In a recent Houston court of appeals decision, the judges published the following paragraph in discussing whether a particular law violation should lead to suppression of evidence under article 38.23, CCP. Does this paragraph set out a new theory for prosecutors to avoid suppression?

"A violation of law does not always invoke the provisions of article 38.23. See e.g. Roy v. State, 608 S.W.2d 645, 651 (Tex. Crim. App. 1980). The primary purpose of article 38.23 is to deter unlawful actions that violate the rights of criminal suspects. See Watson v. State, 10 S.W.3d 782, 784 (Tex. App.---Austin 2000, no pet.). For the violation of a particular provision of the law to implicate article 38.23, 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." Carroll v. State, 911 S.W.2d 210, 221 (Tex. App.---Austin 1995, no pet.) (quoting Judge Robert R. Barton, Texas Search and Seizure ? 2.0152 at 2-24 (1993)). Laws regulating the flow of traffic do not fall within this category. Thus while Moore's decision to violate various traffic laws may have been dangerous, his actions did not implicate article 38.23. See Romo v. State, 577 S.W.2d 251, 252-- 253 (Tex. Crim. App. 1979) (upholding citizen's arrest of drunk driver where the citizen, acting with permission of a police officer, pursued defendant at speeds approaching 90 miles per hour)."

The case is Miles v. State, (Tex.App. Dist.1 02/23/2006) Nos. 01-04-01080-CR, 01-04-01081-CR

i had seen the "acquisition of evidence" argument before, though i had never seen it applied to traffic laws. for example, the criminal trespass statute is designed to deter poachers and has nothing to do with the acquisition of evidence in a criminal trial. it makes sense to me, but i wonder whether this "new theory" could ultimately be applied to all penal offenses. and maybe there's a distinction to be made in Romo under a public duty exception. if you can bring in the law violation, shouldn't the court also consider justifications such as a citizen being told by the police to speed? i hate you article 38.23.

Bachick, 30 SW3d 549 (FW - 2000, pdrr) found that 38.23 did not apply where the officer's failed to comply with the notice provision of 14.03(d). A footnote in that case includes a nice laundry list of decisions which held that 38.23 did not apply in spite of the existence of a violation of the law. Here's the text with the footnote:

Not every violation of a "law" of Texas, however, will invoke the exclusionary rule. See Roy v. State, 608 S.W.2d 645, 650-51 (Tex.Crim.App. [Panel Op.] 1980). Article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule. [FN5] See Lane v. State, 951 S.W.2d 242, 243 (Tex.App.--Austin 1997, no pet.); Carroll v. State, 911 S.W.2d 210, 221 (Tex.App.--Austin 1995, no pet.). The primary purpose of the exclusionary rule is to deter police activity that could not have been reasonably believed to be lawful by the officers committing the conduct. See Drago v. State, 553 S.W.2d 375, 378 (Tex.Crim.App.1977). Where there is nothing in the record to indicate that the objectionable evidence was obtained as a result of the alleged statutory violation, exclusion is not required. See Stockton v. State, 756 S.W.2d 873, 874 (Tex.App.-- Austin 1988, no pet.).


FN5. For example, in Roy v. State, the court of criminal appeals held that violation of the assumed name statute by undercover officers involved in a "sting" operation did not require suppression of evidence seized in that sting. See Roy, 608 S.W.2d at 651. The Roy court reached this conclusion because the statute violated was unrelated to the purpose of the exclusionary rule and had no bearing on the officers' undercover operation. Id. Other cases have followed suit or reached the same conclusion. See, e.g., Pannell v. State, 666 S.W.2d 96, 97-98 (Tex.Crim.App.1984) (holding violation of a disciplinary rule was not a violation of a "state law" within the meaning of the exclusionary rule); Reeves v. State, 969 S.W.2d 471, 486-87 (Tex.App.--Waco 1998, pet. ref'd) (holding that violation of article 18.10 of the code of criminal procedure, which requires a court order to remove property from the county in which it was seized, did not render evidence inadmissible under article 38.23); Fisher v. State, 839 S.W.2d 463, 469 (Tex.App.-- Dallas 1992, no pet.) (holding that violation of health and safety code
section 481.159 "has nothing to do with the exclusionary rule"); Ramirez v. State, 822 S.W.2d 240, 246 (Tex.App.--Houston [1 st Dist.] 1991, pet. ref'd) (holding an otherwise valid arrest was not invalidated by fact that citizen-informer who assisted officer in arrest illegally possessed a firearm); Lopez v. State, 817 S.W.2d 150, 151-53 (Tex.App.--El Paso 1991, no pet.) (holding that improper handling of drugs in violation of health and safety code section 481.59 did not bar admission of evidence under article 38.23); Stockton v. State, 756 S.W.2d 873, 874 (Tex.App.--Austin 1988, no pet.) (holding article 38.23(a) does not encompass violations of education code).


In Rowland v. State, 983 S.W.2d 58, 60 (Tex.App.--Houston [1 st Dist.] 1998, pet. ref'd), a DWI defendant argued the trial court erred in allowing evidence that he had refused to take a breath test. The appellant argued that his refusal to submit to the breath test was inadmissible under article 38.23 because he did not receive a written copy of the statutory warnings before the officer asked him to submit to the breath test, as required by section 724.015 of the transportation code. TEX. TRANSP. CODE ANN. � 724.015 (Vernon 1999). The Rowland court determined that the appellant had failed to show a causal connection between the evidence obtained, i.e., his refusal to take the breath test, and the fact that he was not given the written warnings before he refused, and thus article 38.23 did not mandate exclusion. See id. at 60.

Here, the State argues that Burnett's failure to comply with the notice requirement in section 14.03(d) of the code of criminal procedure has nothing to do with the purpose of the exclusionary rule. The State also contends that Appellant has failed to show that any of the facts of this case would have been different if he had been turned over to the Bedford authorities or the Tarrant County Sheriff's Department. We agree on both counts. The notice requirement in section 14.03(d) is administrative in nature and is unrelated to the purpose of the exclusionary rule. Additionally, there is nothing to indicate that even if the Bedford Police Department or Tarrant County Sheriff's Department had taken custody of Appellant, he would have taken the tests he refused to take at the Euless City Jail, or refrained from making the same or similar remarks to the custodial officer. Because this notice requirement is unrelated to the purpose of the exclusionary rule, we hold that the trial court did not err in denying Appellant's motion to suppress.