IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE THIRTEENTH COURT OF APPEALS
HARRIS COUNTY
CONCURRING OPINION
I join the judgment of the Court, but do not join its opinion. I cannot endorse the majority's new rule-"that a private person may do what a police officer standing in his shoes can legitimately do, but may not do what a police officer cannot do[.]" (1) It does not derive from the plain language of the statute, which makes inadmissible any "evidence obtained by an officer or other person in violation of any provisions of the . . . laws of the State of Texas[.]" (2) And while it may indeed "explain the outcome" of some of our recent precedents, (3) in the sense that we would have reached the same result on the facts of those cases utilizing the new rule, it does not follow from the various rationales underlying our holdings in those cases. The majority says the new rule is "consistent with the purpose of article 38.23." (4) It seems to me, however, that the new rule may have the unfortunate effect of encouraging vigilantes, rather than discouraging them, as we all agree was one of the manifest purposes of statute.
I agree with the judgment of the Court because it is consistent with my own opinion of the proper scope of Article 38.23(a). I have elsewhere expressed the view that, notwithstanding the apparent plain language of the statute, in order to avoid an absurd result, we should construe it to limit the exclusion of evidence to that which is obtained in violation of law that directly impacts the personal property or privacy rights of the accused. (5) I believe we should impose this limitation regardless of whether the violation of law is committed by "an officer or other person." Applying this view to the facts of the instant case, I cannot see how the traffic violations that Joseph Moore may have committed in the course of pursuing the appellant impacted the appellant's personal property or privacy rights. On that basis, I would hold that any evidence "obtained by" those traffic violations need not be suppressed, and I would therefore affirm the judgment of the court of appeals. (6) But I cannot join the majority opinion because I am concerned about where its new rule may take us.
PLAIN LANGUAGE
Since we decided Boykin v. State, (7) in 1991, we have attempted to construe Article 38.23(a) according to its plain terms. (8) Accordingly, we held in State v. Johnson, (9) that evidence obtained illegally by a person other than a peace officer is also subject to exclusion under the plain language of Article 38.23(a); or, as we phrased it later, "[e]vidence that a private person has obtained by committing [e.g.,] a burglary is not to be admitted against an accused on the trial of a criminal case." (10) It is this now-well-settled, plain-meaning construction of the statute that the appellant invokes.
There is, however, one aspect of Article 38.23(a) that is not necessarily governed by its plain language. As we recognized in Fuller v. State, (11) and reiterated in Chavez v. State, (12) long before we decided Boykin, the Court had engrafted a standing requirement upon the statute. We concluded in Fuller:
As in the past, we do not interpret the sweeping language of article 38.23(a) to confer automatic third party standing upon all persons accused of crimes, such that they may complain about the receipt of evidence which was obtained by violation of the rights of others, no matter how remote in interest from themselves. Although article 38.23 might be read in such a way, we are simply unwilling, by statutory interpretation, to work such a fundamental change in this State's elemental law of standing without a rather more explicit indication of legislative intent. (13)
Thus, we have long construed Article 38.23(a) to require that a criminal accused suffer a direct injury to his own rights before he can invoke its exclusionary remedy. As I pointed out in my concurring opinion in Chavez, echoing Presiding Judge Keller's concurrence in that same case, imposing such a standing requirement has the felicitous effect of avoiding certain potentially absurd consequences that might flow from an unfettered plain-language construction of the statute. (14)
The requirement that an accused have standing to invoke Article 38.23(a) suffices to dispose of the issue in this case. Any traffic violations that Moore may have committed (reckless driving and/or driving the wrong way on a one-way street) in pursuing the appellant to effectuate a citizen's arrest in this case did not impinge upon any of the appellant's personal privacy or property rights. (15) Therefore, the appellant had no standing to challenge the admission of any evidence that may have derived from that pursuit and arrest. We could affirm the judgment of the court of appeals on that basis, without any further ado. There is no need to fashion a new rule.
THE NEW RULE
The majority does not purport to glean its new rule either from the plain language of Article 38.23(a) or from case law heretofore construing the statute. (16) It adopts the new rule because it is at least consistent with results we have reached in our previous cases, (17) and because "the historical rationale for including unlawful conduct by an 'other person' under the Texas exclusionary statute is best explained and implemented by this rule." (18) Putting aside for a moment this questionable mode of statutory construction, one must ask whether the Court is accurate in its assessment that its new rule best implements the evident legislative purpose. In my view, this new rule may actually encourage vigilantes.
