Court Of Appeals Case Of The Day- Herring in Texas?

Blawgers are still sifting through the 4th amendment wreckage from the Herring disaster.

How would a similar situation play out under Texas law? Would our exclusionary rule (38.23) protect the public from illegal searches based on non existent warrants?

This brings us to White vs. State, a 1999 case from the San Antonio Court of Appeals. H/T to the TDCAA message board and David Newell for bringing forward this opinion.

White vs. State

Facts The Bexar County Sheriff informed a San Antonio police officer that there was an outstanding felony warrant for James White. SAPD officer goes to White’s apartment, obtains a key from the landlord and lets himself in. White is found in the shower. During the arrest the officer finds a misdemeanor amount of marijuana.

Guess what? The warrant had been recalled. There was no warrant for the arrest of Mr. White. Defendant moved to suppress all evidence resulting from the illegal arrest. Motion denied by the trial court, defendant appeals.

Does 38.23 require the suppression of the marijuana?

Other issues- Shouldn’t the government be responsible for maintaining an accurate warrant database? Or is this good enough for government work? Are we going to further erode our basic protections to save another useless pot conviction?

What is 38.23? It is the Texas version of the exclusionary rule. I’m glad Texas codified this common sense measure, since SCOTUS is hell bent on destroying the 4th Amendment.

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any
criminal case….
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant
issued by a neutral magistrate based on probable cause.


How will the San Antonio Court of Appeals save this pot conviction? Simple, just expand the definition of “warrant” to include recalled warrants. Remember, it’s only legislating from the bench if you further a liberal cause, this is strict constructionism.

Holding- A recalled warrant is still a warrant under 38.23(b) so the good faith provisions apply. If Deputy Dingdong at the Sheriff’s office doesn’t update the warrant database, and the arresting officer doesn’t know the warrant is recalled, then the defendant has no recourse for a wrongful arrest. No suppression despite the illegal arrest.

I propose altering 38.23 to better inform the public how limited their protection is against illegal arrest. There is an distinct danger that Texans could read 38.23 and believe the law provides some degree of protection from such malfeasance.

Therefore, I propose a new subsection (c) for 38.23 as follows-
(c) It is an exception to the provisions of subsection (a) if drugs are found. The court shall consider the thousands of government employees who rely on petty drug arrests for their livelihood and sanction any police conduct that results in another triumphant dope arrest!

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