TexasCHLforum.com

powerboatr wrote: ↑Fri May 12, 2023 1:29 pmthat little paragraph above about a traffic stop being an arrest?? scary
officer can detain you with handcuffs and your not under arrest? how can they determine a traffic stop is an arrest?
thanks for the link

The whole area of detention versus arrest is a very scary thing. In this case, the logic the court used was that the law (both code of criminal procedure and transportation code) give officers the authority to arrest for for various offenses that occur in their presence or view. Nothing specifically gives them the authority to detain. Code of Criminal Procedure specifically states that a peace officer cannot arrest for traffic offenses outside his jurisdiction (as it was then - now county). The legislative intent of this was theoretically to stop officers from making traffic stops outside their jurisdiction, so clearly the legislature thought of traffic stops as arrests. They did point out that this does not mean it rises to the level an an arrest justifying a search incidental to arrest though. It makes it confusing on possible other consequences though.

What makes it even more confusing is that Texas law says all traffic offenses are class C misdemeanors. They are crimes. A peace can take you into custody and book you for almost any offense like that. In fact, the only two offenses that police may not arrest for are speeding and having an open container of alcohol in the car. In those two cases, they must offer a ticket first but can arrest if you refuse to sign it. They can arrest for any other offense, including things like not wearing a seat belt (that one went to SCOTUS who said it was OK). And they have the discretion to not arrest for anything also, with the one exception of violation of a protective order in the officers presence or view. That is the only mandatory arrest in Texas.

The problem is also the 4th amendment and its interpretation. It protects from unreasonable searches and seizures. It doesn't mention arrests, using the term seizures instead. As far as I know, all seizures were arrests and there was no such thing as an investigatory detention in the law until the famous case of Terry v. Ohio. The basics of the case are that a cop saw a guy casing a jewelry store for a robbery, stopped him and frisked him, finding a gun. The stop and search would have been illegal due to no probable cause, but the court was trying to find an excuse to support the cop. He did what most people think a cop should do, stopped a real criminal. So they decided that cops had to be able to stop people and investigate them for possible crimes if they had some suspicion they could use to justify the stop. This created the investigatory detention. It also created the frisk as a very limited search under some very specific circumstances. I have always wondered if they had foreseen how badly both of these get abused, if they would have still ruled that way.

The SCOTUS has since made rules that try to differentiate between detentions and arrests. If the police take you to a scene other than where the stop is, then it is an arrest. If the cops use shotguns and put you on the ground and cuff you, but then let you go after only a few minutes, it is still a detention. If it takes more than 2 hours it is an arrest. If it takes less than 30 minutes, it could still be a detention. And if it is in between those two, no one knows yet.

What makes it an arrest for Texas law and what makes it an arrest for federal law can be two very different things. The worst part of all this is that most cops do not understand this fully either nd cross the lines without knowing or understanding. A really good cop can justify almost anything in this area if he knows the law and can write a good report.

jmorris wrote: ↑Wed May 10, 2023 10:58 pm From The Texas Law State Library.
https://guides.sll.texas.gov/protest-rights/police

Do I need to show a police officer my ID?

Texas law only requires that you show your ID to a police officer under certain circumstances. These circumstances include: after you've been arrested, when you are driving, and when you are a License to Carry holder carrying a handgun.

Texas Law

Section 38.02 of the Texas Penal Code

Creates an offense for failing to identify yourself to a police officer after you have been arrested. Creates an offense for providing false identity information after you have been arrested or detained.

Section 521.025 of the Texas Transportation Code

Requires that drivers provide their drivers license upon request from a police officer while operating a motor vehicle.

Section 411.205 of the Texas Government Code

This statute requires those with a license to carry a handgun (LTC) to display their LTC and driver's license or identification certificate to a peace officer upon request. Those with a "protective order designation" must also display a copy of the order.
(This is ambiguous,. It makes it sound like it's separate from 38.02 or 521.025 but an office must first have a reason to demand ID.
Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display: - Jay)

This is a good statement of the law as I understand it. And I agree with your comment about whether or not the officer has to justify the demand for ID. But with the penalty removed, all they can do is charge for failure to ID, which as explained below doesn't mean what most people (including cops) think it means.

They did miss the giant loophole in TTC 521.025 though. You do not need to show the officer your driver's license IF you show it to the judge in court. This is a defense to prosecution only though. There is a bigger problem with not showing the DL on a traffic stop though. If you cannot satisfy the officer as to your identity, he cannot issue you a ticket. He will have to take you immediately to jail where they will be forced to hold you until they are satisfied as to who you are.

There is a very interesting case out of Nevada, the Hiibel case, that went all the way to SCOTUS. They basically rules that the stat law is the deciding factor and Nevada did require it in that case. Texas does not in most cases.

Understanding the Law

Failure to Identify (Versus Texas)
https://versustexas.com/fort-worth-misd ... -identify/

This private attorney's website provides a detailed discussion of Texas's "failure to identify" law.

While this is a very good basic discussion of failure to ID, I would probably have added one point to it. Make sure you know when you are arrested, and it may not be when you think. In 2004, as part of the dicta in the Texas v. Kurtz case, the Court of Criminal Appeals ruled that a traffic stop is an arrest. The whole basis of their decision is that a traffic stop is an arrest and the officer was outside his jurisdiction and thus without the authority to arrest in that case. They specifically rejected the argument that a traffic stop is an investigatory detention. Based on this logic, not showing a driver's license on a traffic stop could subject you to PC38.02 failure to ID charges. The defense in TTC521.025 would not apply then.

I think this is a very gray area of the law. As posted, the law requires you to display both your ID and LTC if you are asked to by a peace officer or magistrate. There are two problems with this. The first is that the penalty for not doing so has been repealed, which makes it a useless law.

The bigger problem is that it does not give the police or magistrate any additional authority to demand the ID. That makes it questionable if the officer asks for the ID when you are not required to present it, such as you just walking down the street when a cop stops you and asks for ID for no reason. Since he has no authority to demand an ID, can you get in trouble for not providing it? This is even more confusing if there is no penalty to the law.

I think the best way to consider this is to try to guess the legislature's intent. It was not to provide police with a means to make you identify yourself, but to make sure the officer knew you were carrying a weapon if he did stop you for some legal reason. This is why it says to present the LTC with the ID, not the other way around. It is also why it only requires you to show it if you are carrying a handgun.

And again, with no penalty, it is not anything to worry about now.