What is Probable Cause for Police to Arrest in Texas?

Constitutional protections demand that probable cause exist before there can be a valid arrest.

Probable cause is a term originating in our federal constitution which has been adopted in the Texas constitution.  It is a tough, longstanding constitutional safeguard guaranteed by both our state and federal Bill of Rights.

Specifically, both constitutions decree no member of law enforcement (state or federal, city or county) can arrest someone without having “probable cause” to do so.

1. The Founding Fathers established “probable cause” as a protective boundary before any law enforcement officer can exercise police powers in the Fourth Amendment of the U.S. Constitution, which provides (emphasis added):

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.

2. Similarly, Article 1, Section 9 of the Texas Constitution provides that (emphasis added):

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.

This means that in Texas, any law enforcement agent, deputy sheriff, or police officer must have a legal basis defined as “probable cause” before he or she can (1) arrest anyone, or conduct any kind of (2) search or (3) seizure.

However, neither constitution defines exactly what “probable cause” means. There is no federal law or state statute that gives a precise definition of the concept.  The result?  The absence of a specific definition of the term “probable cause” has led to countless injustices.

Police can – and do – arrest people without having any legal right to do so.  Wrongful arrests, where police arrest someone without having probable cause to do so, happen all the time here in Texas.

How It Begins: Police Stop Someone in Detention before the Arrest

An arrest cannot happen until there is some kind of interaction between the police officer and the individual.  This begins when the person is “detained” by the officer so the officer can investigate and ask questions.  A common example here is when someone’s car is pulled over by law enforcement in a “traffic stop.”

For more on traffic stops, see:

• 4 Shocking Texas Traffic Stops: Current Texas Law For Arrest After Pulled Over By Police (which includes the Sandra Bland dashcam video); and
• Texas Police Officer Arrests 77 Year Old Grandma After Traffic Stop: You Be The Judge – It’s All On Caught On Police Cam.

Detention is allowed.  The police can stop you to chat.  It is legal and it is not an arrest.  However, there are limitations here.

1. First, detentions cannot take very long. Stops by police must not take much time.  They are required to be brief, with the officer having a bit of time to question the person about the chance that a crime has occurred or is about to happen.  Time is ticking from the minute that the police officer signals that he or she wants to detain someone in some way.
2. Secondly, detentions cannot happen just because the officer wants to stop someone. A “hunch” is not enough for the officer to interfere with someone’s freedom no matter how briefly.  There has to be a justifiable reason to detain someone.

How is this determined under the law?  In any detention, the officer must have a “reasonable suspicion” to detain the individual. Explains the Fifth Circuit:

“For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred.” United States v. Spears, 636 F. App’x 893, 898 (5th Cir. 2016); see also Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).

What is Reasonable Suspicion to Stop or Detain Someone?

Under Texas law, “reasonable suspicion” has been defined by the courts.  It is a lawful temporary detention or “stop” only if the police officer has a reasonable suspicion to believe that an individual is violating the law and committing a crime.  Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002).

Reasonable suspicion exists if:

(1) the officer has specific, articulable facts that,

(2) when combined with rational inferences from those facts,

(3) would lead him to reasonably conclude that

(4) a particular person actually is, has been, or soon will be engaged in criminal activity.

Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001).

Whether or not this test has been met by the police officer will not happen at the time of the stop itself.  The officer’s actions will be subject to review by the judge at the request of the defense.

The court will review what has occurred in this initial stop and grade the police officer on whether or not the decision to detain the individual was reasonable in light of all the circumstances.  Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).

It is an objective standard that disregards any subjective intent of the officer making the stop.  The court looks solely to whether an objective basis for the stop exists. Garcia v. State, 43 S.W.3d at 530.

Key here is that the individual who has been victimized by an illegal detention because the officer did not have a reasonable suspicion to stop them may still have been arrested and charged with a crime before this violation of his or her rights can be rectified.

Probable Cause and Arrests: Without a Warrant

Following a valid traffic stop or detention, the officer may be able to arrest that individual immediately and without an arrest warrant.  To do so, he or she must first have probable cause for a warrantless arrest.

Probable cause for a warrantless arrest exists if “the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense.” Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

The test for probable cause for a warrantless arrest is an objective one.  The decision to arrest the individual will be reviewed by the courts with a consideration of the totality of the circumstances facing the arresting officer at the exact time of the arrest. Id. He cannot fill in gaps later on to bolster his reasons for making the arrest.

The ability of a police officer to arrest someone on the spot, without an arrest warrant, is limited.  According to the Texas Court of Criminal Appeals, a police officer may arrest an individual without a warrant only if:

(1) probable cause exists with respect to the individual in question; and

(2) the arrest falls within one of the exceptions set out in the Texas Code of Criminal Procedure.

Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005); State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

Arrest without a Warrant: TCCP 14.03 Exceptions

The Texas Legislature has passed a law that curtails the ability of an individual law enforcement officer in Texas to arrest someone without first getting an arrest warrant.  Pursuant to Article 14.03 of the Texas Code of Criminal Procedure, a peace officer need not have an arrest warrant before arresting someone in certain situations.  The statute states (emphasis added):

(a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws;

(2) persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person;

(3) persons who the peace officer has probable cause to believe have committed an offense defined by Section 25.07, Penal Code, if the offense is not committed in the presence of the peace officer;

(4) persons who the peace officer has probable cause to believe have committed an offense involving family violence;

(5) persons who the peace officer has probable cause to believe have prevented or interfered with an individual’s ability to place a telephone call in an emergency, as defined by Section 42.062(d), Penal Code, if the offense is not committed in the presence of the peace officer; or

(6) a person who makes a statement to the peace officer that would be admissible against the person under Article 38.21 and establishes probable cause to believe that the person has committed a felony.

(b) A peace officer shall arrest, without a warrant, a person the peace officer has probable cause to believe has committed an offense under Section 25.07, Penal Code, if the offense is committed in the presence of the peace officer.

Probable Cause and Arrests: With a Warrant

Unless these exceptions apply, the police officer must obtain an arrest warrant from a judge before a person can be arrested in Texas.

Here, the police officer provides the judge with an affidavit that explains what leads him or her to think that the person has committed a crime.  The affidavit must establish “probable cause” to the judge.

Getting the arrest warrant helps to protect the individual’s constitutional rights.  A zealous law enforcement agent or an incompetent or inexperienced deputy sheriff may truly believe that he or she has enough facts in hand to meet the probable cause requirement.  A judge may not agree.

If the judge does not agree that there is probable cause established in the affidavit, then no arrest warrant will issue.  The judge will not sign an arrest warrant that he does not think meets the constitutional standards for probable cause to arrest.

Of course, that judge may not be right.  There are a shocking number of cases that have been reversed on appeal because the reviewing courts have held that there was no probable cause to support an arrest warrant.

That affidavit supporting the request for an arrest warrant need not be provided by the officer, as well. An example can be found in the 2017 case of State v. Elrod.  Here, the issue of whether or not there was probable cause to support an arrest warrant went all the way to the highest criminal court in Texas.  There, in a unanimous opinion, the Court found that there was probable cause for the arrest based upon an informer’s affidavit.

It was held there was an “extensive and detailed statement given by the named informant” who was a “witness to the ongoing criminal activity” which the CCA held “showed that she had personal and direct knowledge of the matters she asserted … and a reasonably trustworthy source.” The lower court, who issued the arrest warrant, was held to have been correct in holding that the informant’s affidavit established probable cause for the arrest of Mr. Elrod.  State v. Elrod, 538 S.W. 3d 551 (Tex. Crim. App. 2017).

Probable Cause, Guilt, and Innocence

Another important distinction must be made at this point regarding “probable cause” to arrest someone.  Even if the courts determine that there was a valid basis for the arrest warrant (or warrantless arrest) because probable cause was legally shown, it does not mean that the person is guilty.

Probable cause to arrest does not establish guilt or innocence.  Plenty of innocent people have been arrested in Texas.

Defending Against Arrests: Lack of Probable Cause Arguments

The fluidity of the “probable cause” concept allows police officers and warrant-issuing judges lots of leeway in order to apply legal standards to all sorts of factual situations.  This, combined with the lack of any clear statutory or constitutional definitions of the phrase “probable cause” and the tendency of law enforcement to arrest (rather than not) means there is a huge likelihood of error when arrests are made.

Finding law enforcement fishing expeditions couched behind “probable cause” descriptions can happen.  Stops based not upon reasonable suspicion, but instead racism or other unacceptable reasons, occur all too often.

Wrongful arrests may not be able to be prevented, but getting an experienced criminal defense lawyer advocating on your behalf as soon as possible can limit the harm.

In my next article, I will discuss defending against errors in “probable cause” arrests and how these arguments can work to suppress any evidence that has been mounted against you in an examining trial.  In some situations, the entire case may be dismissed because of the failure of law enforcement to respect and adhere to the constitutional requirement of “probable cause.”

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For more information, check out our web resources and Michael Lowe’s Case Results, read his in-depth article, ”Resisting Arrest vs Excessive Force: Lessons from Fort Worth Police Bodycam,” and watch his YouTube video, How To Avoid Trouble When Pulled Over By State Troopers: