July 16, 1987
ax XATTOX A-N&Y O&XERAI.

- Honorable Gary E. Kersey

Kerr CountyAttorney 317 Earl Garrett Kerrville,Texas 78028 OpinionNo. JM-751
lt.2: Constitutionalityof certainportions of article 14.03 of the Code of CriminalProcedure, regardingwarrantless arrests in certain misdemeanor cases involving familyviolence
Dear Mr. Kersey:
You inquire about the constitutionality under the Fourteenth Amendment of the United States Constitution of portions of article 14.03of the Texas Code of CriminalProcedure. Article 14.03provides as follows: .(a) Any peace officer may arrest, without

warrant:

. . . . (2) personswho thepeace officerhas probable cause to believe have committed an a~ssaultresulting inbodily injury to anotherperson and the peace officer has probable cause to believe that there is danger of furtherbodily injury to that person; or (3) personswho the peace officerhas probable cause to believe have committed the offense defined by Section 25.08, Penal Code (violation of Court Order), whether or not the offense is committed in thepresence of thepeace officer. (b) If necessary to verify an allegation of a violation of a protective order, a peace officer shall follow the procedures established under Section 71.18, Family Code, without leaving the scene of the investigation if there is a possibility of the further commission of family violence. (Emphasisadded).
Code Grim. Proc. art. 14.03. Article 14.03 subsections (a)(2) and (a)(3)refer to offenseswhich thePenal Code definesas misdemeanors. See Penal Code 5522.01; 25.08. -

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Section 22.01 of the Penal Code, which defines the offense of assault, provides that a person commits an offense if he "intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse." Penal Code 522.01(a)(l). Section 25.08(a) of the Penai Code defines as an offense certain knowing or intentional conduct by a person.which violat? a protective order issued to restrain him from family violence. The actions which constitute offenses under Penal Code section 25.08 if performed in violation of such a court order include conssittingfamily violence, communicating directlywith a member of the family or household in a threatening or harassing manner, or going to or near the residence or place of employment of a member of the family or household specificallydescribed in theprotectiveorder. Penal Code 525.08(a). You question the constitutionality of subsections (a)(2) and (a)(3), of article 14.03 of the Code of Criminal Procedure, which allow a peace officer to make a warrantless arrest of a person who has committed one of the enumerated offenses, even though the offensewas not committed in the presence of the peace officer. Compare Code Grim. Proc. art. 14.01with art. 14.03. You state inyour letter that article 14.03(a)(3) of the Code of Criminal Procedure allows a misdemeanor arrest without warrant for an offense committed under section 25.08(a)of the Penal Code evenwhen there is no danger to the party protectedby the court order. You suggest that article 14.03of the Code of Criminal Procedurewould allow a warrantless arrest based upon the protected party's report that the order was being violated, since this report would probably be legally sufficient to give the officerprobable cause. You do not question the constitutionalityof the underlyingprovision. subsection 25.08(a)of the Penal Code. Your concerns are directed at the arrest procedure which article 14.03 of the Code of Criminal Procedure authorizes when the officer has probable cause to believe that a person has violated section 25.08 of the Penal Code.
You argue that subsections (a)(Z)and (a)(3)of article 14.03are invalid under the Fourth Amendment of the United States Constitution, which is applicable to the states through the Fourteenth Amendment. The FourthAmendmentprovides as follows:

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 noWarrants shall issue, but upon

1. Section 25.08 of the Penal Code has been amended by Senate BillNos. 887 and 1111 of the 70thLegislature,effective September 1, 1987. These amendmentsdo not renderyour questionsmoot nor do they change our answer. ?

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P
probable cause, supportedby Oath or affirmation, and particularly describing the place to be searched,and thepersons or things tobe seized.
U.S. Const. amend. 4. Article I, section 9, of the Texas Constitution provides a similar protection against unreasonable searches and seizures. Subsections (a)(2) and (a)(3) of article 14.03 of the Code of Criminal Procedure depart from the common law rule that a peace officer has no power to arrest for a misdemeanor without a warrant unless it has been committed in his presence or involves a breach of thepeace. See, e.g., Cranev. State of Texas, 759 F.2d 412 (5thCir. 1985). Neither subsection (a)(2)or (a)(3)of article 14.03rest upon any widely recognized exceptions to this common law rule. See 2 - LaFave, Search and Seizure 55.1, at 222-24 (1978).
The common law rule on searches and seizures has provided a startingpoint for interpreting the Fourth Amendment,but themeaning of this constitutionalprovision is not controlledby the common law rule. See, e.g., Welsh v. Wisconsin, 466 U.S. 740 (1984);Payton v.

