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The exclusionary rule and suppression
Summary of the topic
Article 38.23 of the Code of Criminal Procedure is short, but it gives the other search and seizure rules their effect. Subsection (a) says that no evidence obtained by an officer or other person in violation of the Constitution or laws of Texas, or of the Constitution or laws of the United States, may be admitted against the accused at the trial of any criminal case. The rule is one of admissibility, and it applies whatever the grade of the offense.
Three features make the Texas rule different from the federal one. It reaches conduct by any person, so a private security guard, a landlord or an employer who obtains evidence in violation of the law is covered in the same way as a peace officer. It reaches violations of ordinary Texas statutes as well as constitutional violations. And it contains its own jury instruction.
The violation must have caused the evidence to be obtained. A statutory breach that has no connection to how the evidence came to light does not trigger the article, while a Fourth Amendment violation such as a stop without reasonable suspicion, or a search without a warrant or a recognized exception, does.
The jury instruction applies where the evidence raises an issue about how the evidence was obtained. In that case the jury must be told that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the article, it must disregard the evidence. The standard favors the accused, because a reasonable doubt is enough.
Article 38.23(b) states the one exception, which is evidence obtained by a law enforcement officer acting in objective good faith reliance on a warrant issued by a neutral magistrate based on probable cause. Every element must be present: a law enforcement officer, objective good faith, reliance on a warrant, a neutral magistrate and probable cause. Good faith without a warrant is outside the exception, so an honest but mistaken belief in consent, or in an exception to the warrant requirement, does not qualify. The test is objective, so the question is whether reliance on the warrant was reasonable and not whether the officer was sincere.
The warrant itself must also meet the subsection. A warrant issued by a magistrate who is not neutral, or without probable cause, does not bring the evidence within the exception. The exception covers defects elsewhere, such as a clerical error on the face of a warrant properly issued on probable cause. Not every procedural failure triggers the rule either. Article 18.10(a) says that a failure to make a timely return, or to submit an inventory, does not bar the admission of evidence under article 38.23.
Provisions this topic covers
- Tex. Code Crim. Proc. art. 38.23
- Tex. Code Crim. Proc. art. 18.10
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