An Unusual Exclusionary Rule Case

Wilson v. State, decided March 3 by the Texas Court of Criminal Appeals (the highest Texas court for criminal matters), involved two Texas statutes. The first is a Texas statutory exclusionary rule (Tex. Code Crim. Proc. § 38.23), first enacted in 1925:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case [unless the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause].

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

The second is Tex. Penal Code § 37.09, which provides,

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he … makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

(b) This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.

Now the facts: Ronald Wilson calls 911 “to report that he had found a man’s body”; a magazine clip is found near the body. The police suspect Wilson might have been the killer, and arrest Wilson on unrelated warrants. Detective Roberts questions Wilson, by getting a copy of a forensic report and then editing it to say, “Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson ….” (In fact, no legible fingerprints had been found on the clip.) Wilson then confesses.

The court concludes that the confession should have been thrown out, because Detective Roberts had violated the false document statute: He used a document with knowledge of its falsity and with intent to affect the investigation. Roberts didn’t try to dupe the investigators or officials; he didn’t, for instance, submit the fake document to a judge in order to get a search warrant (which would clearly have been a crime, and which would have invalidated the search warrant). He just duped the suspect with it (and note that lying to a suspect is generally permissible). But this did involve the use of a document to affect the investigation, by affecting the suspect’s willingness to confess.

Seems like a very interesting case to me, for several reasons. First, what’s the history behind the Texas statutory exclusionary rule? I wouldn’t have thought that such a defendant-friendly rule was likely to be legislatively enacted.

Second, as the court reads the statute, it would presumably be a crime for an undercover agent presenting a fake identification card in order to infiltrate a criminal ring (since that would be using a document or thing with knowledge of its falsity to affect the investigation), or engaging in a wide range of similar investigative deceptions. Maybe that’s right under the statute, but it’s certainly a pretty striking result.

Third, and independently of whether Detective Roberts’ conduct was a crime, is there some sort of limitation on the statutory exclusionary rule — like on the federal constitutional exclusionary rule — that limits it to crimes that violate the rights of the defendant? The principal dissent suggests that Texas caselaw has recognized such an exception:

[I]t is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury. Consequently, [s]tanding consists of some interest peculiar to the person individually and not as a member of the general public…. [T]he right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to anyone else.

And, the dissent argues, because “Section 37.09 ‘does not shield a person from having his liberty interests infringed, nor were appellant’s privacy or property interests implicated’ by any violation of Section 37.09,” appellant lacks standing to demand the exclusion of evidence gathered in violation of § 37.09. But I don’t know enough about the Texas law of standing under the statutory exclusionary rule to comment on which opinion has it right.

Five Justices were in the majority, one dissented on procedural grounds, and three signed the principal dissent. One of the three also wrote a separate dissent, which I think is unpersuasive. It argues that because “the detective’s educated guess as to the source of the prints turned out lucky: Appellant admitted shooting the victim,” “The detective’s report was not wrong because even though it stated that there were identifiable latent prints lifted when in fact there were no legible prints, Appellant did shoot the victim. And that fact makes it highly likely that the unidentifiable prints on the magazine were indeed his.” Yet this doesn’t make the report “not wrong” (or, as a statutory matter, not a “document, [presented] with knowledge of its falsity). It still falsely asserts that “Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson” (emphasis added), and falsely claims that this was a statement of the forensic examiner.

The decision can’t be appealed further, I think. The Texas Court of Criminal Appeals is Texas’s highest court for criminal matters; and the decision is on a matter of state law, so the U.S. Supreme Court lacks jurisdiction to consider it. But the Texas Legislature can certainly change the law going forward, though I don’t know whether it will.