Probable Cause Affidavit in Texas

What is a Probable Cause (P.C.) Affidavit?

A Probable Cause (P.C.) Affidavit is a document containing the sworn statement of a law enforcement officer to illustrate the facts and circumstances that led them to believe a crime has been committed and that the person under arrest is the responsible party. A Judge or Magistrate then reviews it to determine the existence of probable cause. It is the role of the judge, not law enforcement, to make the final determination on whether probable cause exists.

A P.C. Affidavit acts as the official justification for police intervention and works to ensure arrests and searches are based on merit and not suspicion. This is required under the Fourth Amendment of the U.S. Constitution as well as Article I, Section 9 of the Texas Constitution. It is also outlined in the Texas Code of Criminal Procedure.

In Travis County, the P.C. affidavit can be used in three ways. It lists the evidence a judge needs to determine that there was sufficient cause to arrest an individual without a warrant. It can also be used to grant law enforcement the right to a search or issue a warrant. A P.C. affidavit is not complete without an oath, signed by the officer, and the review of a judge or magistrate.

A P.C. Affidavit is a matter of public record. The Law Office of Ken Gibson can pull this affidavit for you without charge to initiate proceedings for your release from jail.

What is the Purpose of a P.C. Affidavit?

Probable cause is a critical component of a person’s legal rights under the Fourth Amendment. It helps to prevent unlawful arrests and holds officers accountable against acting without proof.

• • Law enforcement officers need probable cause to uphold an arrest. Suspicion is not enough to justify an arrest without a warrant.
• • Substantial reasons are needed to convince a judge that a crime has likely occurred. Examples of hard evidence are not required; rather, a detailed explanation of the officer’s belief is sufficient.
• • A P.C. Affidavit can be used by police for a variety of offenses, from run-of-the-mill traffic stops to more substantial felonies like narcotics possession.
• • A P.C. Affidavit acts as a record of the allegations made by law enforcement against a defendant that prompted their unwarranted arrest, a search and seizure, or the issuance of a warrant for their arrest.

• • The allegations against the defendant(s).
• • An accurate description of the circumstances surrounding the arrest.
• • If applicable, any evidence that proves a specific crime occurred.

For example, in the case of DWI, specific evidence can be used to indicate inebriation, such as erratic driving, slurred speech patterns, or the failure of field sobriety tests.

In cases of assault, evidence of physical injuries, witness statements, or an acknowledgement of a physical altercation can substantiate an officer’s claim that a crime was committed. If an officer describes a verbal argument where neither party sustained injuries and there is no apparent threat of harm, probable cause might be called into question.

If the officer cannot provide these details thoroughly and accurately, the judge might rule that the arrest was unlawful.

A judge can only use the information that is contained within the affidavit to determine if probable cause exists. Judges are prohibited from using external information, hearsay, or other evidence not present in the confines of the affidavit. The use of additional oral statements from law enforcement that were not contained in the officer’s sworn statement are prohibited.

What Is Contained in a Valid P.C. Affidavit for a Warrantless Arrest?

• • A sworn statement made by the arresting officer explaining why they believe their arrest was justified and made in good faith.
• • The statement must include detailed circumstances surrounding the arrest, as well as the officer’s observations and reasoning that contributed to the allegations.
• • Specific evidence may include results of a breath test or witness testimony.

What Is Contained in a Valid P.C. Affidavit for a Search Warrant?

• • This affidavit must be secured before law enforcement can take any action.
• • This affidavit also requires a sworn statement from the officer explaining why the search is necessary.
• • The affidavit must demonstrate a clear connection between the suspect and the location.
• • It must also include a description of the location the officers intend to search, as well as the items they expect to seize.

What Happens After a P.C. Affidavit Is Filed?

• • The affidavit is the first step toward a defendant’s release from jail.
• • A judge cannot set the terms of a bond without a valid affidavit.
• • Texas law requires that people arrested for a misdemeanor must be taken before a magistrate within 24 hours.
• • State law requires that people arrested for a felony must be taken before a magistrate within 48 hours.
• • A jail will then take several hours to process the release.

Without a valid affidavit, a jail must release the defendant from custody.

In Travis County, the affidavit being filed is the first step towards a defendant’s release. If the affidavit is not filed in a timely manner, a judge cannot review it. Until a judge reviews it, a bond cannot be set, and the individual cannot be released.

If a P.C. affidavit is successfully challenged, it can result in charges being reduced or dismissed outright. If the case goes to trial, our attorneys can use issues presented in the affidavit to secure an acquittal or suppress specific evidence. Here are several points of contention that would enter into our attorneys’ strategy:

• • If the affidavit contains errors
• • If the affidavit is missing critical facts and information.
• • If the affidavit is determined not to be an accurate reflection of the events.
• • If the facts within the affidavit are not recent.
• • If the testimony from a witness or informant is determined not to be credible.

If a police officer is accused of lying on the affidavit, our attorneys can file a pre-trial motion called a Franks Hearing. To file a motion for a Franks Hearing, the defense must prove that part of the sworn statement was intentionally false and that this false statement contributed to the determination of probable cause.

To learn more or to schedule an immediate call-back or free case evaluation, please submit your contact information below. The Law Office of Ken Gibson is accessible around the clock to support you and can start work on your case straight away.