In case of felony, the officer may break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose.
It doesn't allow for forced entry on misdemeanor arrest warrants.
In a side note, according to Ted Wilson, in his book Warrants Manual for Arrest, Search & Seizure (another fine TDCAA publication), if the misdemeant is inside and says that he is not coming out, the officer has to come back another time or get a search warrant (which would allow forced entry).
This case involved no exigent circumstances, no hot pursuit, no nothing besides the three class C misdemeanor arrest warrants that some defendant picked up because he did not show up for Municipal Court on some traffic ticket citations.
The Trial Court took judicial notice, based on copies of old statutes that I offered, that Article 15.25 of the Code of Criminal Procedure has been essentially unchanged since 1879. The only thing that changed is that the statute used to refer to "effecting" an arrest. Now it refers to "making" an arrest. What is important is that it has always limited its authorization to *felony* arrest warrants.
The Trial Court ultimately stated that there was no law in Texas that affirmatively stated that an officer could not enter a residence on basis of a misdemeanor arrest warrant. My position was that there was a law prohibiting the officer's conduct and that it was called the criminal trespass statute. I argued that for an officer to enter a residence, he must have some lawful authority and that, in Texas, if his *only* legal authority was an arrest warrant, it better be a *felony* arrest warrant. The Trial Court's position was based on Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). The CCA acknowledged in Hudson v. State, 662 S.W.2d 957 (Tex. Crim. App. 1984) that Steagald limited the application of 15.25 with regard to the residences of third parties. The short version is that you need a search warrant if the target is not in a structure that can be construed to be the target's residence. However, in Steagald, the Supreme Court only used the word "warrant" and did not preface it with "felony." The warrant in Steagald was a felony warrant so they were not focused on what level of arrest warrant was involved. The following sentence is the peg on which the Trial Court may have hung its hat: "Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant." Steagald cites Payton v. New York, 445 U.S. 573, 583 (1980), among others, for authority. Payton, however, states that the warrant must be a *felony* warrant. A number of courts *outside of Texas* have latched onto the language in Steagald and held that there is no difference between a misdemeanor and felony arrest warrant with regard to an officer's authority to enter a residence since the United States Supreme Court did not distinguish between the kinds of arrest warrants in that case. Now one in Texas has done so, although the decision cannot be appealed.
I thought it was very telling that I could find no case in Texas with a suppression issue based on property seized while an officer was inside a residence based solely on the authority of a misdemeanor arrest warrant. If someone out there knows of one, I'll be chagrinned, but I'd sure like to see it. I think this is so because (a) it does not happen very much, (b) when it has happened, the prosecutor has rejected the case, (c) when a motion to suppress has been granted, the State declined to appeal figuring it was a loser issue, and (d) everyone operates on the assumption that "you can't take the door solely with a misdemeanor arrest warrant."
Before voir dire, the Trial Court denied my motions in limine with regard the law of foreign jurisdictions that dealt with the Justification defense of Public Duty in PC 9.21 and Mistake of Law in PC 8.03. The jury heard all the evidence in this case and there was little disagreement about the facts in front of them.
[This message was edited by Ben Stool on 04-05-02 at .]
By the way, Welsh, 466 U.S. at 748 also just speaks about "the" warrant requirement, certainly implying a misdemeanor arrest warrant might be adequate for Fourth Amendment purposes. Considering the number of unserved misdemeanor warrants out there that probably were not issued on a true probable cause finding, the judge's ruling does seem a little scary.