                                              July 16, 1987
    ax XATTOX
    A-N&Y     O&XERAI.


                 Honorable Gary E. Kersey              Opinion No.   JM-751
                 Kerr County Attorney
                 317 Earl Garrett                      lt.2:Constitutionality of certain por-
                 Kerrville, Texas   78028              tions of article 14.03 of the Code of
                                                       Criminal Procedure, regarding warrant-
                                                       less arrests in certain misdemeanor
                                                       cases involving family violence

                 Dear Mr. Kersey:

                      You inquire about the constitutionality under the Fourteenth
                 Amendment of the United States Constitution of portions of article
                 14.03 of the Texas Code of Criminal Procedure. Article 14.03 provides
                 as follows:

                             .(a) Any         peace   officer may    arrest, without
-                          warrant :

                              .   .   .   .

                              (2) persons who the peace officer has probable
                           cause to believe have committed an a~ssault re-
                           sulting in bodily injury to another person and the
                           peace officer has probable cause to believe that
                           there is danger of further bodily injury to that
                           person; or

                              (3) persons who the peace officer has probable
                           cause to believe have committed the offense
                           defined by Section 25.08, Penal Code (violation
                           of Court Order), whether or not the offense is
                           committed in the presence of the peace officer.

                              (b) If necessary to verify an allegation of a
                           violation of a protective order, a peace officer
                           shall follow the procedures established under
                           Section 71.18, Family Code, without leaving
                           the scene of the investigation if there is a
                           possibility of the further commission of family
                           violence. (Emphasis added).

                 Code Grim. Proc. art. 14.03. Article 14.03 subsections (a)(2) and
                 (a)(3) refer to offenses which the Penal Code defines as misdemeanors.
                 See
                 -   Penal Code 5522.01; 25.08.



                                                        p. 3499
Honorable Gary E. Kersey - Page 2   (JM-751)
                                                                             i




     Section 22.01 of the Penal Code, which defines the offense of
assault, provides that a person commits an offense if he "inten-
tionally, knowingly, or recklessly causes bodily injury to another,
including the person's spouse." Penal Code 522.01(a)(l). Section
25.08(a) of the Penai Code defines as an offense certain knowing or
intentional conduct by a person. which violat? a protective order
issued to restrain him from family violence.       The actions which
constitute offenses under Penal Code section 25.08 if performed in
violation of such a court order include conssittingfamily violence,
communicating directly with a member of the family or household in a
threatening or harassing manner, or going to or near the residence
or place of employment of a member of the family or household
specifically described in the protective order. Penal Code 525.08(a).
You question the constitutionality of subsections (a)(2) and (a)(3),
of article 14.03 of the Code of Criminal Procedure, which allow a
peace officer to make a warrantless arrest of a person who has
committed one of the enumerated offenses, even though the offense was
not committed in the presence of the peace officer. Compare Code
Grim. Proc. art. 14.01 with art. 14.03. You state in your letter that
article 14.03(a)(3) of the Code of Criminal Procedure allows a
misdemeanor arrest without warrant for an offense committed under
section 25.08(a) of the Penal Code even when there is no danger to the
party protected by the court order. You suggest that article 14.03 of
the Code of Criminal Procedure would allow a warrantless arrest based
upon the protected party's report that the order was being violated,
since this report would probably be legally sufficient to give the
officer probable cause. You do not question the constitutionality of
the underlying provision. subsection 25.08(a) of the Penal Code. Your
concerns are directed at the arrest procedure which article 14.03 of
the Code of Criminal Procedure authorizes when the officer has
probable cause to believe that a person has violated section 25.08 of
the Penal Code.

     You argue that subsections (a)(Z) and (a)(3) of article 14.03 are
invalid under the Fourth Amendment of the United States Constitution,
which is applicable to the states through the Fourteenth Amendment.
The Fourth Amendment provides as follows:

             The right of the people to be secure in their
          persons, houses, papers, and effects, against
          unreasonable searches and seizures, shall not be
          violated, and no Warrants shall issue, but upon




     1. Section 25.08 of the Penal Code has been amended by Senate
Bill Nos. 887 and 1111 of the 70th Legislature, effective September 1,
                                                                         ?
1987. These amendments do not render your questions moot nor do they
change our answer.


                                    p. 3500
     Honorable Gary E. Kersey   - Page 3    (JM-751)


P




               probable cause, supported by Oath or affirmation,
               and particularly describing the place to be
               searched, and the persons or things to be seized.

     U.S. Const. amend. 4. Article I, section 9, of the Texas Constitution
     provides a similar protection against unreasonable searches and
     seizures.

          Subsections (a)(2) and (a)(3) of article 14.03 of the Code of
     Criminal Procedure depart from the common law rule that a peace
     officer has no power to arrest for a misdemeanor without a warrant
     unless it has been committed in his presence or involves a breach of
     the peace. See, e.g., Crane v. State of Texas, 759 F.2d 412 (5th Cir.
     1985). Neither subsection (a)(2) or (a)(3) of article 14.03 rest upon
     any widely recognized exceptions to this common law rule. -See 2
     LaFave, Search and Seizure 55.1, at 222-24 (1978).

          The common law rule on searches and seizures has provided a
     starting point for interpreting the Fourth Amendment, but the meaning
     of this constitutional provision is not controlled by the common law
     rule. See, e.g., Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v.
     New York, 445 U.S. 573, 579-81 (1980); United States v. Watson, 423
     U.S. 411, 418 (1976); Carroll v. United States, 267 U.S. 132, I57
     (1925); srane v. State of Texas, 759 F.2d 412 (5th Cir. 1985); Street
     v. SurdylE, 492 F. 2d 368 (4th Cir. 1974). In Welsh v. Wisconsin,
     m.     the Supreme Court held that the Fourth Amendment prohibited the
     warrantless. nighttime entry into an individual's home to arrest him
     for a noncriminal traffic offense, absent exigent circumstances.

          A dissent by Justice White pointed out that the common law
     requirement "that a misdemeanor must have occurred in the officer's
     presence to justify a warrantless arrest is not grounded in the Fourth
     Amendment." 466 U.S. at 747. It further noted that the Supreme Court
     has never held "that a warrant is constitutionally required to arrest
     for nonfelony offenses occurring out of the officer's presence." -Id.

          In United States v. Watson, 423 U.S. 411 (1976) the Supreme Court
     held that the Fourth Amendment permits a law enforcement officer to
     make a warrantless arrest for a felony offense in a public place, even
     though he had adequate opportunity to get a warrant. The court relied
     in part on the fact that the ancient comnon law rule was codified in
     the statute authorizing such arrests. 423 U.S. at 418. It also noted
     that the American Law Institute (ALI) had incorporated the common law
     standard for felony arrests in its model statute governing warrantless
     arrests. 423 U.S. at 422, n. 11. The model statute reads as follows:

                  (1) Authority to Arrest Without a Warrant. A
               law enforcement officer may arrest a person
               without a warrant if the officer has reasonable
.-             cause to believe that such person has committed



                                           p. 3501
Honorable Gary E. Kersey    - Page 4   (JM-751)




                   (a)     a felony;

                   (b) a misdemeanor, and the officer has
              reasonable cause to believe that such person

                        (1) will not be apprehended unless
                   immediately arrested; or

                        (ii) may cause injury to himself or
                   others or damage to property unless
                   immediately arrested; or

                   Cc) a misdemeanor or petty misdemeanor in
              the officer's presence. (Emphasis in original).

