federal exclusionary rule in Texas

2021IV. 10 Id.; see Lerma, 543 S.W.3d at 190 . 5 “quintessential seizure” of the person. 11 Thus, traffic stops based on an officer’s suspicion that the driver violated a traffic law “is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.”12 Should police obtain evidence based on the violation of a suspect’s Fourth Amendment rights, the federal exclusionary rule usually prevents a state from using the evidence in a criminal proceeding against the party whose rights were violated.13 The exclusionary rule prevents the State from using

2016Applicability of exclusionary rule Finally, we address the State’s first point of error, in which it asserts that, “[e]ven if the police had violated O’Brien’s constitutional rights, the exclusionary rule does not apply.” The State focuses its argument almost entirely on the federal exclusionary rule, which is a judicially created remedy that requires the suppression of evidence obtained in violation of the Fourth Amendment.39 As the State observes, there are exceptions to the federal rule based on an officer’s good-faith reliance on the law as it existed at the time of the officer’s actions.4

2016The Court of Criminal Appeals,' however, has recognized that exceptions to the federal exclusionary rule are only applicable to the Texas exclusionary rule if they are consistent with the plain language of article 38.23. • Douds v. State, 434 S.W.3d 842, 861 (Tex.App.-Houston [14th Dist.] 2014), rev’d on other grounds, 472 S.W.3d 670, 677 (Tex.Crim.App.2015) (comparing .Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App,1996)); see Greer, 2015 WL 6366737 , at *3; Tercero, 467 S.W.3d at 10-11 ; State v. Esher, No. 05-14-00694-CR

2014“The Court of Criminal Appeals has held that exceptions to the federal exclusionary rule only apply to the Texas statutory exclusionary rule if they are consistent with the plain language of the statute.” Douds, 434 S.W.3d at 861 (comparing Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App.1996)).

2016The Court of Criminal Appeals,' however, has recognized that exceptions to the federal exclusionary rule are only applicable to the Texas exclusionary rule if they are consistent with the plain language of article 38.23. • Douds v. State, 434 S.W.3d 842, 861 (Tex.App.-Houston [14th Dist.] 2014), rev’d on other grounds, 472 S.W.3d 670, 677 (Tex.Crim.App.2015) (comparing .Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App,1996)); see Greer, 2015 WL 6366737 , at *3; Tercero, 467 S.W.3d at 10-11 ; State v. Esher, No. 05-14-00694-CR

2014“The Court of Criminal Appeals has held that exceptions to the federal exclusionary rule only apply to the Texas statutory exclusionary rule if they are consistent with the plain language of the statute.” Douds, 434 S.W.3d at 861 (comparing Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App.1996)).

2019Under such circumstances, “[t]o suppress the evidence derived from this warrant would not serve the interest of deterring future constitutional 2 In McClintock, the Court of Criminal Appeals noted the commonplace definition of “probable cause”: “under the totality of circumstances presented to the magistrate, there is at least a ‘fair probability’ or ‘substantial chance’ that contraband or evidence of a crime will be found at the specified location.” McClintock, 541 S.W.3d at 68 (citing Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)). 8 violations.” Massi, 761 F.3d at 532 (citing

2019“The question in Davis was whether to apply the federal exclusionary rule ‘when police conduct a search in compliance with binding precedent that is later overruled.’” Id. (quoting Davis, 564 U.S. at 232).

2026The purposes underlying article 38.23(a) are the same as those underlying the federal exclusionary rule: “to protect a suspect’s privacy, property, and liberty rights against overzealous law enforcement,” and the primary purpose “is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution.” Wilson v. State, 311 S.W.3d 452 , 458-59 (Tex. Crim. App. 2010).

2015Article 38.23 also advances the same purpose as the federal exclusionary rule—to ―deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution.‖ Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim.

