I have a case where I need to prove that the defendant was lawfully arrested on a traffic ticket. The warrant has been destroyed, so I can't get a certified copy. Are there other ways to prove the arrest was valid?

Here's a case to look at, Weems v. State, 167 S.W.3d 350, 356 (Tex.App. -- Houston [14th Dist.] 2005, pet. ref'd) ("In some instances, the State is excused from producing both the warrant and probable cause affidavit at the suppression hearing if the State introduces sufficient evidence or testimony to permit the trial court to determine the existence of probable cause to effect the arrest.") cert denied 126 S.Ct. 2031 (2006)

I'm not a prosecutor, but if it was executed by a officer during a traffic stop, you might try getting a certified copy of the radio log which should show that the operator verified the warrant through TCIC. THen combine that with the officer's testimony that he was notified on the warrant check of an outstanding warrant and verified the warrant with TCIC.

Janette Ansolabehere
DPS

I know that when I was a police officer and we received TCIC verification that a person did have a warrant, we would receive the return from dispatch indicating that there was a warrant. This print out would be placed in the case file. You might check the police file and see if there is a printout of his warrant check from TCIC that indicated that there was an active warrant for his arrest. The only problem is if it was a city traffic ticket it might not have been placed in TCIC.

If it was placed in TCIC, you may try contacting DPS to do an offline search for the TLETS warrant check.

This advice is contrary to the line of cases commencing with Oliver, but I believe it is in accord with Arizona v. Evans and thus in accord with the governing law.

If the officer formed a reasonable belief that there was an outstanding warrant for the arrest of someone, then he had probable cause to make the arrest. The belief need not have been based on fact. Hence, the validity of the warrant is not at issue in justifying a subsequent search incident to the arrest (which doctrine is an exception both to the requirement of a search warrant and the need for an independant basis that evidence of a crime will be found). It is the fact of the arrest which makes the search reasonable.

While the advice given above about locating proof of the destroyed warrant is valid, it would not likely lead you to the affidavit (complaint), which is what Oliver seems to demand for the court to be able to judge an objection to the fruit of the search.

You say that if the officer had "a reasonable belief that there was an outstanding warrant for the arrest of someone, then he had probable cause to make the arrest." That seems reasonable enough, but irrelevant. Unlike the federal test for an arrest -- which only requires PC, Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 593 (2004) -- Chapter 14 of the Code of Criminal Procedure requires more than PC for a warrantless arrest. Similarly, the good faith exception of Section 38.23(b) requires "objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause." Objective good faith reliance would seem to require the actual existence of a warrant.

The best cases I could find for your position are Nunnally v. State, No. 11-03-00237-CR, 2004 WL 292051 (Tex.App. - Eastland February 12, 2004) (not published) (officer's reliance on "invalid" warrant did not make arrest illegal); and White v. State, 989 S.W.2d 108 (Tex.App. -- San Antonio 1999) (approving arrest that was based upon a recalled warrant).

Here's what Dix says about the issue:

"Whether article 38.23's good faith exception applies if no valid warrant was in fact in existence is not clear. Arguably the language of the exception mandates that there have actually been ‘a warrant’ in existence. Moreover, the legislature is unlikely to have intended that evidence be excluded if a warrant issued on less than probable cause exists but not if there turns out to have been no warrant whatsoever. A plurality of the Court of Criminal Appeals nevertheless has uncritically suggested that Evans is applicable under article 38.23."

40 TEXAS PRACTICE § 4.113 (citing State v. Mayorga, 901 S.W.2d 943, 946 (Tex. Crim. App. 1995) (plurality op.)).

David, what does the provision "found under circumstances which reasonably show that such persons threaten or are about to commit some offense against the laws" in 14.03 refer to? Is not the person about to escape from custody if he is charged with an offense and is being restrained pursuant to an order of a court? If Chapter 14 truly limits what an officer can do when the computer check shows a hit, then my guess is an illegal arrest has occurred during the time I have taken to write this message.

Article 14.03(a)(1) says "found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threatened, or are about to commit some offense against the laws."

In the present case, there doesn't seem to be a suspicious place." Moreover, you seem to be saying that the suspect is about to commit the offense of escape. TEX. PENAL CODE sec. 38.06. That strikes me as impermissible bootstrapping.

Escape requires the suspect to first have been in custody and then commits an escape. If the officer thought there was an arrest warrant and the suspect attempted to flee it would make sense to say that the officer had PC that the suspect was committing an escape. But unless everyone who has an arrest warrant out for them is committing an escape I don't think the officer could arrest the suspect in this case for escape.

Why would any prosecutor ever try to prove up an arrest warrant if all that is required is for the officer to testify that he was told there was an arrest warrant?

Maybe my problem is with the idea that in order to prove the arrest was not warrantless, the State must prove not only the existence of the warrant, but also its validity in order to show the search was reasonable (if Oliver is correct). The officer is simply not operating on the assumption he is limited to a decision under 14.03 but rather that there is a court order upon which he needs to act. I agree that an officer could lie about whether an outstanding warrant existed just as easily as he might lie about oral consent for a search. But that issue should not force an inquiry into how or why the warrant came into existence. That is not material to a determination of whether the search may be justified as incident to arrest. The Texas courts have improperly assumed the tree was poisonous. At a minimum, the burden should be on the defendant to show the arrest was tainted.

I am not saying everyone who has an outstanding warrant is committing escape, only those who are being detained because of the information about the existence of the warrant.