Had a problem come up mid-trial on a case I stepped in on at the last minute. After a traffic stop on the Interstate, Highway Patrol arrests driver for DWI. Passenger readily admits when questioned that he is in the country illegally. Trooper calls Border Patrol agent, who questions the subject via cell phone, and then asks trooper to detain him for Border Patrol. Agent faxes detainer to the jail. During the search incident to arrest, Trooper finds cocaine.
Any suggestions on the authority of a DPS trooper to detain someone as an agent of federal authorities? Luckily it was a bench trial and the judge recessed to give us some time. Any thoughts are appreciated in advance.
In your post, you said the trooper arrested Def for DWI. The subsequent discovery of the cocaine is part of a search incident to arrest whether or not he had the authority to detain for illegal entry.
If it does somehow matter despite that, determine if illegal entry is classified as a felony or misdemeanor by the Feds. If it is a felony, then Art. 14.01, 14.03(a)(5) [if the Def's admission is admissible under 38.22], and 14.03(d) all give the officer authority to arrest him. If it is a misdemeanor you could have a problem, again assuming that the illegal entry detention is relevant in any way.
This is a little off your path, but there are some recent cases. I came across this last week and have not had the chance to see how Texas plugs in.
This is a little off your path, but it includes some recent cases. I came across this last week and have not had the chance to see how it plugs into Texas law.
Thanks for the article. I have found no Texas cases, but have located a few leads through Google. Just to clarify, the driver was arrested for DWI but the passenger was the one with the dope. His immigration status is the only basis for the search that turned up the dope. Thanks again in advance for any help.
I believe that a first illegal entry is a misdemeanor and a second offense is a felony. 8 U.S.C.A. § 1325.
Alternatively, if he has been kicked out before then it is an offense to be "found" in the United States. 8 U.S.C.A. § 1326. That looks like a felony and also looks like it would trigger 14.01(b) (any offense committed in presence). "The statute contains three separate and distinct offenses, set forth disjunctively: entering, attempting to enter, or being found in the United States." United States v. Clarke, 312 F.3d 1343, 1346 (11th Cir.2002) (per curiam)
Call me at my office (512-424-2890). I have researched this area extensively for the agency. The short version is this: being in the country illegally is considered a civil violation of federal immigration law. If an officer catches the person wading the river, it's criminal. If he finds the person in the country illegally when he stops him for a speeding violation, it's civil. It's a preemption issue. If an officer in Texas arrests a person for a Texas offense (such as DWI), then the officer may notify border patrol and they can request a detained on the person until BP can check it out. That is perfectly legal. Since 9/11 at least three states have signed MOUs with the Department of Justice to train state law enforcement officers so they can legally enforce federal immigration laws. Also a couple of bills have been filed in Congress (CLEAR ACT is one) which would authorize state law enforcment officers to enforce federal immigration law. Anyway, I have all the case law, etc.
Senior Assistant General Counsel
Texas Department of Public Safety
I know federal agents have powers of arrest for violations of Texas law (see P.C. 2.122). Maybe you could do a search of the U.S. Govt code to see if they have some sort of reciprocal provision.
I became very familiar with 2.122 because I prosecuted dope cases on the border where federal agents did most of the arrests.
Hope this helps and is not too late.
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