2016The Court of Criminal Appeals,' however, has recognized that exceptions to the federal exclusionary rule are only applicable to the Texas exclusionary rule if they are consistent with the plain language of article 38.23. • Douds v. State, 434 S.W.3d 842, 861 (Tex.App.-Houston [14th Dist.] 2014), rev’d on other grounds, 472 S.W.3d 670, 677 (Tex.Crim.App.2015) (comparing .Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App,1996)); see Greer, 2015 WL 6366737 , at *3; Tercero, 467 S.W.3d at 10-11 ; State v. Esher, No. 05-14-00694-CR

2015The Court of Criminal a per se exigency in DWl cases, but A p p eals has previously held that McNeely was issued after the search in this "exceptions to the federal exclusionary rule case." This court recently addressed a only apply to the Texas statutory similar argument and concluded that exclusionary rule if they are consistent with M cN eely did not set out a new the plain language of the statute." Douds v. constitutional rule, but rather clarified State, 434 S.W.3d 842, 861 (Tex. App.-- Schmerber and reaffirmed the Supreme Houston [14th Dist.] 2014, pet. granted).

2003Moreover, “all evidence obtained by searches and seizures in violation of the [United States] Constitution is ... inadmissible in a state court” under the federal exclusionary rule, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment. 2 Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081 (1961).

2003Moreover, “all evidence obtained by searches and seizures in violation of the [United States] Constitution is ... inadmissible in a state court” under the federal exclusionary rule, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment. 2 Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081 (1961).

1996Therefore, it really makes no difference whether the federal inevitable discovery doctrine is characterized as an “exception to the federal exclusionary rule” or as an “exception to core prohibitions of the Fourth Amendment” because, no matter how it is characterized, the federal inevitable discovery doctrine does not consider the evidence “obtained in violation of the law.” See Leon, 468 U.S. at 910 , 104 S.Ct. at 3414-15 ; Nix, 467 U.S. at 447-48 , 104 S.Ct. at 2511 ; Brown, 422 U.S. at 602-03, 95 S.Ct. at 2261.

1996Therefore, it really makes no difference whether the federal inevitable discovery doctrine is characterized as an “exception to the federal exclusionary rule” or as an “exception to core prohibitions of the Fourth Amendment” because, no matter how it is characterized, the federal inevitable discovery doctrine does not consider the evidence “obtained in violation of the law.” See Leon, 468 U.S. at 910 , 104 S.Ct. at 3414-15 ; Nix, 467 U.S. at 447-48 , 104 S.Ct. at 2511 ; Brown, 422 U.S. at 602-03, 95 S.Ct. at 2261.

2025McClintock, 541 S.W.3d at 73 .” 7 Leon articulated a good faith exception to the federal exclusionary rule, such that “evidence obtained during the execution of a warrant later determined to be deficient is nonetheless admissible if the executing officer’s reliance on the warrant was objectively reasonable and made in good faith.” United States v. Woerner, 709 F.3d 527, 533 (5th Cir. 2013) (citing United States v. Leon, 468 U.S. 897 , 921–25 (1984)).

2019Under such circumstances, “[t]o suppress the evidence derived from this warrant would not serve the interest of deterring future constitutional 2 In McClintock, the Court of Criminal Appeals noted the commonplace definition of “probable cause”: “under the totality of circumstances presented to the magistrate, there is at least a ‘fair probability’ or ‘substantial chance’ that contraband or evidence of a crime will be found at the specified location.” McClintock, 541 S.W.3d at 68 (citing Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)). 8 violations.” Massi, 761 F.3d at 532 (citing

2021The federal exclusionary rule and article 38.23 of the Code of Criminal Procedure extend to evidence found as both the direct and indirect result of an illegal arrest, search, or seizure, known as the “fruit of the poisonous tree.” See Wong Sun, 371 U.S. at 485-86 ; Smith v. State, 542 S.W.2d 420, 422 (Tex.Crim.App. 1976); see also State v. Iduarte, 268 S.W.3d 544, 550 (Tex.Crim.App. 2008) (all evidence obtained as a direct or indirect result of an unlawful arrest must be suppressed under the “fruit of the poisonous tree” doctrine.).

