Untitled Texas Attorney General Opinion ( 1942 )

Hon. Wayne Lefevre Opinion No. O-4929
County Auditor He: Under the facts submitted does a
Clay County peace officer have the legal authority
Henrietta, Texas to arrest and search a person possess-
ing liquor without a warrant of arrest?
Dear Sir:
Your letter of October 9, 1942, requesting the opin-
ion of this department on the above stated question, reads in
part as follows:
“Please answer the following question for me.
“If a law enforcement officer suspects a person
to be in possession of alcoholic beverages in a dry
territory for purpose of sale and searches this per-
son outside of his home and finds what he was looking
for. Is it necessary for this officer to have a
search warrant to lawfully search and arrest this per-
son? Taking into consideration that the suspected
person has been convicted of the same charge many
times in the past.”
Bs we understand your request, you desire our opin-
ion on the question, whether or not a peace officer can legally
arrest and search a person under the facts submitted without a
warrant of arrest.
Generally speaking the laws of this State have ex-
pressly authorized peace officers to make arrests without war-
rants in a great many cases. (Articles 212-217, Vernon’s Anno-
tated Code of Criminal Procedure) Thus generally an arrest may
be made when an offense which is a felony or which is against
the public peace is committed in the presence or within the
view of the arresting party, or when it is shown by satisfactory
proof to a peace officer, upon the representation of a credible
person, that a certain party has committed a felony, and is
about to escape. Other circumstances giving rise to authority
to arrest without warrant are the verbal order of a magistrate
before whom a felony or breach of the peace has been committed,
or the existence of a city ordinance passed in conformity with
State law and commanding search and arrest under prescribed
conditions.
Hon. Wayne Lef avre, page 2 (O-4929)
Under the Texas Liquor Control Act the possessing
of liquor as defined in said act for the purpose of sale in
a dry area is only a misdemeanor offense. The possession of
liquor for the purpose of sale in a dry areas is not a breach
of the peace within itself. For the purpose of this opinion
we assume that no city ordinance is involved.
We have carefully considered Article 666-20 and Ar-
ticle 666-44, Vernon’s Annotated Penal Code, and have concluded
that these statutes are not applicable to the question under
consideration as the search of buildings, premises or vehicles
of transportation is not mentioned in your inquiry.
In view of the foregoing you are respectfully advised
that it is our opinion that the peace officer has no authority
to arrest the person in question without a legal warrant of
arrest.
In connection with the foregoing we wish to point out
that it is a settled rule that no search warrant is essential in
order to search the person of one lawfully under arrest for the
purpose of finding and seizing dangerous weapons, the instru-
ment s or fruit 3 of a crime, and such other things as may be of
use as evidence on the trial. Even in cases where the law per-
mits an arrestwithout warrant the right to search the person
arrested follows as an incident to the arrest, and this natur-
ally implies a search contemporaneous with the arrest. In the
language of the United States Supreme Court (Agnello v. United
States, 269 U.S. 20) frequently quoted and approved by the Texas
Court:
“The right without a search warrant contempor-
aneously to search persons lawfully arrested while
cominitting crime, and to search the place where the
arrest is made in order to find and seize things
connected with the crime as its fruit or as the
means by which it was committed, as well as weapons
and other things to effect ah escaue from custody,
is not to be doubted.”
Trusting that the foregoing fully answers your inquiry,
we are
“PROVED OCT 29, 1942 Yours very truly
/s/ Gerald C. Mann ATTORNEYGENERALOF TEXAS
‘AT?ORNEYGENERALOF TEXAS By /s/ Ardell Williams
Ardell Williams, Assistant
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
AW:AMM:wb