In an unpublicized trial 4/2/02 in Dallas County Criminal Court #6, a 100 yr old Texas law that prevents police officers from forcing their way into a citizen's home with nothing more than a misdemeanor warrant was effectively nullified. The case involved a police officer from Highland Park attempting to serve a misdemeanor warrant for outstanding traffic tickets at the private home in Duncanville (both suburbs of Dallas). The HP officer did not notify or request assistance from Duncanville PD. When he went to the home,the homeowner's 14-yr-old son was there alone and did not want to open the door. The officer, who was in plain clothes, demanded the person name in the warrant. When told that person was not at the residence and in fact had been living out-of-state for some months, the officer demanded to be let in. While the 14-yr-old was calling his father at work, the HP officer entered the rear of the home. The 14-yr-old dialed 911 in a state of terror as he was chased into a back bedroom where he attempted to barricade himself as he was afraid the officer would harm him. (The 911 tape which was very intense was played in court bringing tears to the eyes of many listeners.) The 911 operator immediately dispatched Duncanville officers who, upon arriving on the scene, arrested the HP officer for criminal trespass.
At the end of the day yesterday after testimony which included the Duncanville officers, the victim, and victim's father and the playing of the disturbing 911 tape, the judge refused to give the jury the case. He literally jumped up and said he couldn't believe this went to the grand jury in the first place, that he thought it was a grudge case against the HP officer, and declared the officer not guilty! Even the Duncanville officers were incredulous. It's the law; should have been a cut and dried case, they thought.
It appears that one judge has basically changed a Texas law that has protected our 4th Amendment rights for over 100 years. This is a dangerous precedent and constitutes what may be abuse of judicial power.
I'll ask a stupid question: What is the 100 year old law that prevents an officer from executing a misdemeanor warrant via entering the defendant's home? (Let's assume that there is no question that the house involved was the residence of the defendant).
I don't know how old the law is, but Tex. Code Crim. Proc. art. 15.25 reads:
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).
I tried this case.
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 .]
Did you talk to the jurors afterward?
I tried to, but the Judge wanted to talk to them first by himself. When he came back out, the Judge said they were gone and did not want to talk to me.
Possibly there is a civil suit pending against the officer and perhaps Highland Park, where the issue could ultimately reach an appellate court as in Atwater v. City of Lago Vista, since the plaintiff there could appeal a similar ruling by a judge.
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.
It would certainly change law enforcement in Texas if police officers could make a forced entry solely on the basis of a misdemeanor arrest warrant. I imagine there are lots of misdemeanor arrest warrants for certain defendants that might get considerable attention in short order. I just do not believe that the legislature intended that when they wrote that statute way back when. Perhaps they should revisit it? All of the other state statutes I looked at that address this issue do not differentiate between misdemeanors and felonies.
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