2021IV. 10 Id.; see Lerma, 543 S.W.3d at 190 . 5 “quintessential seizure” of the person. 11 Thus, traffic stops based on an officer’s suspicion that the driver violated a traffic law “is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.”12 Should police obtain evidence based on the violation of a suspect’s Fourth Amendment rights, the federal exclusionary rule usually prevents a state from using the evidence in a criminal proceeding against the party whose rights were violated.13 The exclusionary rule prevents the State from using

2015See State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994) (no exclusion when there is attenuation of taint); Wehrenberg v. State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no exclusion when there is an independent source).

2015Ct. 916, 74 L. Ed. 2d 748 (1983) ..............................................................................................10 State v. Adkins, 433 N.J. Super. 479 , 81 A.3d 680 (App. Div. Dec. 20, 2013)................................................................................................ 17 State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................16 State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ...............10 State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 20 State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d) ..

2016Applicability of exclusionary rule Finally, we address the State’s first point of error, in which it asserts that, “[e]ven if the police had violated O’Brien’s constitutional rights, the exclusionary rule does not apply.” The State focuses its argument almost entirely on the federal exclusionary rule, which is a judicially created remedy that requires the suppression of evidence obtained in violation of the Fourth Amendment.39 As the State observes, there are exceptions to the federal rule based on an officer’s good-faith reliance on the law as it existed at the time of the officer’s actions.4

1996Using the analysis set out in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), the Supreme Court reasoned that the federal exclusionary rule was historically designed to deter police misconduct, not mistakes by court employees, and that court employees are not inclined to subvert the Fourth Amendment. 1 Evans , — U.S. at -, 115 S.Ct. at 1191 .

2015Ct. 916, 74 L. Ed. 2d 748 (1983) ..............................................................................................10 State v. Adkins, 433 N.J. Super. 479 , 81 A.3d 680 (App. Div. Dec. 20, 2013)................................................................................................ 17 State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................16 State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ...............10 State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 20 State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d) ..

2015Ct. 916, 74 L. Ed. 2d 748 (1983) ..............................................................................................10 State v. Adkins, 433 N.J. Super. 479 , 81 A.3d 680 (App. Div. Dec. 20, 2013)................................................................................................ 17 State v. Johnson, 871 S.W.2d. 744 (Tex. Crim. App. 1994)................16 State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) ...............10 State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000, pet. ref’d) . 20 State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref’d) ..

2021The federal exclusionary rule and article 38.23 of the Code of Criminal Procedure extend to evidence found as both the direct and indirect result of an illegal arrest, search, or seizure, known as the “fruit of the poisonous tree.” See Wong Sun, 371 U.S. at 485-86 ; Smith v. State, 542 S.W.2d 420, 422 (Tex.Crim.App. 1976); see also State v. Iduarte, 268 S.W.3d 544, 550 (Tex.Crim.App. 2008) (all evidence obtained as a direct or indirect result of an unlawful arrest must be suppressed under the “fruit of the poisonous tree” doctrine.).

2021IV. 10 Id.; see Lerma, 543 S.W.3d at 190 . 5 “quintessential seizure” of the person. 11 Thus, traffic stops based on an officer’s suspicion that the driver violated a traffic law “is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.”12 Should police obtain evidence based on the violation of a suspect’s Fourth Amendment rights, the federal exclusionary rule usually prevents a state from using the evidence in a criminal proceeding against the party whose rights were violated.13 The exclusionary rule prevents the State from using

2010The federal exclusionary rule “is an entirely American legal creation” which “is still universally rejected by other countries.” See Sanchez-Llamas v. Oregon, 548 U.S. 331, 343-44 , 126 S.Ct. 2669 , 165 L.Ed.2d 557 (2006) (internal quotes omitted).

2010The federal exclusionary rule “is an entirely American legal creation” which “is still universally rejected by other countries.” See Sanchez-Llamas v. Oregon, 548 U.S. 331, 343-44 , 126 S.Ct. 2669 , 165 L.Ed.2d 557 (2006) (internal quotes omitted).

2017While Article 38.23 to some extent "mirrors" the federal exclusionary rule, Miles v. State , 241 S.W.3d 28 , 32 (Tex. Crim.

2015See Miles, 241 S.W.3d at 35 (“Deterrence of police illegality is the ‘core’ rationale for applying the federal exclusionary rule ... see also Davis, 131 S.Ct. at 2431 (“[Exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred.

