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GD I want some clarification

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  • GD I want some clarification

    Ok, here's the deal. A co-worker last night arrests a guy for Fail to ID for refusing to identify himself as he was detained. Let me give you the Texas statute for Fail to ID:

    § 38.02. FAILURE TO IDENTIFY. (a) A person commits an
    offense if he intentionally refuses to give his name, residence
    address, or date of birth to a peace officer who has lawfully
    arrested the person and requested the information.
    (b) A person commits an offense if he intentionally gives a
    false or fictitious name, residence address, or date of birth to a
    peace officer who has:
    (1) lawfully arrested the person;
    (2) lawfully detained the person; or
    (3) requested the information from a person that the
    peace officer has good cause to believe is a witness to a criminal
    offense.
    (c) Except as provided by Subsections (d) and (e), an
    offense under this section is:
    (1) a Class C misdemeanor if the offense is committed
    under Subsection (a); or
    (2) a Class B misdemeanor if the offense is committed
    under Subsection (b).
    (d) If it is shown on the trial of an offense under this
    section that the defendant was a fugitive from justice at the time
    of the offense, the offense is:
    (1) a Class B misdemeanor if the offense is committed
    under Subsection (a); or
    (2) a Class A misdemeanor if the offense is committed
    under Subsection (b).
    (e) If conduct that coitutes an offense under this
    section also constitutes an offense under Section 106.07, Alcoholic
    Beverage Code, the actor may be prosecuted only under Section
    106.07.
    Me and my co-worker got into a friendly disagreement. We were hilighting Penal Code sending it to each other over our computers. The Sergeants made him change the charge to Public Intoxication.


    Last November we arrested a murder suspect because he failed to give his address and we had suspicion to believe he was a witness to a criminal offense. He was merely detained. I got with the most knowledgable Sergeant known to the free world and asked him about it. He said, according to the Code of Criminal Procedure that detention and arrest are defined as the same thing. If that's the case, the wording in the Penal Code needs to be altered. Personally, I'm not going to arrest anyone if they're detained and won't give me their name. I can usually sweet talk them into giving it to me. I told a lady the other night that I would just take her to the jail and have her fingerprinted to reveal her identity and it worked. She had two felony warrants from Harris Co.

    So what in the hell is everyone's opinion on this matter?

    It's confusing and each Sgt. has a different point of view on the matter.

  • #2
    Your Sgt's opinion is the only one that counts. That is the Sgt that is on duty and is going to approve/disapprove your arrest

    Pure reading of the statute for intent is that the person must ID them selves if they are arrested and can be charged under that statute---------but that doesn't mean the AD will prosecute nor does it mean the judge will convict.

    It can be useful if the idiot needs to go to jail and can bond out on the original charge....
    Since some people need to be told by notes in crayon .......Don't PM me with without prior permission. If you can't discuss the situation in the open forum ----it must not be that important

    My new word for the day is FOCUS, when someone irritates you tell them to FOCUS

    Comment


    • #3
      A much argued topic. If you GOOGLE the two, you will find that detentions are minor arrests. Traffic stops are within that class. You generally release a detainee through a written promise to appear or on their own recognizance in the field. Investigations of a criminal nature which show minimal evidence may result in a detection of the perp until sufficient evidence is gathered, then an arrest is enacted. Your sergeant is correct in that a detention is a minor arrest.

      Arrest Vs Detention
      Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence!

      [George Washington (1732 - 1799)]

      Comment


      • #4
        LF, I totally agree with you, especially being a fellow Texan. A lot of officers don't comprehend it, but our department follows your idealogy. When merely detained, as the law states for Texas, a person is not required to identify themselves until they are under arrest. Now, if they lie while detained, then it's all good. I once had a situation on a welfare concern for somebody pacing back and forth in the road. I stopped him, but he refused to tell me who he was and said he just wanted to leave. I just arrested him for walking in the roadway and informed him that he was now obligated to tell me who he was, or he'd have another charge. That's basically how you work around the problem... I do disagree with the difference between arrest and detain. Arrest means they're going to jail, detainment does not. Everytime we go to a call, a person is detained for investigative purposes. If the same rules applied, saying that they were arrested, then we would have to Mirandize everybody for every legal detainment... Anyways, good call on your part..

