrest under certain conditions. All persons entitled to privileges of immunity are issued identification cards from the U.S. Department of State, Office of Protocol, or by the U.S. Mission to the United Nations. The identification card will contain a photograph of the bearer and identifying information on the front along with the U.S. Department of State seal. The card’s reverse side will contain a brief statement of the bearer’s criminal immunity status. [CALEA Standard 74.3.1]

Diplomatic Agents: Ambassadors and foreign ministers, their families, and certain servants and staff are immune from arrest for any offense. Questions arising as to whether a person is entitled to this immunity may be directed to the U.S. State Department, Houston Office, at 713-209-3482, or the U.S. State Department 24-hour line at 202-647-7277.

Stopping a diplomatic agent and issuing a traffic citation does not constitute an arrest and is permissible, although the diplomatic agent may not be compelled to sign the citation.

Property may not be searched or seized. Vehicles may not be impounded but may be towed the distance necessary to remove them from obstructing traffic or endangering public safety.

In serious cases such as DWI, personal injury, or crashes, notification by telephone to the U.S. Department of State (202-647-7277) is recommended.

Standardized field sobriety tests may be offered and fully documented but may not be compelled.

Depending on the circumstances, the deputy may, with the person’s permission:

  1. Take the person to a location where he or she may sufficiently recover to drive,
  2. Summon or allow the person to summon a friend or relative to drive,
  3. Call a taxi for the person, or
  4. Provide transportation for the person.

The deputy shall complete an incident report documenting the facts of the incident and the person’s identity. The report shall be forwarded to the U.S. Department of State.

Copies of incident reports and citations should be forwarded to the U.S. State Department, Diplomatic Security Service, Protective Liaison Division at fax number 202-895-3613.

A supervisor shall be notified immediately.

Foreign consular officers are immune from arrest except in the case of a felony pursuant to an arrest warrant.

Honorary consular officers, consular employees, consular families, and servants are not immune from arrest. However, whenever practical, they shall be released on misdemeanor offenses pending the issuance of a complaint for an offense.

Stopping a consular official and issuing a traffic citation does not constitute an arrest and is permissible, although the consular official may not be compelled to sign the citation.

The vehicle may be towed and impounded.

The deputy shall complete an incident report documenting the facts of the incident and the person’s identity. The report shall be forwarded to the U.S. Department of State.

Copies of incident reports and citations should be forwarded to the U.S. State Department, Diplomatic Security Service, Protective Liaison Division at fax number 202-895-3613.

A supervisor shall be notified immediately.

State of Texas legislators and United States Congress members are immune from arrest except in cases of treason, felony, or breach of the peace while the legislature or congress is in session and when they are going to or returning from the legislative or congressional session.

Revision

This policy has been revised on the below listed dates:

April 21, 2009

August 21, 2017

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