fi1, Model Code of Pre-arraignment Procedure P120.1 (1975). The
Supreme Court .did not comment on subsection (b) of the model code
nrovision.
.          which exnands the common law authority for warrantless
arrests in misdemeanor cases.        But see Dawson, State-Created
Exclusionary Rules in Search and Seizure: A Study of the Texas
Experience, 59 Tex. L. Rev. 191, 221-22 (1981) (U.S. v. Watson makes
clear that the sole requirement of the Fourth Amendment respecting
arrests in public places is that the officer act upon probable cause).
                                                                         7
     In Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974). a federal
court of appeals presented reasons why the Fourth Amendment does not
incorporate common law restrictions on warrantless arrests for
misdemeanors:

          [T]he Supreme Court has never given constitutional
          force to this element of the common law rule. In
          Bad Elk v. United States, 177 U.S. 529, 20 S.Ct.
          729, 44 L.Ed. 874 (1900), the Court applied the
          common law rule but hinted that its restrictions
          could be relaxed by statute. Subsequent cases
          have focused entirelv on the reauirement of
          probable cause. See Beck v. Ohio, 379 U.S. 89, 85
          S.Ct. 223, 13 L.Ed.2d 142 (1964); Benry v. United
          States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134
          (1959). We do not think the fourth amendment
          should now be interpreted to prohibit warrantless
          arrests for misdemeanors committed outside an
          officer's presence.      The  difference between
          feionirs and misdemeanors is no longer as
          significant as it was at common law. . . .
          Maryland courts have criticized the continued use
          of the common law rule as impractical and
          illogical, and have invited the state legislature
          to adopt new rules. Robinson v. State, 4 Md.App.
          515, 243 A.2d 870 (1968). . . . We are most.
          reluctant to adopt a constitutional interpretation


                                       p. 3502
Honorable Gary E. Kersey - Page 5     (JM-751)




          that would impede reform in this area. The fourth
          amendment protects individuals from unfounded
          arrests by requiring reasonable grounds to believe
          a crime has been committed. (Footnotes omitted).

492 F.2d at 371-72.

     A number of states have enacted statutes authorizing peace
officers to make warrantless arrests for misdemeanors committed
outside their presence. See, e.g., D.C. Code Ann. 123-581; Fla. Stat.
§901.15(6) (warrantless arrest if there is probable cause to believe
the person has committed an act of domestic violence in violation of
injunction); Kan. Code Grim. Proc. 022-2401; Md. Code Ann. §27.594(B);
Ohio Code Ann. 82935.03; Wash. Rev. Code Ann. 10.31.100. The courts
of some states have dealt with the validity of a warrantless arrest of
an individual by a peace officer for a misdemeanor committed outside
of his presence. See, e.g., State v. Presley, 458 So.2d 847 (Fla.
Dist. Ct. Auu. 1984) (test for warrantless arrest in misdemeanor is
whether the-officer-has a substantial reason to believe arrestee is
guilty of a crime); LeBlanc v. State, 382 So.2d 299 (Fla. 1980)
(provision for warrantless arrest for battery connnittedupon spouse
does not violate equal protection clause); Wilson v. Hunk, 367 N.E.2d
478 (Ill. App. Ct. 1977) (warrantless arrest for 'misdemeanor not
committed in officer's presence is not illegal arrest); Lurie v.
District Attorney of Kings County, 288 N.Y.S.2d 256 (Sup. Ct. Special
Term 1968) (arrest for a misdemeanor not committed in officer's
presence violates no state or federal constitutional standard); Cify
of Columbus v. Berrell, 247 N.E.2d 770 (Ohio Ct. App. 1969) (statute
authorizing peace officer to arrest without a warrant any person he
has reasonable cause to believe is guilty of assault and battery, a
misdemeanor, does not violate Fourth Amendment); State v. Bryant, 678
S.W.2d 480 (Term. Grim. App. 1984), cert. denied, 469 U.S. 1192,(1985)
(the rule that a police officer has no authority to make misdemeanor
arrest for offense committed outside his presence is a common law rule
and not constitutionally required). In Kelley v. State, 676 S.W.2d
646 (Tex. App. - Houston [lst Dist.] 1984, pet. ref'd) the court
determined that a search was invalid because it was made pursuant to
an invalid arrest for a felony. The court stated that the Fourth
Amendment of the United States Constitution requires the police to
have probable cause to arrest a suspect, and since there was probable
cause the federal constitution was not violated in this case. 676
S.W.2d at 648. However, since Texas has imposed greater restraints on
police conduct than the federal constitution requires, the arrest was
invalid because it violated Texas law. The court reviewed statutes
authorizing warrantless arrest, including the provision now codified
as article 14.03(a)(2) of the Code of Criminal Procedure, but did,not
comment on its validity. 676 S.W.2d at 649.

