Miles v. State of Texas: Does the Court of Criminal Appeals Want to Bring Vigilantes Back?

To those not familiar with Texas law, we actually have some criminal procedure provisions that offer broader protections to citizens accused of crimes than the Federal Constitution. Take, for example, searches and seizures conducted against people. The Fourth Amendment's protections have only been extended to protect against action taken by the government or its agents. Article 38.23, on the other hand, specifically provides that: "[n]o 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." (emphasis added)

Well, so what's the big deal? With some very limited exceptions, this meant that if a private citizen decides to act illegally and break the law, any evidence they obtained and turned over to the police would be inadmissible in a criminal prosecution against the accused. Think of it as a disincentive for citizens that discourages them from taking the law into their own hands (and for law enforcement for encouraging them to do so to subvert the Fourth Amendment) by punishing them in the same fashion as police officers who ignore the Constitution.

That is, until Miles v. State. A group of tow trucks went in hot pursuit of a hit-and-run (and likely drunk) driver through the streets of Houston, violating numerous traffic laws, and eventually blocking the driver in to wait for cops. The driver was later convicted of DWI and unlawfully carrying a weapon. To trap the suspect, the tow truck drivers followed him the wrong way on down busy city streets in order to prevent him "from harming himself or anyone else." The court turned the above rule on it's head, holding that "if an officer may search or seize someone under the particular circumstances, then the private citizen's equivalent conduct does not independently invoke the Texas exclusionary rule, and the evidence obtained by either the officer or the private person may be admissible."

A concurring opinion written by Judge Price pointed out the problematic reasoning of the CCA, even though Judge Price concluded that the defendant had no standing to invoke 38.23 since he suffered no harm (other than the conviction). He rightly points out that the majority twists and turns the plain language of 38.23 to the point of flatly ignoring it in order to reach it's conclusion. Price writes:

"Even assuming that the legislative intent was to prohibit any evidence-gathering conduct on the part of private citizens that would be prohibited to police officers, it does not necessarily follow that the legislature also intended to implement the converse proposition: that any evidence-gathering police conduct that we would regard as lawful under the circumstances we would also permit a private citizen to engage in. Simply stating the converse proposition does not establish that it is true. Ours is not the federal exclusionary rule; the core rationale of Article 38.23 is not just to deter police misconduct, but to deter any and all misconduct perpetrated in the name of gathering evidence. Police officers and private citizens are not "equivalent" in the kinds of conduct they can lawfully engage in; there are some kinds of otherwise-unlawful behavior that a police officer may undertake in the lawful execution of his official duties that are simply not available to private citizens. If it is objectively reasonable for a police officer to break the traffic laws in hot pursuit of a dangerous suspect, then should it always be deemed equivalently reasonable, and hence permissible, for a private citizen to do the same? Did the Legislature really mean to encourage that? Does the Court?"

(Allow me to add: "Since we're already engaged in the mental gymnastics that the majority must use to reach this conclusion, do we give vigilantes qualified immunity to protect them from any tort claims that may arise from their conduct?")

The State should not encourage people to take the law into their own hands. This should be readily apparent, but some folks just can't seem to figure it out. (This is not to suggest that spraying cars with water is the equivalent a racially-based lynching. But I also don't think it's too much of a stretch to see a fight or a shooting come out of such an incident.)