Texas-Book-Gun Law Armed And Educated - Flipbook - Page 42
be admissible against the accused. This includes evidence found
in “good faith” reliance on a search warrant later determined to be
legally defective, or a statute later declared to be unconstitutional.
Evidence may also be admitted if it has become sufficiently
disassociated from the illegal police action, it was legally obtained
from an independent source, or it would have been inevitably
discovered through other legal means. The U.S. Supreme Court
has also ruled that the government may use illegally obtained
evidence if the police officer made a “reasonable” mistake of fact
or of law. Further, any evidence excluded during the prosecution
phase of a criminal trial can later be admissible if the defendant or
defendantʼs attorney “opens the door” to the issue by referring to
it in the testimony at trial.
In order to take advantage of the exclusionary rule, the person
charged with the crime has to have “standing” to make the
evidentiary challenge. What does this mean? Simply that the person
making the challenge had an expectation of privacy, was wronged
by the police action, and their personal Fourth or Fifth Amendment
rights were violated.
C. The Texas exclusionary rule
Texas has its own statutory version of the exclusionary rule found
in the Texas Code of Criminal Procedure Article 38.23. The
Texas exclusionary rule is broader than the federal exclusionary
rule because it excludes evidence obtained in violation of Texas
statutes and the Texas Constitution. Also, it excludes evidence
illegally obtained by both the police and private citizens, and does
not provide for the admission of “inevitable discovery” evidence.
Where appropriate, a good Texas defense lawyer always moves to
exclude evidence under both Texas and federal law.
Know Your Rights: Part I | 31
