I need some help with the following scenario:
City police officer receives information from a CI regarding drug dealings in the county. Police officer has CI make several buys at drug dealer home and also personally observes lots of traffic at drug dealer home, people run into home, stay for 2 minutes and then leave, etc. City officer drafts affidavit using his personal surveillance as well as information from the CI.
Affidavit is presented to magistrate and search warrant is issued.
Continued on second post.....

[moved here by admin:]

Question is:
All of the drug dealing and personal surveillance occured in the county and not in the city limits....Does a city police officer have the authority to conduct an investigation in the county without the assistance or cooperation of the sheriff's office?

Can the city officers execute a search warrant in the county without the assistance of the sheriff's office since they are city officers and not sheriff's deputies?

And...Can the city officer be the affiant in a search warrant in which the entire investigation was conducted in the county and not the city? Is there a limit on their jurisdiction that would invalidate either the information they received or the execution of the search warrant?

[This message was edited by LC on 03-26-10 at .]

[This message was edited by Shannon Edmonds on 03-29-10 at .]

It looks like two issues:

(1) is there an art. 38.23 problem with investigating outside their jurisdiction, and

(2) is there an art. 38.23 problem with executing a warrant outside their jurisdiction.


I think the investigation is ok. 40 TEXAS PRACTICE § 4.41 ("an officer making a drug buy in a county in which the officer had no authority to act as a peace officer did not obtain the information in violation of a law of Texas for purposes of art. 38.23(a), because the officer could function as a private citizen and in doing so violated no statutory requirement.") (citing Chavez v. State, 970 S.W.2d 679, 681 (Tex.App. -- Eastland 1998), aff'd on other grounds, 9 S.W.3d 817 (Tex. Crim. App. 2000)). But see Chavez v. State, 9 S.W.3d 817, 830 (Tex. Crim. App. 2000) (Holland , J. dissenting) (police officer violated controlled substance act when he purchased drugs outside his jurisdiction).

I think that executing the warrant outside the officers' jurisdiction will render the search illegal. Texas cases have gone back and forth on this. See Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944) (where search warrant was executed by policemen outside their territorial jurisdiction search was illegal). Cases going the other way have been based upon a statute that -- for a time -- gave police county-wide territorial jurisdiction. Compare Britt v. State, 768 S.W.2d 514, 515 (Tex.App. -- Fort Worth 1989, no pet.) ("The statute in effect at that time governing city police jurisdiction provided city police officers 'have like powers, rights and authority as are by said title vested in city marshals.'") and Landrum v. State, 751 S.W.2d 530 (Tex.App. -- Dallas 1988, pet. ref'd) with Garcia v. State, 296 S.W.3d 180, 184 (Tex.App. -- Houston [14th Dist.] 2009) ("Generally, a peace officer is a peace officer only while in his jurisdiction and when the officer leaves that jurisdiction, he cannot perform the functions.") and McCain v. State, 995 S.W.2d 229, 235 (Tex.App. -- Houston [14th Dist.] 1999, pet. ref’d untimely filed) ("The officers who searched the property and recovered the pistol were officers in the Fort Bend County Sheriff's Department, and they were unable to perform the functions of their office while they were in Wharton County.").

Finally, Dix & Dawson discuss this issue. 40 TEXAS PRACTICE sec. 9.15:

A line of traditional Texas cases seems to say that a municipal police officer may function as a peace officer anywhere within the State.[FN1]

This was cast into doubt by Angel v. State,[FN2] decided in 1987. In the lead Angel opinion, Judge Campbell reasoned that a city officer has by statute the same "jurisdiction" as a city marshal,[FN3] who in turn has the same arrest power as a sheriff.[FN4] A sheriff has countywide jurisdiction.[FN5] Thus a city officer, he concluded, may arrest as a peace officer anywhere within the county in which his city is located but not beyond it.

Judge Campbell's Angel opinion was not an opinion of the Court of Criminal Appeals and so its authority is not clear.[FN6] Nevertheless, the courts of appeals have regarded Judge Campbell's Angel analysis as controlling and have followed it. Generally, they have concluded, a city officer may arrest as a peace officer or otherwise act in that capacity within the county,[FN7] but not beyond.[FN8]

Moreover, the analysis of the Angel plurality has been found both appropriate for and convincing in other contexts. Thus it has been followed in holding that a city officer may execute a search warrant outside of his employing city,[FN9] and in holding that a city police officer had authority to make an undercover purchase of controlled substances outside of the city but within the county in which the city was located.[FN10]

The statutory basis for the Angel plurality's analysis is, however, limited to Class "A" municipalities. No similar provision applies to Class "C" municipalities and one court has held that therefore Class "C" municipalities lack the power to give their police officers the authority to function as peace officers beyond the city limits of the employing city.[FN11] Another held that the analysis did not apply to officers of a Class "B" municipality.[FN12]

As the Waco Court of Appeals pointed out in Yeager v. State,[FN13] the legislature has changed the statutory provision applicable to Class A cities in a manner casting doubt upon the continued vitality of the Angel plurality's analysis. An officer of such a city no longer has authority defined by reference to that of a sheriff. The general authority of both such an officer and a city marshal is now that of a peace officer under the Code of Criminal Procedure.[FN14] Thus such officers now may have authority to act as peace officers only within the boundaries of their employing jurisdiction except as authorized by the Code of Criminal Procedure to act as peace officers beyond that area.

The Court of Criminal Appeals addressed the authority of municipal officers to make warrantless arrests for offenses committed in the presence or view in State v. Kurtz.[FN15] In the course of its analysis, Kurtz noted that "[w]hatever authority Angel may have had at one time,” it cannot now give authority to an officer where that authority is beyond what is conferred by article 14.03(g).[FN16] Perhaps this is implicit recognition of the court of appeals' point in Yeager. But it is at best only implicit.