Hon. WayneLefevre Opinion No. O-4929

County Auditor He: Under the facts submitted does a Clay County peace officer have the legal authority Henrietta, Texas to arrest and search aperson possessing liquor without awarrant of arrest? Dear Sir:
Your letter of October 9, 1942, requesting the opinion of this department onthe above stated question, reads in part as follows:

“Please answer the following question for me.

“If alaw enforcement officer suspects aperson to be in possession of alcoholic beverages in adry territory for purpose of sale and searches this person outside of his home and finds what hewas looking for. Is it necessary for this officer to have a search warrant to lawfully search and arrest this person? Taking into consideration that the suspected person has been convicted of the same charge many times in the past.”
Bsweunderstand your request, you desire our opinion onthe question, whether or not apeace officer can legally arrest and search aperson under the facts submitted without a warrant of arrest.

Generally speaking the laws of this State have expressly authorized peace officers to make arrests without warrants in agreat many cases. (Articles 212-217, Vernon’s Annotated Code of Criminal Procedure) Thus generally an arrest may bemadewhen an offense which is afelony or which is against the public peace is committed in the presence orwithin the view ofthe arresting party, or when it is shown by satisfactory proof to apeace officer, upon the representation of acredible person, that acertain party has committed afelony, and is about to escape. Other circumstances giving rise to authority to arrest without warrant are the verbal order of amagistrate before whomafelony or breach of the peace has been committed, or the existence of acity ordinance passed in conformity with State law and commanding search and arrest under prescribed conditions.Hon. WayneLefavre, page 2 (O-4929)

Under the Texas Liquor Control Act the possessing of liquor as defined in said act for the purpose of sale in adry area is only amisdemeanor offense. The possession of liquor for the purpose of sale in adry areas is not abreach of the peace within itself. For the purpose of this opinion weassume that no city ordinance is involved.

Wehave carefully considered Article 666-20 and Article 666-44, Vernon’s Annotated Penal Code, and have concluded that these statutes are not applicable to the question under consideration as the search of buildings, premises or vehicles of transportation is not mentioned in your inquiry.

In view of the foregoing you are respectfully advised that it is our opinion that the peace officer has no authority to arrest the person in question without alegal warrant of arrest.
In connection with the foregoing wewish to point out that it is a settled rule that no search warrant is essential in order to search the person of one lawfully under arrest for the purpose of finding and seizing dangerous weapons, the instruments or fruit 3of acrime, and such other things as maybe of use as evidence onthe trial. Even in cases where the law permits an arrestwithout warrant the right to search the person arrested follows as an incident to the arrest, and this naturally implies a search contemporaneous with the arrest. In the language of the United States Supreme Court (Agnello v. United States, 269U.S. 20) frequently quoted and approved by the Texas Court:
“The right without a search warrant contemporaneously to search persons lawfully arrested while cominitting crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruit or as the means bywhich it was committed, as well as weapons and other things to effect ah escaue from custody, is not to be doubted.” Trusting that the foregoing fully weare answers your inquiry,

“PROVEDOCT29, 1942 Yours very truly /s/ Gerald C.Mann

‘AT?ORNEY

GENERAL

OFTEXAS
APPROVED:OPINIONCOMMITTEE BY: BWB,CHAIRMAN AW: AMM:wb ATTORNEY GENERAL

OFTEXAS By/s/ Ardell Williams Ardell Williams, Assistant