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?
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.
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.
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
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.
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 arrest
warrants
•
•
•
•
4th Amendment
Texas Article 1, section 9
Art 1.06 CCP
Art 15.01
Authority to issue arrest
warrants
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; and
3. 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
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 clerk
shall make a copy of the affidavit
available for public inspection in the
clerk's office during normal business
hours.
(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
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.
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.
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
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?
Purpose
Bond Forfeiture or
Surrender of Principal
“Arrest Warrant” by Magistrate
−
−
After Judgment and Sentence
“Chapter 23 Capias” by Trial Court
Article 15 and 17.19
“Arrest Warrant” upon oath
affirmation & determination
probable cause by Magistrate
To Procure Custody
After Formal Charging but
Prior to Judgment
Prior to Formal Charging
of
of
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
“Capias Pro Fine” by Trial Court
 General Provisions
To Enforce Judgment for
Unpaid Fines and/or Costs
−
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
−
Magistrate Duties also:
Article 43.03
Cite
Issue 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…
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 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? CHRONOLOGICALLY DISTINGUISHING THE
WARRANT, CAPIAS, AND CAPIAS PRO FINE IN THE TEXAS CODE OF CRIMINAL PROCEDURE
Purpose
Prior to Formal Charging
“Arrest Warrant” by Magistrate
Bond Forfeiture or
Surrender of Principal
− Article 17.19
To Procure Custody
To Enforce Judgment
for Unpaid Fines
and/or Costs
© TMCEC (2007)
“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
After Formal Charging but
Prior to Judgment
After Judgment and Sentence
“Chapter 23 Capias” by Trial Court
“Chapter 23 Capias” by Trial Court “Chapter 43 Capias” by Trial Court
− Specific Provision:
− Article 43.015(1)
Article 45.014 “Arrest
− Article 43.04
Warrant” by Municipal
Court or Justice Court
“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
Version 5 - 8/09