For example...a DWI. Can officer investigate, cuff, and arrest a suspect after finding probable cause and then decide to release the defendant? I would say no, and thought this has been discussed here before but couldn't find it. I think the officer would have to obtain a dismissal from a JP at magistration in order to get rid of the charge. THoughts? Cites?

Why could they not? No official charging instrument has been filed so I don't see the need for a magistrate's permission to release. This is routinely done for DWI defendants in the hospital; the DIC-24 is read, sample drawn and then they are released and later arrested with a warrant.

I ask as an interested officer, not trying to stir the pot.

From the DWI resources tab above:

2. LATER RELEASE DID NOT NEGATE

Williams v. State, 05-03-00787-CR, 2004 WL 434622 (Tex.App.—Dallas 2004, pet. ref'd.) (not designated for publication).

Gattis v. State, Nos. 14-03-00045-CR, 14-03-00046-CR, 2004 WL 2358455 (Tex.App.—Houston [14th Dist.] 2004) (Not designated for publication).

The fact that the officers, after obtaining the blood sample and learning appellant would not be released immediately from the hospital, decided not to stay with appellant and released him from their custody does not affect the conclusion that appellant was under arrest at the time the officers requested the sample.

Only one taker! I am shocked. But thanks BGreer, I think you are looking at it as a reasonable officer would. However, I think there is a lot of room for negative consequences.

I think one important point is that in your scenario, the officer does not change his/her mind about probably cause, but the circumstances do not make it feasible to retain custody. And the offender would still have to sit for their mandatory hours after arrest for the DWI.

What I am worried about is a situation where an officer changes his / her mind regarding the charges completely....does not file a case later. Just takes custody, arrests...and then later decides to release the suspect.

CCP 14.06 requires an arrested person to be taken to a magistrate. THere is no provision for "unless the arresting officer later determines that there is a good reason to not file charges."

CCP 15.17 lays out the duties and does not give any authority to release without magistration.

14.031 is the only place I can find that makes provision for release without magistration, but it even particularly says that it is IN LIEU of arrest.

My worry is the danger it poses to citizens and officers--"I paid the officer $200 and he released me" "I will tell your wife what I know about you if you don't release me" or any other improper influence that could occur between finding probable cause and completing the booking process.

It seems safer to always stick to actually named authority to do anything when it comes to infringing on personal liberty, even if it is the authority to unarrest.

If the officer looked back at the video and really decided that there was a problem, say with SFSTs or something, the magistrate could be informed, find no probable cause, then release could occur and at least all things are documented and noone can say the officer did anything other than remain conscientious.

Well....this is my opinion, but I was hoping to hear from some other prosecution brains to agree or disagree??

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There is really no problem at all with this, think it through. Officer gets PC (no question) Officer with all the formality in the world arrests the defendant. Officer through good follow up determines defendant is totally innocent (NoQuestion). Officer must continue to hold defendant and only magistrate can release. Stupid result. Of course the officer can release. It is called releasing pending filing of charges. Many large intake divisions in DA's offices do this hundreds and hundreds of times a year. And it is a very good idea.

The power to arrest must include the power to unarrest. Otherwise the defendant is wrongfully arrested or kidnapped until a magistrate is procured. Stupid result. Now official oppression, bribery and murder are all still crimes. Those should cover all the silly hypotheticals. Besides read the cases posted earlier, must sounder reasoning.

15.17 requires taking a person immediately before a magistrate, no need to do that if they are no longer arrested.
I don't mean to sound harsh, but you repeatedly put out the call to be corrected, I think you are dead wrong. Of course my opionion is worth what you paid for it. Anyone else want to weigh in?

We easily recognize the authority of an officer to temporarily detain a person. The officer is in control of the timing of the release from that detention. So, why wouldn't an officer, at least until a complaint is filed, have authority over the timing of a formalized arrest?

Clay,

Didn't seem harsh to me, maybe you should have put it in all caps to really communicate your tone. I will just reread it as though in all caps. Ok, now I am offended.

Seriously, your perspective helped my task. Thanks much.

Suzanne

JB,

I am swimming in a little more gray waters. I am not so worried about cases that are actually followed up on and reviewed by a prosecutor and JP. I am worried about probable cause found, custody obtained, then suspect released with no intention of any further review or documentation. This debate is not for a criminal case, but for policy discussion for best practices in a law enforcement agency.