2015See id. art. 38.23(b) (providing the only exception for officers acting in good-faith reliance upon a warrant); State v. Anderson, 445 S.W.3d 895, 912 (Tex.App.-Beaumont 2014, no. pet. h.) (explaining that the federal exclusionary rule, unlike Texas’s, has at least three good faith exceptions) (citing Davis v. United States, — U.S. -, 131 S.Ct. 2419 , 2427-28, 180 L.Ed.2d 285 (2011)); Polk v. State, 704 S.W.2d 929, 934 (Tex.App.-Dallas 1986), aff'd, 738 S.W.2d 274 (Tex.Crim.App.1987).

2015See id. art. that (1) a warrantless, nonconsensual blood test un- 38.23(b) (providing the only exception for officers der the transportation code should be upheld as cat- acting in good-faith reliance upon a warrant); State egorically reasonable under the consent excep- v. Anderson, 445 S.W.3d 895 , 912 tion—applicable in the form of a prior waiver (Tex.App.–Beaumont 2014, no. pet. h.) (explaining through implied consent, the automobile exception, that the federal exclusionary rule, unlike Texas's, the special-needs exception, or the search-incid- has at least three good faith exceptions) (cit

2016The Court of Criminal Appeals,' however, has recognized that exceptions to the federal exclusionary rule are only applicable to the Texas exclusionary rule if they are consistent with the plain language of article 38.23. • Douds v. State, 434 S.W.3d 842, 861 (Tex.App.-Houston [14th Dist.] 2014), rev’d on other grounds, 472 S.W.3d 670, 677 (Tex.Crim.App.2015) (comparing .Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013) to State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App,1996)); see Greer, 2015 WL 6366737 , at *3; Tercero, 467 S.W.3d at 10-11 ; State v. Esher, No. 05-14-00694-CR

2016Applicability of exclusionary rule Finally, we address the State’s first point of error, in which it asserts that, “[e]ven if the police had violated O’Brien’s constitutional rights, the exclusionary rule does not apply.” The State focuses its argument almost entirely on the federal exclusionary rule, which is a judicially created remedy that requires the suppression of evidence obtained in violation of the Fourth Amendment.39 As the State observes, there are exceptions to the federal rule based on an officer’s good-faith reliance on the law as it existed at the time of the officer’s actions.4

2015See id. art. 38.23(b) (providing the only exception for officers acting in good-faith reliance upon a warrant); State v. Anderson, 445 S.W.3d 895, 912 (Tex.App.-Beaumont 2014, no. pet. h.) (explaining that the federal exclusionary rule, unlike Texas’s, has at least three good faith exceptions) (citing Davis v. United States, — U.S. -, 131 S.Ct. 2419 , 2427-28, 180 L.Ed.2d 285 (2011)); Polk v. State, 704 S.W.2d 929, 934 (Tex.App.-Dallas 1986), aff'd, 738 S.W.2d 274 (Tex.Crim.App.1987).

2015See id. art. that (1) a warrantless, nonconsensual blood test un- 38.23(b) (providing the only exception for officers der the transportation code should be upheld as cat- acting in good-faith reliance upon a warrant); State egorically reasonable under the consent excep- v. Anderson, 445 S.W.3d 895 , 912 tion—applicable in the form of a prior waiver (Tex.App.–Beaumont 2014, no. pet. h.) (explaining through implied consent, the automobile exception, that the federal exclusionary rule, unlike Texas's, the special-needs exception, or the search-incid- has at least three good faith exceptions) (cit

1996The answer lies in examining the history of the federal exclusionary rule and the history of Article 38.23(a). [3] In 1914 the United States Supreme Court adopted the federal exclusionary rule for federal prosecutions in the landmark case of Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914).

1996The answer lies in examining the history of the federal exclusionary rule and the history of Article 38.23(a). [3] In 1914 the United States Supreme Court adopted the federal exclusionary rule for federal prosecutions in the landmark case of Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914).

2007Rocha , 16 S.W.3d at 19 .

2007Rocha , 16 S.W.3d at 19 .