Post details: TX: Citizen's arrest is governed by Texas exclusionary rule; and this one was authorized by exigent circumstances

10/20/07

Permalink 09:47:01 pm, by fourth, 494 words, 1412 views   English (US)
Categories: General

TX: Citizen's arrest is governed by Texas exclusionary rule; and this one was authorized by exigent circumstances

In surveying the history of the Texas exclusionary rule, the court concludes that the exclusionary rule does apply to a citizen's arrest. Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007):

Thus, the plain language and history of Article 38.23 lead to an inescapable conclusion: if an officer violates a person's privacy rights by his illegal conduct making the fruits of his search or seizure inadmissible in a criminal proceeding under Article 38.23, that same illegal conduct undertaken by an "other person" is also subject to the Texas exclusionary rule. If the police cannot search or seize, then neither can the private citizen. Conversely, if an officer may search or seize someone under the particular circumstances, then the private citizen's equivalent conduct does not independently invoke the Texas exclusionary rule, and the evidence obtained by either the officer or the private person may be admissible.

B. Searches and Seizures Conducted by "Other Persons."

Few Texas cases have discussed the types of searches and seizures conducted by private citizens that are illegal for purposes of the Texas exclusionary rule. In Gillett v. State, this Court declined to address whether the search of a dressing room by a Foley's Department Store security officer constituted an illegal search by a private person. Instead a majority of the Court held that the defendant did not have an objectively reasonable expectation of privacy in the dressing room because signs were posted saying that the dressing rooms were monitored. 36 Thus, evidence obtained from such a search, whether undertaken by an officer or a private security guard, was not barred by the Texas exclusionary rule.

. . .

None of these cases was explained on this basis, but this rule--that a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do--would explain the outcome in each case and is consistent with the purpose of Article 38.23. We conclude that the historical rationale for including unlawful conduct by an "other person" under the Texas exclusionary statute is best explained and implemented by this rule.

. . .

Based on the history and purpose of Article 14.01(a), as well as precedent, we reaffirm the reasoning in Woods and conclude that a citizen may make a warrantless arrest of a person who commits a misdemeanor within the citizen's presence or view if the evidence shows that the person's conduct poses a threat of continuing violence or harm to himself or the public. It is the exigency of the situation, not the title of the offense, that gives both officer and citizen statutory authorization to protect the public from an ongoing threat of violence, harm, or danger by making a warrantless arrest.

Officers at defendant's home with arrest warrant were able to go to the back door, too. McCloud v. Commonwealth, 2007 Ky. App. LEXIS 402 (October 5, 2007).*

Officer stopping defendant on a citizen informant's complaint was corroborated by observation. Sayler v. North Dakota Dept. of Transportation, 2007 ND 165, 740 N.W.2d 94 (2007).*

Pingbacks:

No Pingbacks for this post yet...

FourthAmendment.com

Notes on Use

August 2010
Sun Mon Tue Wed Thu Fri Sat
<< <     
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31        

Search

© 2003-10
Online since Feb. 24, 2003

To search Search and Seizure on Lexis.com $
Contact / About

 www.johnwesleyhall.com
 www.LawofCriminalDefense.com

Fourth Amendment cases,
citations, and links
[New]

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions

Most recent SCOTUS cases:
2010-11 Term:
  None yet

2009-10 Term:
  Michigan v. Fisher, 130 S. Ct. 546, decided Dec. 7 (per curiam) (ScotusWiki)
  City of Ontario v. Quon, 130 S.Ct. ___, decided June 17 (ScotusWiki)


2008-09 Term:
  Herring v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
  Pearson v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
  Arizona v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
  Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
  Safford Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354, decided June 25 (ScotusWiki)


Research Links:
  Supreme Court:
  SCOTUSBlog
  SCOTUSWiki
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  DOJ Computer Search Manual
  USSS computer search website


  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé LePew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)

XML Feeds

What is RSS?

Who's Online?

  • Guest Users: 30

powered by
b2evolution