When is a person under arrest in Texas?

One of the most common questions I get from potential clients is “the officer didn’t read me my rights, does that matter?” Often it doesn’t, and the reason is the police only have to read Mirandize you when you are under arrest or subject to custodial interrogation. That is, the longer the cops can go without arresting you, the longer they can question you (which is another reason to never talk to cops, ask for a lawyer). This issue of when an arrest occurs is litigated often, so let’s look at the law in Texas.

From the Code of Criminal Procedure-

Art. 15.22. WHEN A PERSON IS ARRESTED. A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

Pretty simple. If you are under restraint or placed into custody you are legally arrested in Texas, right? Well, not so fast. You see, conservative judicial activists really hate when the State loses on appeal. And our Republican appellate courts work overtime to save convictions from annoying matters like constitutional violations.

To that end the Court of Criminal Appeals has gone out of it’s way to repeal 15.22. Why? Because if placing someone under restraint means they are arrested, then a lot of incriminating statements would be lost, and our conviction machine may as efficiently as they’d like.

So we now have all sorts of factors and balancing tests to see if someone is arrested. Again, judicial activists have taken a very clear bright-line rule, and ruined it to further their agenda (convict, convict, convict).

Here’s an example-

In determining whether a seizure was a detention or an arrest, a court may properly consider: (1) the amount of force displayed; (2) the duration of a detention; (3) the efficiency of the investigative process and whether it is conducted at the original location or the person is transported to another location; (4) the officer’s expressed intent, that is, whether he told the detained person that he was under arrest or was being detained only for a temporary investigation; and (5) any other relevant factors. U.S.C.A. Const.Amend. 4; Vernon’s Ann.Texas C.C.P. art. 15.22.

State v. Whittington, 401 S.W.3d 263 (Tex. App. 2013)

Notice how none of those 4 factors actually appear in the law, 15.22? That is, the law only requires restraint, but that’s not going to work, so we invented this list to help save a conviction. In Whittington is was a DWI case, but it applies in other situations.

Look at number 5 “any other relevant factors”. Really vague rules like that allow for some creativity when arguing, but it also gives appellate courts freedom to rule however they want.

So, the best practice is, whenever you are pulled over, don’t answer questions, ask for a lawyer, ask if you are free to go, and never ever never ever discuss any possible illegal activity with the police.