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Officers serve arrest warrant for a young man at young man's house. Young man isn't there, but Defendant is. Officers do not pat down Defendant. They do however run him for warrants through the MDT. One warrant comes back as being good, and Defendant arrested. Defendant then searched incident to arrest at jail. Marijuana discovered in pocket. Officers then locate teletype of warrant which stated warrant was no good. Further phone call to agency (TYC)where warrant originated confirmed that warrant no good. I'm pretty sure the good faith exception applies. Thoughts anyone...
 
Posts: 7 | Registered: August 05, 2005Reply With QuoteReport This Post
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For the Fourth Amend issue you can look at

Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 699, 172 L.Ed.2d 496 (2009)(good faith exception based on mistake of court clerk)
and
Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (good faith exception based on mistake of law enforcement clerk).

The issue under Herring would be whether "the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests,”

The art. 38.23 issue is harder. For an Evans situation the Court of Criminal Appeals seems to say you are ok. State v. Mayorga, 901 S.W.2d 943, 946 (Tex.Crim.App.1995) (plurality portion of opinion).

A case a lot like yours is White v. State, 989 S.W.2d 108, 110 (Tex.App. – San Antonio 1999, no pet.) ("(1) a magistrate found probable cause to arrest White, signed the accompanying affidavit, and issued a warrant for White's arrest, (2) Officer Whitehead confirmed the warrant was outstanding on his mobile data terminal link to the NCIC computer . . . . We therefore hold the trial court properly found Whitehead acted in objective good faith reliance upon a [recalled]] warrant issued by a neutral magistrate based upon probable cause . . . .).

Here's some of what Dix has to say:

"Dunn's [Dunn v. State, 951 S.W.2d 478 (Tex.Crim.App.1997)], rationale suggests that if—as in Evans—a warrant had been issued but later “recalled” or otherwise nullified by that magistrate, an officer's reliance upon a mistaken perception that the warrant was still “issued” could render evidence admissible if that reliance was “objective”—apparently in the sense that under the circumstances a reasonable officer would not have learned that the “issued” warrant had been “unissued.” If in actual fact no warrant ever issued but an officer reasonably believed it had issued, on the other hand, the statutory language would seem to require that the good-faith exception be held inapplicable. It is difficult to see how this distinction makes sense in terms of any possible objectives of either the warrant requirement or the exclusionary demand of Article 38.23(a)."

40 TXPRAC § 7:64
 
Posts: 67 | Registered: February 26, 2005Reply With QuoteReport This Post
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