two similar scenarios that we have been battling as to legality:

Scenario A(1): Patrol Officer contacts a subject for whatever reason. Consensual search turns up bag of marijuana. instead of arresting and booking, officer cites and releases with promise to appear that subject signs. case is turned in, and filed with DA. before promise to appear date, DA prepares complaint, warrant is issued, and Sheriffs Office goes, finds, and arrests subject on warrant.

Scenario A(2): Same set of circumstances, but court date is "to be set"

Question/Comment/Concern: (1) I see a problem as the subject was never afforded his opportunity to appear in court as agreed upon, essentially, by the state and himself. (2) if not setting a date then the promise to appear is incomplete, so subject should be taken before a magistrate, correct? but if not, similarly, case is turned in, complaint, warrant, and so on.



Scenario B: Patrol Officer contacts a subject for whatever reason. Subject is detained for criminal trespass. by detained, I mean he was escorted from the location to patrol car, cornered by officers, sat in back seat, not free to leave, etc., but was not handcuffed or told "you are under arrest". But officer decides to let go and informs subject that he will obtain a warrant later.

Question/Comment/Concern: Could the initial "detention" and subsequent "I will get a warrant instead" be seen as an arrest and therfore subject should have been taken before a magistrate?



We are having issues/questions with "filing at large", "to be" warrants, and the like. 99% of our a/b misdemeanors, subjects are issued a citation with a "to be set" date, even though they don't fall under the offense outlined in CCP 14.06(d). then DA does complaint, warrant, and S.O. goes and gets them. but if initial contact/promise to appear constitutes an arrest then the warrant and second arrest seems wrong.

Quick answer to both questions: No problem. An "arrest" is a permanent state of detention. An officer can always "unarrest" someone, as well, without having to take the offender to the magistrate. In effect, the officer is ending the permanent state of detention, or formal arrest.

As far as the "cite and release". The Code of Criminal Procedure doesn't specifically talk about it, but does provide for a summons or a warrant in a misdemeanor case(See Art. 15.02). But that has to be issued by the Magistrate. Thus, a warrant after a citation is issued isn't specifically prohibited, although it may be bad form.

In any event - issuance of a citation is not an arrest.