Where does discretion end and dereliction of duty begin? If it is close to the end of the officer's shift, and the paperwork seems too heavy, can the officer just change his/her mind? If after making the PC determination and arresting, the officer finds out that the arrestee is another officer's son and doesn't want to proceed, can the officer undo the arrest?

I think this may be more of a policy question for an agency versus legal because I see what you both are saying about broad discretion to be used in the right circumstances.

A very wise former prosecutor once told me: "If you don't give prosecutors discretion, they won't have any." The same idea applies to officers. The more rigid we are, the more difficult we make their job. And at the same time, you foster the attitude that anything not prohibited is fair game.

We've seen some examples locally where SOP requires arrest but discretion would caution otherwise. You end up with little old ladies getting Tazed on dash cam video. Or arrested and cuffed.

Law enforcement agencies have multiple ways to ensure their officers aren't running around not making cases. There are log sheets, incident reports, radio logs, supervisors driving about, backup officers that make the scene, etc. etc. The idea that officers might be compromised or corrupted is a valid concern. But given the other controls we have, it probably should not dictate that a problematic arrest remain an arrest until a judge says release the suspect. I'm with JB, Clay A, and BGreer on this one.

It seems to me that you are also forgetting that if the officer was corrupt, he probably would not have made the arrest to begin with (only to un-arrest after being bribed, etc.). He'd just get the money based on the threat of arrest.

A citizen who knows that he has been wrongly arrested is going to be super angry. But the sooner, and with less hassle, the problem can be corrected, the less likely it is that he is going to stir up serious trouble for you, and the less stupid you will look in the media.

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My worry is the danger it poses to citizens and officers--"I paid the officer $200 and he released me" "I will tell your wife what I know about you if you don't release me" or any other improper influence that could occur between finding probable cause and completing the booking process.

A corrupt officer is always going to find ways to beat the system and get his money. So it seems to me that we should make it easy for officers to correct their mistakes. I make mistakes all the time and I appreciate having a Mulligan every now and then.

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Originally posted by suzannewest:
Where does discretion end and dereliction of duty begin? If it is close to the end of the officer's shift, and the paperwork seems too heavy, can the officer just change his/her mind? If after making the PC determination and arresting, the officer finds out that the arrestee is another officer's son and doesn't want to proceed, can the officer undo the arrest?

This is an ethics and supervisory problem. If an agency has officers that are doing, this they probably need to evaluate why these folks were hired/promoted in the first place.

A policy should have clearly delineated boundaries with some wiggle room for interpretation/discretion in the middle. If you construct the policy too narrowly you can have the unfortunate effect of handicapping the officers.

A good place to start for a policy like this would be the Law Enforcement Code of Ethics; violations of such could be written up as "conduct unbecoming an officer."

This message has been edited. Last edited by: bgreer,

Again, thanks all. I appreciate the opinions.

To "unarrest" is not a bad thing. It can save time, money, man hours and lots of other hassles, rather than trying to keep watch over a hospitalized prisoner.

Just wave "bye-bye".

And, Oh Molly, bless your heart - are you in your first semester? I knew everything, then, as well. and I was probably just as indoctrinated in the concept of the "corrupt and jack booted government thugs" that comprised law enforcement and prosecution. Thirty one years of legal practice (26 in prosecution)has just proven that I don't know sh*t, and I am glad we have the cops and prosecutors on our side. Life is "nasty, brutish, and short", but 99.9% of my fellows in law enforcement and prosecution try and make the world a better place. Keep coming back. We are a great resource.

The power to arrest must include the power to unarrest. Otherwise the defendant is wrongfully arrested or kidnapped until a magistrate is procured. Stupid result. Now official oppression, bribery and murder are all still crimes.
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About 12 years ago my local DA prosecuted a cop for official oppression for not releasing a guy he had arrested for DWLS, after the dispatcher came back on the air and said "never mind the guy's license is clear." The cop claimed that he did not have any authority to unarrest the guy, and had to tow his pickup and take him to jail.
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I doubt the DA would have made a criminal case out of it if the guy with the valid DL hadn't been the new boyfriend of the cop's ex-girlfriend.