Since the legislature made profiling "against the law" (see CCP Art. 2.131)has anyone seen it used with the 38.23 supression provisions to resurrect the old pretext stop motion. If so, how have you handled it or is my worry baseless? I have to teach the issue to magistrates this year and would love a practical outlook.

They used this as a hypothetical case at the UT appellate seminar last May and some interesting arguments were presented by both sides. So long as the stop otherwise passed constitutional muster, that the officer also had a bad reason for initiating it does not mean the evidence subsequently discovered was obtained as a result of a violation of 2.131 or 2.132(b)(2). After all, every person stopped is "of a particular descent". If that were the only basis required to challenge a temporary detention then none would be valid. But who knows, maybe they will throw out the baby with the bathwater.

I'm sure we'll see more 38.23 suppression motions in general. It seems at seminars more attention is being paid to it. I haven't seen many 38.23 suppression motions in general as a prosecutor or judge but anticipate more once defense attorneys are reminded that such an avenue exists.

Brooks, No. 10-02-209-CR (12/31/02) implies a violation of 2.131 or 2.132(b)(2) would fall within the scope of 38.23. If someone succeeds in suppressing evidence on this basis there will be a lot of such motions (I predict).

Intrestingly this is the first case I've seen, unfortunatly the appellate court suggest my fears of repeating the pretext stop objection under 38.23 (that unique example that Texas has the most liberal criminal procedural rules) is well founded.
Thanks Martin

Ex parte Brooks does not in any way imply anything regarding the merits of a racial profiling objection.

In Brooks, the trial court expressly stated that the allegation of a racial profiling violation, contained in a pretrial application for writ of habeas corpus, had no merit whatsoever. On direct appeal of the application, the appellate court said nothing more than the use of a pretrial writ was an inappropriate vehicle for making such a claim. Such issues should be raised through a motion to suppress. So, how do you read anything in that?

The fact that the appellate court did not say the claim was without merit (i.e. affirm the ruling of the trial court on the theory raised in the lower court) and said Brooks can pursue a motion to suppress leaves the implication such motion might have merit. Why make the trial judge decide the issue again if the claim is wrong as a matter of law? I think the COA would have had jurisdiction to rule on the merits, but they chose a procedural device to avoid the issue instead. Nothing wrong with that route, but it was not the only choice. At least we now know how one learned trial judge views the issue.

No, I disagree. The court of appeals had no authority to say anything whatsoever on the merits of the claim because the defendant had no right to present the claim in the form of a writ of habeas corpus.

But what is so mysterious about whether a defendant can raise a racial profiling claim in a motion to suppress? He has always been able to raise that claim under the United States Constitution. No officer has ever (except perhaps before the Civil War) been able to make an unreviewable decision to arrest on the basis of race. All the racial profiling law does is state that constitutional claim in statutory language.

And, I would expect such a claim to be reviewed much like a Batson claim. Deference will be given to the decision-maker. A mixed basis for the stop should result in no suppression, so long as there is an objectively reasonable basis for the stop.
[This message was edited by John Bradley on 02-14-03 at .]

[This message was edited by John Bradley on 02-14-03 at .]

The art of reading between the lines is always subject to debate. I think the statute goes beyond any concerns about unconstitutional discrimination based on race. If not then why enact the law?

I think you have to be right in saying that any constitutional motive for the stop washes away the bad. To me that is the logical premise for Whren and the whole "objectivity doctrine".

Part of the reason I have such an eyeball out on this thing and such apprehension is that Whren did such a good job of defining the 4th ammendment issues just as John has detailed above. Yet, the last line of the dicta in that case left open the strange possibility of supression under the 14th (the basis of Batson. Left unanswered is the question, does the exclusionary rule even applies to a violation of the 14th? Add into this mix that obnoxious and overreaching procedural piece of crap 38.23. Now that profiling is made illegal (perhaps, there is no criminal penalty only a prohibition) does that create an end around to Whren and the Texas cases that follow it and are we open to having to battle the thrown out objection of pretext under the new guise of profiling and what standards, burdens, proof problems will be relevant. My hope is to keep my prosecutors and judges a step ahead not their normal two steps behind.

Martin's case would indicate (although clearly only in dicta) only appellate judge thinks we may have reopened pandora's box. John, thank you as well for your thoughts, keep um coming.

That there may be a link between 38.23 and 2.131 is implied even more strongly in Pruneda, No. 06-02-139-CR (4/25/03). There the court said the officer's testimony that he did not violate 2.131 and could give other reasons for the stop eliminated the need to instruct the jury. Scary.