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Arrested in Texas: Resisting Arrest, Evading Arrest, Detained Without Arrest

Once again, let’s all remind ourselves that the real world and what we watch on television are two very different things. Prosecutors don’t work crime scenes alongside the police officers, for instance. The attorneys are in court or in their offices, preparing for court. Maybe arrests would be different if they did.

Lots of wacky stuff goes on during the initial encounter between police officers and an individual. Lots of this stuff may not be appropriate or legal, and maybe the police officers realize it. Maybe they don’t. Theirs is a high pressure job.



Do You Know Your Rights When Police Want to Arrest You?

Here’s my point today: the person dealing with that police officer should understand what is going on — and what his or her rights are at that juncture. Things like:

  • Are they being questioned?
  • Are they being detained?
  • Are they being arrested?
  • Is the arrest proper?
  • Was there a warrant?
  • Was there a search?
  • Can they avoid being arrested?

Questioned by Police in Texas (Not Arrested. Yet.)

When you are approached by a police officer in Texas, you’re probably going to feel a little afraid. That’s human nature. Just don’t forget that there are lots of laws out there to protect you from this person abusing their power and authority.

For instance, when a police officer asks you questions, that’s their right. Maybe their job. But you have a legal right not to answer them. You have a right to remain silent. This may make them push harder and think you have something to hide … but you have the right to say nothing. That may be best in the circumstances.

If you decide to talk with the police officer, okay. Just remember, he’s not there to make friends. Anything you say can be used against you later. If you talk, be succinct.

Once you start answering his questions, there’s no law that says you’ve opened a Pandora’s Box. You can change your mind. You can stop talking anytime you want. When you stop, the law states that the police officer has to stop asking questions. Now, will this fuel his decision to arrest you? Maybe. But stopping the questioning still may be best in the circumstances.

Before you answer any question from a police officer, you have the right to have a lawyer at your side. This is part of the “Miranda Warning” (see the blue Miranda Card provided here) and it’s a constitutional right. If you can’t afford a lawyer, then you can have one at no charge. These are court-appointed attorneys, whose fees are paid by tax dollars.

Detained by Police in Texas

Detained doesn’t mean arrested. If a police officer is suspicious, then he may stop someone and ask their name. To identify themselves. He may ask them to explain what they’re doing, and why they are in this place.

If the police officer has a REASONABLE suspicion that you are armed with a weapon, then he or she can pat you down to find out. This must be a limited pat down, just your outer clothing. No going into your pockets or taking your shoes off.

The police officer can detain you to ask you questions – but they have to be related to what he is investigating at the time.

After detaining you, the police officer can arrest you or release you. If you exercise your right to keep silent, then he may be inclined to arrest you. But maybe that’s better than your talking to him under the circumstances ….

Arrested in Texas: Arrest With or Without a Warrant

You can be arrested based upon an “arrest warrant” or without a warrant. If you are suspected of committing a crime, then an arrest warrant may be issued for you. If the police officer sees you, then he can arrest you based upon the arrest warrant. The law requires that you see the warrant as soon as possible after being arrested. The law also requires that the charges in that warrant be explained to you: what’s the basis for that arrest warrant?

A police officer can arrest you without a warrant, of course. But that’s far from an unlimited power. In Texas, a police officer can arrest an individual if he sees the person commit a crime. He can arrest someone if a credible source tells the officer that they’ve just committed a serious crime and if an immediate arrest isn’t made, the culprit will get away. Serious crimes here are big felonies: things like rape, murder, armed robbery, dealing heroin, etc.

Proper Arrest

There are laws in place for how arrests are to be done. Arrest procedures include (1) reading your Miranda rights (see the blue Miranda card); (2) taking you to the local police station or jail; and (3) giving you the chance to call your lawyer. In Texas, arrest procedures should also involve the police telling you what criminal charges you’re facing — the basis for your arrest under the criminal code. That shouldn’t be a secret.

Line ups? Arrests may involve you being in a line-up. Samples of your hair may be taken. Blood, too. Fingerprints, natch. They may want to record your speaking voice, or get a handwriting sample, too. Your mugshot will be taken.

The arrest process involves not just taking away your freedom, but continues as the police gather facts to use in their investigation, as evidence against you.

Search with the Arrest

When you’re arrested at home or in your car, the police may take that opportunity to search the area, too. Now, they can’t go into a full search of everything based upon your arrest. They need to go to a judge for a search warrant to do that full scale search.

However, an arrest does allow the police officer to a limited search of the area right around you at the time of your arrest. It’s a limited search.

An arrest in your home? Then the police officers can also go look in all the rooms for accomplices to the crime (if any are suspected to exist).

Car? They can do the same sort of thing, looking for weapons that might be used against them. You do not have to consent to a search of your vehicle.

Key here: what they can see as they do this limited search. Remember that children’s game, “I spy with my little eye”? Well, police officers are going to be looking around in this limited search in the same way. Why? Under the law, if they see any evidence of a crime in “plain view” then they can take it. Seizure of contraband under the plain view doctrine does not require a search warrant.

Resisting Arrest and Evading Arrest

In the Texas Penal Code, “resisting arrest” (Texas Penal Code Section 38.03) and “evading arrest” (Texas Penal Code Section 38.04) are separate crimes. They are additional charges you want to avoid.

Resisting Arrest

Resisting arrest happens when someone tries to escape from police officers by fighting with them or threatening force to try and keep the police officers from completing their arrest (cuffs, etc.). Resisting arrest charges can also be brought against someone who struggles with officers as they are being placed in their jail cell, or into the squad car.

Showing a fake ID to try and avoid arrest? That can be the basis of a “resisting arrest” charge.

It’s a misdemeanor charge that’s added to the other charges made the basis of the arrest. (If a deadly weapon is involved, it becomes a felony charge.)

Evading Arrest

Evading arrest is when someone is trying to escape the police. You’re running. Someone is running from the law because they’re afraid. Maybe confused about what was happening. If they drive, then “evading arrest in a motor vehicle” can be charged.

Drive off? That’s a crime that comes with a possible one year stint in jail — and if someone is hurt during the drive (think high speed chase), then the driver may face up to 10 years in jail. Maybe more if this isn’t the first time he’s tried to evade arrest.

Arrested in Texas: Criminal Lawyer Earlier the Better

In Texas, the earlier the better for criminal defense representation. From a defense standpoint, having legal defense at work when the police are merely suspicious of you works best to protect the law and insure that police arrest procedures are properly followed. Defense lawyer present at the first question from a police officer? Best protection.

Having a defense attorney as soon as possible during the arrest process?  Better than trying to go it alone and depend upon law enforcement to know, and to do, the right thing.

Sorry, that’s the real world. The reason that so many Motions to Suppress are successful is because of failures of law enforcement during the arrest process.

For more information, check our our web resources as well as Michael Lowe’s Case Results and his article:


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