IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0984-19
THE STATE OF TEXAS, Appellant
v.
SEAN MICHAEL MCGUIRE, Appellee
ON STATE=S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
FORT BEND COUNTY
KEEL, J., filed a concurring opinion in which KELLER, P.J., and YEARY
and SLAUGHTER, JJ., joined.
CONCURRING OPINION
We granted review to decide whether exigency is needed to justify a warrantless
arrest under Article 14.03(a)(1). Neither its text nor our caselaw imposes an exigency
requirement, and we should say so. Since the lead opinion hedges on the issue, I
respectfully concur only in its judgment.
As pertinent here, Article 14.03(a)(1) authorizes the warrantless arrest of “persons
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found in suspicious places and under circumstances which reasonably show that such
persons have been guilty of some felony” or other enumerated offense. Tex. Code Crim.
P. art. 14.03(a)(1). It makes no mention of exigent circumstances.
Other statutes governing warrantless arrests not only mention exigent
circumstances but require them. Article 14.05 prohibits entry into a residence to make a
warrantless arrest absent “exigent circumstances” or consent. Tex. Code Crim. P. art.
14.05. Article 14.03(a)(2) specifies a particular exigency—“probable cause to believe
there is danger of further bodily injury” to a person who has already been assaulted.
Tex. Code Crim. P. art. 14.03(a)(2). Article 14.04 specifies another exigency—a
reported felon about to escape such that there is no time to get a warrant. Tex. Code
Crim. P. art. 14.04. But the Legislature has never imposed an exigency requirement on
Article 14.03(a)(1)—a significant omission.
This Court has never imposed an exigency requirement on Article 14.03(a)(1),
either. Rather, we have cited exigency as one circumstance in the totality that must be
analyzed to assess an arrest’s validity under the statute. In Gallups v. State, for example,
police were justified in arresting the defendant at his house because he walked there just
after abandoning his wrecked car, and there was an exigent need to test his blood-alcohol
level. 151 S.W.3d 196, 201–02 (Crim. App. 2004). In Swain v. State, the defendant’s
arrest at his workplace was justified because he admitted breaking into the missing
victim’s house, beating her, and leaving her in a remote location, and the police needed to
prevent his flight and find the victim. 181 S.W.3d 359, 366–67 (Tex. Crim. App. 2005).
Exigency was one circumstance in the totality that Gallups and Swain examined; it was
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not a particular requirement.
Dyar v. State declined an invitation to impose an exigency requirement onto
Article 14.03(a)(1) and instead embraced the longstanding totality-of-the-circumstances
analysis. 125 S.W.3d at 468 (Tex. Crim. App. 2003). Dyar observed that the
Legislature had never amended Article 14.03(a)(1) in response to earlier cases applying a
totality of the circumstances test, so we presumed that the Legislature intended the same
construction to continue to apply. Id.
Dyar applied a bifurcated test: (1) probable cause of guilt and (2) the defendant’s
location in a suspicious place. Id. The same facts that demonstrated Dyar’s guilt also
showed that the hospital where he was arrested was a suspicious place. Id. at 467–68.
He had been identified as the driver in a recent DUI and had admitted to drinking and
driving. Id. at 468.
Answering the suspicious-place question is a “highly fact-specific analysis.” Id.
Several factors have been examined to answer the question. Id. Dyar identified one
“important” and “constant” factor in determining the suspiciousness of a place of arrest:
temporal proximity between the crime and the arrest. Id. at 468. Another factor is
physical proximity. In Johnson v. State, the defendant was arrested on probable cause at
the scene of a murder within two hours of its commission; that was a suspicious place.
722 S.W.2d 417, 421 (Tex. Crim. App. 1986) (overruled on other grounds, McKenna v.
State 780 S.W.2d 797 (Tex. Crim. App. 1989)).
In this case, the “suspicious place” requisite was fulfilled by probable cause to
show Appellee’s guilt of a felony and by temporal and physical proximity between the
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crime and his arrest. He was found minutes after a car crash at a gas station a few
hundred feet from the crash site. A motorcyclist was dead, and motorcycle parts were
stuck in the grill of Appellee’s truck. Appellee showed signs of intoxication, he had beer
in his truck, he admitted he hit something, and his passenger said he hit a person. His
warrantless arrest was justified under Article 14.03(a)(1) notwithstanding any exigency,
and the court of appeals erred in upholding the trial court’s order suppressing evidence
obtained as a result of Appellee’s arrest.
Accordingly, I concur in the Court’s decision to reverse the lower court’s
judgment.
Filed: February 21, 2024
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