Facts: Officer stops suspect on traffic violation. Suspect is the only one in the car and the car belongs to him. Suspect hands officer out of state license and says he doesn't have a TX DL. Officer takes license, runs it, learns that suspect DOES have a TDL and that suspect has open, valid warrant out of a JP court. Officer puts suspect in cuffs and places suspect in rear of his patrol car. Officer does not read suspect his Miranda warnings. Officer asks suspect if there's any contraband in the vehicle. Suspect states he has some marijuana in the console. Officer finds it there. Officer asks suspect if it belongs to him and the suspect replies that it does.

The case is set for a motion to suppress the marijuana and the statement because the suspect was questioned while detained and hadn't been given his warnings. I know we don't have inevitable discovery in Texas otherwise the inventory of the car would take care of that. Anyone with any sage wisdom on how to handle the suppression issue? I can be e-mailed at goodwin_lincoln@dao.co.harris.tx.us

P.S. I know Ted Wilson is in my office, but I'm barking up every tree I know right now. Thanks in advance.

Is this a misdemeanor case?

art. 38.22 sec. 3 requirements do not apply because the statement contained assertions of facts or circumstances that were found to be true and which conduced to establish guilt (of the offense of possession). Even if there was a Miranda violation, that is not considered to establish a poisonous tree. E.g. Marsh, No. 03-02-0469-CR (08/14/03). The dope in the car is admissible, since the officer had p/c to conduct the search based on the statement. The statement was not obtained by actual coercion. The subsequent statement about "yeah, that's my dope" may be res gestae; not so sure about its admissibility, but seems like you have enough proof without that anyway.

Was there a reason the officer didn't give Miranda warnings?

John, the case is a misd. and officer has no good explanation as to why warnings weren't given when he arrested him on the warrant.

You have a search incident to arrest on finding the marihuana.

These sort of facts point out the difficulties of the American system of evidence collection and suppression. We continue to use suppression of evidence (thereby preventing a jury from hearing what might be reliable evidence) as a means of teaching proper law enforcement.

Is there a good alternative to the Exclusionary Rule? And does our willingness to use the Exclusionary Rule depend on the seriousness of the crime?

Phil, the defendant's argument is inevitable discovery, which we don't have in Texas. I don't know if search incident to arrest gets us there. Thoughts?

OK, the search was reasonable on 3 bases: there was probable cause; it was a Pettigrew, 908 S.W.2d at 570 search incident to arrest on the warrant for the other offense (that does not depend on the making of the statement); or it could ultimately have been justified under an inventory procedure. The only thing that purportedly makes it unreasonable is the obtaining of the probable cause through use of an "un-Mirandized" statement. But, that is not considered to give rise to a bad fruit. The Pettigrew search stands on its own, without any reliance on "inevitability". It relates only to the validity of the arrest and I would say is not tainted in any way by the failure to comply with 38.22 or Miranda. Would the outcome be the same if the response was "there's nothing in the vehicle, but the dead body of the person I murdered is over there in the brush"?

And my point is that I think courts (without stating it out loud) do handle it differently if there is a dead body. Check out Brimage v. State, 918 SW2d 466 (opinion on rehearing). Is it a coincidence that, on rehearing, the dead body is not suppressed?

Maybe some of our scholars can answer my question. Why do we not allow for the inevitable discovery exception here in the great state?

Hey Ben -- not presuming that I'm scholarly, but your answer is in the first sentence of 38.23(a). Our state's statutory exclusionary rule prevents reliance on the inevitable discovery doctrine. We have a good faith exception enacted in (b) of that provision, but it is limited to warrants based on probable cause.

Inevitable discovery was held to be contrary to art. 38.23. State v. Daugherty, 931 S.W.2d 268
(Tex.Crim. App.1996). Interestingly, Judge Baird's concurrence (the 5th vote for this rule) was based upon the legislature not having overruled a prior pluarilty opinion which had reached this result. Don't you love the way courts drag out that rule of statutory construction when it supports their opinion and ignore it when it doesn't help what they want to do.

Also, on the fruits of a Miranda violation look for new law on that topic this term from the supremes. in United States v. Patane, 304 F.3d 1013 (10th Cir. 2002) (firearm suppressed as fruit of Miranda violation), cert. granted, 123 S.Ct. 1788 (2003). See Burgess v. Dretke, No. 01-11287, 2003 WL 22597719 at *5 n.20 (5th Cir. November 11, 2003).

Given that officers ALWAYS ask an arrestee if he has any contraband, could you argue that this is a routine question incident to arrest? Not sure if this will work�this particular question seems to require a �testimonial� response, and therefore probably constitutes interrogation. See, e.g., Lemmons, 2002 Tex. App. LEXIS 2302, for a discussion of this issue in a case with a different fact pattern (post-Miranda booking question: �Do you use drugs?� Response: �I forgot [the cocaine] was in there because I use it so much.�); also check out the cases cited therein.

From an appellate standpoint (always popular with trial judges), where is the harm to the defendant in the police discovering the evidence as a result of an unMirandized custodial interrogation, as opposed to finding it 5 minutes later in a search incident to arrest or an hour later in an inventory search?

Now, Tonya...you know I can read the statutes (although I don't always understand them). I guess my question was what is our rationale for disallowing inevitable discovery. Obviously the leg didin't like it...I just wondered if anyone knew why. I have to agree with David that the way courts apply statutory construction does often mystify.

Sorry I'm late responding. Your criminal was arrested on a warrant found out after the stop. Now your policeman is allowed to search the "wingspan" area of the car incident to that arrest.