.- New York, 445 U.S. 573, 579-81 (1980);United States v. Watson, 423

U.S. 411, 418 (1976); Carroll v. United States, 267 U.S. 132, I57 759 F.2d 412 (5thCir. 1985); Street E, 492 F. 2d 368 (4th Cir. 1974). In Welsh v. Wisconsin, (1925);srane v. State of Texas, v. Surdyl m. the SupremeCourt held that theFourth Amendmentprohibited the warrantless. nighttime entry into an individual'shome to arrest him for a noncriminal trafficoffense, absent exigent circumstances.

A dissent by Justice White pointed out that the common law requirement "that a misdemeanor must have occurred in the officer's presence to justify awarrantless arrest is not grounded in the Fourth Amendment." 466U.S. at 747. It furthernoted that the SupremeCourt has never held "that a warrant is constitutionallyrequired to arrest for nonfelony offensesoccurringout of the officer'spresence." Id. - InUnited Statesv. Watson, 423U.S. 411 (1976) the SupremeCourt held that the Fourth Amendment permits a law enforcement officer to make a warrantless arrest for a felonyoffense in a publicplace, even thoughhe had adequateopportunityto get awarrant. The court relied in part on the fact that the ancient comnon law rule was codified in the statuteauthorizingsuch arrests. 423 U.S. at 418. It also noted that the American Law Institute (ALI)had incorporated the common law standard for felonyarrests in itsmodel statutegoverningwarrantless arrests. 423U.S. at 422, n. 11. The model statute reads as follows:

(1) Authority to Arrest Without a Warrant. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause tobelieve that suchpersonhas committed

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### (a) a felony; (b) a misdemeanor, and the officer has reasonablecause tobelieve that suchperson

(1) will not be apprehended unless immediatelyarrested;or (ii) may cause injury to himself or others or damage to property unless immediatelyarrested; or Cc) a misdemeanor or pettymisdemeanor in the officer'spresence. (Emphasisin original). fi1, Model Code of Pre-arraignment Procedure P120.1 (1975). The Supreme Court .didnot comment on subsection (b) of the model code nrovision. which exnands the common law authority for warrantless

. arrests in misdemeanor cases. But see Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 Tex. L. Rev. 191, 221-22 (1981) (U.S.v. Watson makes clear that the sole requirement of the Fourth Amendment respecting arrests in publicplaces is that the officer actupon probable cause).
492 F.2d 368 (4th Cir. 1974). a federal 7 In Street v. Surdyka, court of appeals presented reasons why the Fourth Amendment does not incorporate common law restrictions on warrantless arrests for misdemeanors:

[T]heSupremeCourthas never given constitutional force to this element of the common law rule. In Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), the Court applied the common law rule but hinted that its restrictions could be relaxed by statute. Subsequent cases have focused entirelv on the reauirement of probable cause. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964);Benry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). We do not think the fourth amendment should now be interpreted to prohibitwarrantless arrests for misdemeanors committed outside an officer's presence. The difference between feionirs and misdemeanors is no longer as significant as it was at common law.

. . . Maryland courts have criticized the continued use of the common law rule as impractical and illogical, and have invited the state legislature to adopt new rules. Robinsonv. State, 4 Md.App. 515, 243 A.2d 870 (1968).
. . . We are most. reluctant to adopt a constitutionalinterpretation