The majority frames the issue as "whether an officer or private citizen, engaged in an authorized pursuit of a fleeing suspect, may violate certain laws in order to follow or stop the suspect." (19) I agree that Article 14.01(a) of the Code of Criminal Procedure authorized Moore to effectuate a warrantless citizen's arrest of the appellant. (20) Therefore, the appellant cannot rely upon Article 38.23(a) to exclude evidence obtained by virtue of the warrantless citizen's arrest per se, even though Article 38.23(a) does apply to exclude evidence obtained by private citizens illegally. The question that remains is whether the evidence should be excluded under Article 38.23(a) because a private citizen has effectuated an authorized warrantless arrest in a manner that otherwise violates state or federal law.
The majority answers this question "no," at least as long as the private citizen's conduct in effectuating the authorized warrantless arrest would not be deemed "unreasonable" under the Fourth Amendment-that is, as long as it would not violate the Fourth Amendment were a police officer to perpetrate the otherwise-lawful arrest in the same manner. (21) But where does this new rule come from? Not from the face of Article 38.23(a) itself, obviously. And not from any previous case I am aware of that has construed the statute, although it may serve, in retrospect, to "explain" the results in certain of those cases as readily as whatever actual rationale we invoked in our opinions in those cases. Moreover, why would we answer the question only with reference to what is acceptable under the Fourth Amendment, when on its face Article 38.23(a) mandates the exclusion of evidence that is obtained in violation of "any" provision of "law," either state or federal?
As nearly as I can tell, the majority derives the new rule analogically from the recent opinion of the United States Supreme Court in Scott v. Harris. (22) There, the Supreme Court addressed the question whether a police officer could be sued in federal court for a civil rights violation under 42 U.S.C. §1983, when, in the course of a high-speed chase, he rammed the suspect's car, forcing him into a wreck and rendering him a quadriplegic. The answer to this question turned, in part, upon whether the police officer's use of force under the particular circumstances was objectively reasonable for Fourth Amendment purposes. "[S]loshing [its] way through the factbound morass of 'reasonableness[,]'" (23) the Supreme Court ultimately concluded that, weighed in the balance between the danger to the suspect (considering that he had largely brought that danger upon himself) and the threat that his reckless flight had posed to the public, the officer's conduct was reasonable. Therefore, the officer could not be sued. (24)
Borrowing from this holding, the majority now declares that henceforth, in Texas, a private citizen's conduct in effectuating an authorized warrantless arrest will not result in an exclusion of any evidence obtained thereby so long as his conduct is "reasonable" under the circumstances within the meaning of the Fourth Amendment, regardless of whatever other provisions of law, state or federal, he may violate along the way. Apparently, violations of federal statutory law, and of any Texas law whatsoever, will not result in the exclusion of evidence so long as the warrantless arrest is authorized under Chapter 14 of the Code of Criminal Procedure-never mind the plain language of Article 38.23(a) otherwise. In effect, the majority has re-written the statute so that it should now be read:
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; except that, if an officer or other person effectuates a warrantless arrest that is authorized under Chapter 14 of this Code, evidence obtained upon that arrest may be admitted unless it is obtained in violation of the provisions of the Fourth Amendment to the Constitution of the United States of America.
This is an impermissible judicial revision of the plain language of the statute. (25)
Boiled down to its essence, the majority's justification for this revision is relatively simple. Quoting Presiding Judge McCormick's dissenting opinion in State v. Johnson, (26) the majority argues that the "core" rationale for the federal exclusionary rule is to deter police misconduct. (27) This "core" purpose is less weighty when applied to the misconduct of private citizens. (28) Nevertheless, Article 38.23 also unquestionably reaches misconduct by private citizens as well, not just the police. (29) From these premises, the majority proceeds:
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 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. (30)
Applied to the facts of this case, if the manner in which Moore effectuated the authorized warrantless arrest of the appellant would have been "reasonable" for Fourth Amendment purposes had a police officer used that same manner, then it does not matter whether he may have violated any other provision of law, state or federal; any evidence obtained by virtue of that violation will not invoke the remedy set out in Article 38.23(a). (31)
But the logic is flawed. Even assuming that the legislative intent was to prohibit any evidence-gathering conduct on the part of private citizens that would be prohibited to police officers, it does not necessarily follow that the legislature also intended to implement the converse proposition: that any evidence-gathering police conduct that we would regard as lawful under the circumstances we would also permit a private citizen to engage in. Simply stating the converse proposition does not establish that it is true. Ours is not the federal exclusionary rule; the core rationale of Article 38.23 is not just to deter police misconduct, but to deter any and all misconduct perpetrated in the name of gathering evidence. (32) Police officers and private citizens are not "equivalent" in the kinds of conduct they can lawfully engage in; there are some kinds of otherwise-unlawful behavior that a police officer may undertake in the lawful execution of his official duties that are simply not available to private citizens. (33) If it is objectively reasonable for a police officer to break the traffic laws in hot pursuit of a dangerous suspect, then should it always be deemed equivalently reasonable, and hence permissible, for a private citizen to do the same? (34) Did the Legislature really mean to encourage that? Does the Court?
