Arrest and Booking Question

[weplumcrazy]

What is the name of your state? TEXAS

A judge signs a search warrant in which the AFFIANT has included a request for the arrest of 3 individuals threafter named in the warrant for three misdemeanor offenses.

1. At the time the warrant is executed, can the arresting officers change the charge from misdemeanor to felony? In this case the officers charged and booked the individuals for 1 felony (Organized Criminal Activity) and only one of the misdemeanors even though no felony charge was stated in the search warrant and no new evidence of any additional crimes was found at the time of the search.

2 Does the warrant have to be titled Search and Arrest Warrant or can a Search warrant cover both the search and arrest?

Thank you for any help on these questions.

 

[BelizeBreeze]

What did your professor tell you?

 

[seniorjudge]

Q: At the time the warrant is executed, can the arresting officers change the charge from misdemeanor to felony?

A: It is up to the prosecutor to decide who gets charged with what.


Q: Does the warrant have to be titled Search and Arrest Warrant or can a Search warrant cover both the search and arrest?

A: They are two different documents.

 

[weplumcrazy]

To BelizeBreeze:

I am not a law student, therefore my professor told me nothing.

SeniorJudge:

So the charges recorded at booking may not be the charges at court time? Surely the officers didn't phone the prosecutor while at the scene at 10:00 p.m. and ask him/her about changing the charges? If not, then who had the authority to vary from the misdemeanor charges listed on the warrant signed by the judge?

The document left behind by the arresting officers was a SINGLE document titled Search Warrant but it also named the individuals who were to be arrested. Based on your answer then there should have been two separate documents, one Search Warrant and one Arrest Warrant?

 

[seniorjudge]

Q: So the charges recorded at booking may not be the charges at court time?

A: Correct.


Q: Surely the officers didn't phone the prosecutor while at the scene at 10:00 p.m. and ask him/her about changing the charges?

A: There are no charges on a search warrant.


Q: If not, then who had the authority to vary from the misdemeanor charges listed on the warrant signed by the judge?

A: You are very confused.


Q: Based on your answer then there should have been two separate documents, one Search Warrant and one Arrest Warrant?

A: No. The cops search. They return the warrant and give a report to the prosecutor and the prosecutor decides what charges to file.

 

[weplumcrazy]

SeniorJudge,

There were 5 people handcuffed and arrested at the time the cops came in with the search warrant. The cops read them their rights and told them they were being arrested for 1 felony offense and 1 misdemeanor offense. They were taken to night court where the night court judge told them they had been charged with 1 felony and 1 misdemeanor and then gave them a paper stating amount of bail. Three of the 5 were listed in the Search Warrant. There was no document titled Arrest Warrant. Only misdemeanor offenses were listed in the document titled Search Warrant. I want to know can you arrest someone and book them for a felony, followed by them having to post bond for a felony, if only misdemeanor offenses are named in the warrant?

You are making this difficult when I know you know what I am asking.

weplumcrazy

 

[Gevalia]

You are making this difficult when I know you know what I am asking.

So, you're comfortable with being snotty to the only person that's trying to help you?

 

[weplumcrazy]

Gevalia:

I have never been comfortable being snotty to anyone. It is not my nature.

I was merely trying to clarify my question and express my frustration at the technicalities on my quest to further my knowledge about the law.

SeniorJudge has answered my questions on several occasions and I have thanked him each time as I sincerely appreciate him taking the time to do so.

Not that I have to explain anything to you, but as you butted in and inferred something that was completely off base I wanted to assure SeniorJudge, not you, that nothing of the kind was intended.

 

[CdwJava]

There should be a booking or charging sheet for each of the subjects arrested. If they were arrested based upon an arrest warrant, that information would be on the sheet. If they were arrested on fresh charges (as a result of the warrant or for which they had established probable cause) the sheet would reflect these new charges and not a warrant number.

Texas also has a thing called a Pocket warrant". From a TX DA association's site:

Is there any way to 'seal' a complaint while the suspects are at large?
Once the complaint is filed, it is an open record, and there is no way to keep it from going public. But, before the complaint is filed, you could use a "pocket warrant" pursuant to CCP art. 15.03(a)(2), where an arrest warrant can issue "when any person shall make oath before the magistrate that another has committed some offense against the laws of the State." It does not require that the person also request that the magistrate file a formal criminal charge. Thus, the arrest can take place before the suspects are aware that they are wanted for the crime, and the complaint can be filed after they are taken into custody.

It may well be that the officers sought a pocket warrant from the DA and not from the judge.

In any event, the place to contest the issue will be in court. The arrested parties should retain counsel.

- Carl

 

[Kane]

In Texas, a search warrant may also order the arrest of the accused.

Art. 18.03. [313, 314] [364, 365] [352, 353] SEARCH WARRANT
MAY ORDER ARREST. If the facts presented to the magistrate under
Article 18.02 of this chapter also establish the existence of
probable cause that a person has committed some offense under the
laws of this state, the search warrant may, in addition, order the
arrest of such person.

http://tlo2.tlc.state.tx.us/statutes/cr.toc.htm

Crazy, you're making the mistake I think of assuming if any mistakes were made anywhere in the process, that means the defendant goes free. That's not the case.

While there are some mistakes that might result in an eventual dismissal, or suppression of evidence, or whatever, whether a particular offense is labelled a misdemeanor or a felony is probably not one of them.

Also, there are a number of exceptions to the warrant requirement in the TCCP. One of them is that officers don't need a warrant if an offense is committed in the presence or in their view.

In other words, if they have a search warrant, and they see other crimes are being committed, they're free to arrest people for those crimes as well.

 

[weplumcrazy]

To Carl and Kane,

Thank you for taking the time to answer the questions. That makes everything more clear as to the events that have transpired.

Kane, I do feel that the people in law enforcement need to be held accountable for following the proper rules of procedure as we as citizens are held accountable for following the rules (laws) that have been established for us. In this case, as it involves a family member resulting in direct effect on me financially, I am just trying to get a clear understanding of what is happening and why, and yes, if it was done properly.

weplumcrazy

 

[garrula lingua]

Crazy, the Prosecutor can add or change charges all the way up to trial.

As long as the Prosecutor can prove the elements of the crime, it can be added (by the Prosecutor, who decides the charges).

Carl, Texas law seems pretty unique in many ways (great state for cops & Prosecutors).
It seems a warrant can be sworn out in front of a magistrate without going through the Prosecutor.

 

[CdwJava]

Carl, Texas law seems pretty unique in many ways (great state for cops & Prosecutors).
It seems a warrant can be sworn out in front of a magistrate without going through the Prosecutor.

Yeah. There are some states where an average citizen can do the same thing! It seems so ... foreign to us here in CA.

- Carl