        Comment


        • #5
          Originally posted by iamacop View Post
          LF, I totally agree with you, especially being a fellow Texan. A lot of officers don't comprehend it, but our department follows your idealogy. When merely detained, as the law states for Texas, a person is not required to identify themselves until they are under arrest. Now, if they lie while detained, then it's all good. I once had a situation on a welfare concern for somebody pacing back and forth in the road. I stopped him, but he refused to tell me who he was and said he just wanted to leave. I just arrested him for walking in the roadway and informed him that he was now obligated to tell me who he was, or he'd have another charge. That's basically how you work around the problem... I do disagree with the difference between arrest and detain. Arrest means they're going to jail, detainment does not. Everytime we go to a call, a person is detained for investigative purposes. If the same rules applied, saying that they were arrested, then we would have to Mirandize everybody for every legal detainment... Anyways, good call on your part..


          We also got on the discussion of what if you stop someone driving and all you have is reasonable suspicion (no PC for arrest yet) like they were just involved in a disturbance. Do they have to ID? I'd say they could be charged with this:

          § 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND;
          CRIMINAL PENALTY. (a) A person required to hold a license under
          Section 521.021 shall:
          (1) have in the person's possession while operating a
          motor vehicle the class of driver's license appropriate for the
          type of vehicle operated; and
          (2) display the license on the demand of a magistrate,
          court officer, or peace officer.
          (b) A peace officer may stop and detain a person operating a
          motor vehicle to determine if the person has a driver's license as
          required by this section.
          (c) A person who violates this section commits an offense.
          An offense under this subsection is a misdemeanor punishable by a
          fine not to exceed $200, except that:
          (1) for a second conviction within one year after the
          date of the first conviction, the offense is a misdemeanor
          punishable by a fine of not less than $25 or more than $200; and
          (2) for a third or subsequent conviction within one
          year after the date of the second conviction the offense is a
          misdemeanor punishable by:
          (A) a fine of not less than $25 or more than $500;
          (B) confinement in the county jail for not less
          than 72 hours or more than six months; or
          (C) both the fine and confinement.
          (d) It is a defense to prosecution under this section if the
          person charged produces in court a driver's license:
          (1) issued to that person;
          (2) appropriate for the type of vehicle operated; and
          (3) valid at the time of the arrest for the offense.
          (e) The judge of each court shall report promptly to the
          department each conviction obtained in the court under this
          section.

          Comment


          • #6
            There are a couple of states where a detained person is not required to identify themselves during a detention. California is on of them but I don't know about Texas. Per the statute you quoted, he only needed to ID himself upon arrest. Looks like your sergeant was right. It is a different story when they are stopped while driving and the stop is legal.

            Comment


            • #7
              (b)(2) is essentially the same as (a). If you give me false info it's the same as refusing. Your refusing by lying to me. Here in CO its called Criminal Impersonation, and after I transport you to the jail for fingerprinting to verify your ID and that you did in fact lie about your ID, I'll book you in for the Criminal Impersonation and of course whatever other warrant, or violation you were trying to hide from.
              Last edited by Dep D; 05-17-2011, 05:42 AM.
              Be safe pulling back into the thread...
              http://infidelswithhonor.com/

              Comment


              • #8
                lol +1 to Iowa

                Comment


                • #9
                  Detention they don't have to give up their info, arrest they do. Arrest means going to the pokey or being issued a citation in lieu of arrest. The way you go with it on the driver that you stop on Reasonable Suspicion is if they refuse to provide you a driver's license, you arrest them for no DL, then they have to provide their info or catch another charge. Most of our Fail to I.D.'s are people who lie to us because they have a warrant, in which case when it's all said and done they catch a Class A. Usually they lie to us because they have Class C city warrants.

                  Comment


                  • #10
                    The officer I work with that got into a bind the other night.....did some research

                    He found these annotations in the CCP:

                    Washburn v. State, 235 S.W.3d 346, 350 (Tex. App.-Texarkana 2007, no pet.). "A person is in 'custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. At least four general situations may constitute custody: (1) the suspect is physically deprives of his of her freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he or she cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe that his or her freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officer does not tell the suspect that he or she is free to leave." See also Nottingham v. State, 908 S.W.3d 585, 588 (Tex.App.-Austin 1995, no pet.).


                    State v. Purdy, 244 S.W.3d 591, 594 (Tex.App.-Dallas 2008, pet. ref'd). "An 'arrest' under art. 14.03 is not limited to a formal, custodial arrest. Thus, the provisions of Art. 14.03 also apply when an officer temporarily detains a person based on reasonable suspicion."

                    Comment

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