Filed: October 17, 2007
Publish
1. Majority opinion, at 19.
2. Tex. Code Crim. Pro. art. 38.23(a) (emphasis added) ("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.").
3. Majority opinion, at 19.
4. 5. 6. I do not, however, endorse the court of appeals's rationale. The court of appeals held that the
traffic violations did not invoke the exclusionary remedy of Article 38.23(a) because the "law which is
violated in obtaining evidence must exist for the purpose of regulating the acquisition of evidence to be used
in a criminal case." 7. 818 S.W.2d 782 (Tex. Crim. App. 1991).
8. 10. 11. 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992).
12. 9 S.W.3d 817, 819 (Tex. Crim. App. 2000).
13. 14. 15. I do not take issue with the majority's conclusion that Moore's citizen's arrest of the appellant was
authorized by Article 14.01(a) of the Code of Criminal Procedure. 16. There is no citation to 17. Majority opinion, at 14-19.
18. 19. 20. 21. 22. 23. 24. 25. Article 38.23 already contains one express exception in the form of Subsection (b), a statutory
good faith exception. "[E]stablished rules of statutory construction generally require that, where an express
exception appears in a statute, the statute must apply in all cases not excepted." 26. 939 S.W.2d at 590.
27. Majority opinion, at 13.
28. 29. 30. 31. 32. This statement should be understood in light of our standing requirement, 33. For example, Article 14.03(e) of the Code of Criminal Procedure expressly provides that the
statutory justification of public duty, found in Section 9.21 of the Penal Code, applies to insulate the
conduct of peace officers making certain warrantless arrests.
Moreover, Section 9.51 of the Penal Code sets up a legal justification for conduct that would otherwise be unlawful when the conduct is meant to facilitate law enforcement. Tex. Penal Code §§ 9.21(b) and 9.51. Section 9.51(a) justifies both peace officers, and civilians acting in the presence and at the direction of a peace officer, in using force against another under certain circumstances to effectuate an arrest or a search. Section 9.51(b) justifies a civilian, under even more limited circumstances, in using force against another to effectuate an arrest or search, even on his own. Section 9.51(c) justifies a peace officer in using deadly force against another under certain circumstances to effectuate an arrest (but not a search). Under Section 9.51(d), however, a civilian is justified in using deadly force against another to effectuate an arrest (but not a search) under certain circumstances only in the presence of and at the direction of a peace officer. None of these provisions affords a civilian the same latitude under the law to arrest and search as it does a peace officer, no matter how reasonable it might be under the particular circumstances to do so.
In any event, none of these provisions authorizes a civilian to place the lives of innocent bystanders
in danger by, e.g., speeding dangerously down the wrong way of a one-way public thoroughfare in pursuit
of a suspect, even if the civilian was authorized under Chapter 14 of the Code of Criminal Procedure to
make a warrantless arrest. When a suspect's own reckless behavior threatens the safety of bystanders,
it will often appear reasonable under the Fourth Amendment to allow peace officers to likewise break the
law in order to quell the danger. But do we really want to encourage a civilian to do the same, who may
not enjoy the same immunity from prosecution as the peace officer under state law, and who presumably
lacks the same level of training and experience that the peace officer will have in handling such situations,
just because on balance it may be "reasonable" under the particular circumstances for Fourth Amendment
purposes?
34. The majority attempts to temper its new rule by insisting that a citizen's arrest must not only be
reasonable under the Fourth Amendment, but also that it should not "significantly increas[e] the risk of
danger and harm to the public welfare." Majority opinion, at 31. It is apparently important on the facts
of this case that Moore's tow truck had overhead flashing lights. Should Texas courts now have to "slosh
[their] way through the factbound morass" of reasonableness