I know there is no inevitable discovery in Texas, but here's what I have: Defendant stopped for reckless driving after dispatch receives a call. The officer witnesses violations and follows the vehicle with lights and sirens for over one minute. Finally, the Defendant stops and the officer begins his investigation by having him step out of the vehicle. It is at this time that other officers that have joined in the "chase" due to the Defendant's failure to stop begin to go through his vehicle pulling out beers and an ice chest and placing them in the bed of the truck. The investigating officer continues his conversation with the Defendant, administers sobriety tests, and arrests him.
Question: Obviously, this was a bad search as the Defendant had not yet been arrested. Does the evidence (beers and cooler)get completely suppressed so that even an inventory can not be relayed to the jury because of the officer's actions? (Help - I have gotten lost in a sea of Garcia and Daugherty.)
Not sure the search was bad, a search incident to arrest can take place prior to the arrest:
"Moreover, the fact that the search incident to the arrest preceded the formal custodial arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (“Once [Rawlings] admitted ownership of the sizable quantity of drugs found in [the] purse, the police clearly had probable cause to place [him] under arrest. Where the formal arrest followed quickly on the heels of the challenged search of [Rawlings'] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.')"
Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); Jenkins v. State, 978 So.2d 116, 125-26 (Fla. 2008) ("It is permissible for a search incident to arrest to be conducted prior to the actual arrest, provided that probable cause to arrest existed prior to the search, and the fruits of the search were not necessary to establish probable cause.").
Denny v. State, 2004 WL 2823151 (Tex.App.-Houston [1 Dist.] December 9, 2004, no pet.) (search before arrest was covered by search incident to arrest doctrine because police had PC to arrest for fleeing);
Was there any probable cause to believe there were open containers in the car (e.g., first officer saw cans/cups in plain view)? The automobile exception to the warrant requirement might save you if that's the situation. If they just went to town with no probable cause, well, I think you're probably stuck.
Actually, there is a doctrine akin to inevitable discovery-which may well apply to your facts. See Wiede, 157 S.W.3d at 96.
You said the officer "witnessed violations" -- if they were arrestable traffic violations, then that's the arrest your search is incident to. Doesn't matter if he wasn't formally arrested until later, as David pointed out; the only thing that matters is if you had PC to arrest at the time, IIRC.
|Powered by Social Strata|
© TDCAA, 2001. All Rights Reserved.