TX6: Confrontation clause does not apply to suppression hearings; here, dead officer’s reports came in

The officer who stopped defendant’s car was killed on the job shortly thereafter, and another officer continued the investigation. At defendant’s suppression hearing, the dead officer’s reports were admissible, and Crawford and the confrontation clause did not apply. On the merits, during a traffic stop, a plastic cup was thrown from the car. The defendant was arrested for giving alcohol to a minor and felon in possession, and the officer found from a passenger that the defendant had videotaped her underage having sex years ago and was going to again, but now she was of age. There was evidence of pornography in the car. The search of defendant’s car was valid as an inventory search, and there was probable cause shown for the search of defendant’s house. Graves v. State, 307 S.W.3d 483 (Tex. App. – Texarkana 2010):

With the exception of privileges, the Rules of Evidence do not apply to suppression hearings because they involve the determination of preliminary questions. Vennus v. State, 282 S.W.3d 70, 72 n.1 (Tex. Crim. App. 2009); Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002); Campbell v. State, 910 S.W.2d 475, 480 (Tex. Crim. App. 1995) (hearsay is admissible at suppression hearings to demonstrate probable cause to arrest). Further, this Court has held that the right of confrontation does not attach until trial. Ford v. State, 268 S.W.3d 620, 621 (Tex. App.–Texarkana 2008), overruled on other grounds, No. 06-08-00046-CR, 2009 Tex. Crim. App. LEXIS 1440, 2009 WL 3365661, at *3 (Tex. Crim. App. Oct. 21, 2009) (“The prosecutor obviously understood appellant’s objection because she responded appropriately: Hearsay is admissible in a pretrial suppression hearing; the Confrontation Clause does not apply to a pre-trial suppression hearing.”). This was also the holding of the Dallas Court of Appeals in Vanmeter v. State, 165 S.W.3d 68, 74 (Tex. App.–Dallas 2005, pet. ref’d). Many other jurisdictions have held that the federal Confrontation Clause does not apply to preliminary hearings. People v. Felder, 129 P.3d 1072, 1074 (Colo. Ct. App. 2005); Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122, 124 (Ga. 2007); State v. Rivera, 2008 NMSC 56, 144 N.M. 836, 192 P.3d 1213, 1218 (N.M. 2008); Sheriff v. Witzenburg, 122 Nev. 1056, 145 P.3d 1002, 1003 (Nev. 2006); State v. Woinarowicz, 2006 ND 179, 720 N.W.2d 635, 641 (N.D. 2006). Thus, Graves’ first complaint–that the trial court erroneously denied his objections to the affidavit, reports, and recording of Burns because they constituted hearsay and violated his fundamental right of confrontation and cross-examination under Crawford v. Washington fails.