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thatwould impedereform in this area. The fourth amendment protects individuals from unfounded arrestsby requiringreasonablegrounds tobelieve a crimehas been committed. (Footnotesomitted).
492 F.2d at 371-72.
A number of states have enacted statutes authorizing peace officers to make warrantless arrests for misdemeanors committed outside theirpresence. See, e.g.,D.C. Code Ann. 123-581;Fla. Stat. §901.15(6) (warrantlessarrest if there is probable cause to believe the person has committed an act of domestic violence in violation of injunction);Kan. Code Grim. Proc. 022-2401;Md. Code Ann. §27.594(B); Ohio Code Ann. 82935.03;Wash. Rev. Code Ann. 10.31.100. The courts of some stateshave dealtwith thevalidity of awarrantless arrest of an individualby a peace officer for a misdemeanor committed outside of his presence. See, e.g., State v. Presley, 458 So.2d 847 (Fla. Dist. Ct. Auu. 1984) (test for warrantless arrest in misdemeanor is whether the-officer-has a substantial reason to believe arrestee is guilty of a crime); LeBlanc v. State, 382 So.2d 299 (Fla. 1980) (provision for warrantless arrest for battery connnitted upon spouse does not violate equal protection clause);Wilson v. Hunk, 367 N.E.2d 478 (Ill. App. Ct. 1977) (warrantless arrest for 'misdemeanor not committed in officer's presence is not illegal arrest); Lurie v. District Attorney of Kings County, 288N.Y.S.2d 256 (Sup.Ct. Special Term 1968) (arrest for a misdemeanor not committed in officer's presence violates no state or federal constitutional standard);Cify of Columbus v. Berrell, 247 N.E.2d 770 (OhioCt. App. 1969) (statute authorizing peace officer to arrest without a warrant any person he has reasonable cause to believe is guilty of assault and battery, a misdemeanor, does not violate Fourth Amendment); Statev. Bryant, 678 S.W.2d 480 (Term.Grim. App. 1984),cert. denied, 469U.S. 1192,(1985) (the rule that a police officer has no authority to make misdemeanor arrest for offense committedoutsidehis presence is a common law rule and not constitutionally required). In Kelley v. State, 676 S.W.2d 646 (Tex. App. - Houston [lst Dist.] 1984, pet. ref'd) the court determined that a search was invalidbecause it was made pursuant to an invalid arrest for a felony. The court stated that the Fourth Amendment of the United States Constitution requires the police to have probable cause to arrest a suspect, and since therewas probable cause the federal constitution was not violated in this case. 676 S.W.2d at 648. However, sinceTexashas imposedgreater restraintson police conduct than the federal constitutionrequires, the arrestwas invalid because it violated Texas law. The court reviewed statutes authorizingwarrantless arrest, including the provision now codified as article 14.03(a)(2)of the Code of Criminal Procedure,but did, not comment on itsvalidity. 676 S.W.2d at 649. Finally, in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983). the court determined that Arizona law enforcement officers

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could arrest for violations of the Immigration and Nationality Act under the following stateprovision:

A peace officer may, without a warrant, arrest a person:

. . . . 4. When he has probable cause to believe a misdemeanor has been committed and probable cause tobelieve the person tobe arrestedhas committed the offense.

. . . Aria. Rev. Stat.Ann. 513-3883 (1978). Thus, there is federal and state case law, as well as legal scholarship, which supports the constitutionality of the arrest provisions you inquire about. We should moreover presume that this legislation is constitutional. See United States v. Watson, supra. We therefore do not believe subsections (a)(2) or (a)(3) of article 14.03are faciallyunconstitutional. Article 14.03 of the Code of Criminal Procedure does not expressly authorize an unconsented entry into a suspect's home to arresthim. A warrantless,unconsentedentry into a suspect'shome to make a routine felony arrestviolates the FourthAmendment. Payton v. New York, 445 U.S. 573 (1980). The Supreme Court has held that a warrantless nighttime entry into an individual's home to arrest him for a civil, nonjailable traffic offense was, in the absence of exigent circumstances,prohibited by the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984). Although the petitioner's stepdaughter opened the door for the police, the trial court did not decide whether there was consent to enter and the Supreme Court assumed there was no valid consent to enter the uetitioner's home. 466 U.S. at 743,n.1. In Welsh v. Wisconsin, the SupremeCourt stated as follows:

Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to allwarrantlesshome entries.
466 U.S. at 750. The court enumerated the few emergency conditions which ithas recognizedas justifyingwarrantless searchesor arrests: United Statesv. Santana. 427 U.S. 38, 42-43 (1976) (hotpursuit of a fleeing felon); Schmerber v. California, 384 U.S. 757, 770-71 (1966) (destructionof evidence);Michiganv. Tyler, 436U.S. 499, 509 (19.78) (ongoingfire). Welsh v. Wisconsin, 466 U.S. at 750.

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Article 14.03 of the Code of Criminal Procedure cannot be constitutionally applied to effect a warrantless entry to an individual'shome to arresthim, unless consent is given to the entry by a personwith authority to consent,or exigent circumstancesexist. Whether consent is given or exigent circumstances exist must be decided on the facts of each case.
SUMMARY Subsections (a)(2) and (a)(3) of article 14.03 of the Texas Code of Criminal Procedure, which authorizewarrantless arrests of personswho the peace officer has probable cause to believe have committedcertainmisdemeanorswhether or not in the peace officers presence, are not facially unconstitutional. These provisions cannotbe used to effect a warrantless entry to an individual's home to arrest him, unless the facts show that consent to the entry has been given or that exigent circumstances exist which justify the entry.

JIM MATTOX AttorneyGeneral of Texas
MARY KELLER ExecutiveAssistantAttorneyGeneral
JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General
RICK GILPIN Chairman,OpinionCommittee Preparedby SusanL. Garrison AssistantAttorneyGeneral

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