     Finally, in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.
1983). the court determined that Arizona law enforcement officers




                                    p. 3503
Honorable Gary E. Kersey      - Page 6   (JM-751)




could arrest for violations of the Immigration and Nationality Act
under the following state provision:

          A peace officer may, without a warrant, arrest a
          person:

              .   .   .   .

             4. When he has probable cause to believe a
          misdemeanor has been committed and probable cause
          to believe the person to be arrested has committed
          the offense. . . .

Aria. Rev. Stat. Ann. 513-3883 (1978).

     Thus, there is federal and state case law, as well as legal
scholarship, which supports the constitutionality of the arrest
provisions you inquire about. We should moreover presume that this
legislation is constitutional. See United States v. Watson, supra.
We therefore do not believe subsections (a)(2) or (a)(3) of article
14.03 are facially unconstitutional.

     Article 14.03 of the Code of Criminal Procedure does not
expressly authorize an unconsented entry into a suspect's home to
arrest him. A warrantless, unconsented entry into a suspect's home to
make a routine felony arrest violates the Fourth Amendment. Payton v.
New York, 445 U.S. 573 (1980). The Supreme Court has held that a
warrantless nighttime entry into an individual's home to arrest him
for a civil, nonjailable traffic offense was, in the absence of
exigent circumstances, prohibited by the Fourth Amendment. Welsh v.
Wisconsin, 466 U.S. 740 (1984). Although the petitioner's step-
daughter opened the door for the police, the trial court did not
decide whether there was consent to enter and the Supreme Court
assumed there was no valid consent to enter the uetitioner's home.
466 U.S. at 743, n.1. In Welsh v. Wisconsin, the Supreme Court stated
as follows:

          Before agents of the government may invade the
          sanctity of the home, the burden is on the
          government to demonstrate exigent circumstances
          that overcome the presumption of unreasonableness
          that attaches to all warrantless home entries.

466 U.S. at 750. The court enumerated the few emergency conditions
which it has recognized as justifying warrantless searches or arrests:
United States v. Santana. 427 U.S. 38, 42-43 (1976) (hot pursuit of a
fleeing felon); Schmerber v. California, 384 U.S. 757, 770-71 (1966)
(destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 (19.78)
(ongoing fire). Welsh v. Wisconsin, 466 U.S. at 750.




                                  p. 3504
Honorable Gary E. Kersey - Page 7 (JM-751)




     Article 14.03 of the Code of Criminal Procedure cannot be
constitutionally applied to effect a warrantless entry to an
individual's home to arrest him, unless consent is given to the entry
by a person with authority to consent, or exigent circumstances exist.
Whether consent is given or exigent circumstances exist must be
decided on the facts of each case.

                              SUMMARY

               Subsections (a)(2) and (a)(3) of article
          14.03 of the Texas Code of Criminal Procedure,
          which authorize warrantless arrests of persons who
          the peace officer has probable cause to believe
          have committed certain misdemeanors whether or not
          in the peace officers presence, are not facially
          unconstitutional. These provisions cannot be used
          to effect a warrantless entry to an individual's
          home to arrest him, unless the facts show that
          consent to the entry has been given or that
          exigent circumstances exist which justify the
          entry.




                                          JIM     MATTOX
                                          Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




                                p. 3505
