Affirmed as Modified and Memorandum Majority and Dissenting Opinions
filed September 2, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00762-CR
TATIANA BAKHOUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 5
Harris County, Texas
Trial Court Cause No. 2214948
MEMORANDUM DISSENTING OPINION
I respectfully dissent and would reverse the trial court’s ruling based on the
arresting officer’s judicial admission that he lacked probable cause at the time he
arrested Appellant. See Maj. Op. at 6-7 (“Appellant further cites Neimeyer’s
testimony that he did not believe he had probable cause when he placed appellant
in handcuffs.”); see also Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App.
2005) (describing “judicial admissions” as “formal concessions . . . by a party or
counsel that have the effect of withdrawing a fact from issue and dispensing
wholly with the need for proof of the fact”) (citing 2 John W. Strong et al.,
McCormick on Evidence § 255 (5th ed. 1999)).
The majority correctly recites that, “The test for probable cause is an
objective one, unrelated to the subjective beliefs of the arresting officer . . . and it
requires a consideration of the totality of the circumstances facing the arresting
officer.” Maj. Op. at 8 (quoting Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.
App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 97 (1964))). Based thereon, the
majority concludes we are authorized to ignore the arresting officer’s judicial
admission that he lacked probable cause then construct post hoc probable cause
from the facts he knew at the time. I disagree.
First, the sentence cited by the majority from Amador reveals that we must
ignore officers’ subjective beliefs when testing “for probable cause” (emphasis
added); conversely, we are not instructed to ignore officers’ subjective beliefs
when analyzing the dispositive absence of probable cause. Indeed, Beck
specifically analyzed whether subjective good faith was sufficient to justify a
warrantless arrest and naturally concluded it is not. See Beck, 379 U.S. at 97 (“If
subjective good faith alone were the test, the protections of the Fourth Amendment
would evaporate, and the people would be ‘secure in their persons, houses, papers,
and effects,’ only in the discretion of the police.”). Beck therefore instructs us that
an officer cannot justify a warrantless arrest based on subjective beliefs alone; it
does not tell us that we must (or even should) also ignore arresting officers’
subjective beliefs that they lack probable cause at the time of an arrest.
This fundamental precept is neither new nor novel.
When the constitutional validity of an arrest is challenged, it is the
function of a court to determine whether the facts available to the
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officers at the moment of the arrest would “warrant a [person] of
reasonable caution in the belief” that an offense had been committed.
Beck, 379 U.S. at 96 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
Here, the constitutional validity of an arrest has been challenged; therefore, we are
duty-bound to determine whether the facts known to Officer Neimeyer at the time
he arrested Appellant would warrant a person of reasonable caution in the belief an
offense had been committed. Id. I conclude Officer Neimeyer’s admission that he
lacked probable cause (when viewed objectively) is controlling and that the
majority’s holding to the contrary effectively authorizes law enforcement seizures
based on “inarticulate hunches”. Terry v. Ohio, 392 U.S. 1, 21-22 (1968)
(“Anything less [than analyzing the facts against an objective standard] would
invite intrusions upon constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches, a result this Court has consistently refused to
sanction.”) (citing Beck, 379 U.S. at 89; Rios v. United States, 364 U.S. 253
(1960); Henry v. United States, 361 U.S. 98 (1959)).
Whether Appellant’s arrest was constitutional depends “upon whether, at the
moment the arrest was made, the officers had probable cause to make it — whether
at that moment the facts and circumstances within their knowledge and of which
they had reasonably trustworthy information were sufficient to warrant a prudent
[person] in believing that the [appellant] had committed or was committing an
offense.” Beck, 379 U.S. at 91 (quoting Brinegar v. United States, 338 U.S. 160,
175-76 (1949); Henry, 361 U.S. at 102). At the moment the arrest was made, the
arresting officer believed he did not have probable cause to arrest Appellant. See
id. at 94 (“[T]he record does not show that the officers saw the petitioner ‘stop’
before they arrested him, or that they saw, heard, smelled, or otherwise perceived
anything else to give them ground for belief that the petitioner had acted or was
then acting unlawfully.”). I do not see a way around this conclusion, analysis, or
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judicial admission. I respectfully dissent.
/s/ Meagan Hassan
Justice
Panel consists of Justices Spain, Hassan, and Poissant (Spain, J., majority).
Do Not Publish —Tex. R. App. P. 47.2(b).
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