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Excluding Criminal Evidence Texas-Style: Can Private Searches Poison The Fruit?

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Title: Excluding Criminal Evidence Texas-Style: Can Private Searches Poison The Fruit?
Author: Bubany, Charles P.
Abstract: The fourth amendment to the United States Constitution prohibits the use in a criminal proceeding of evidence seized illegally by government officials, but not evidence seized by private individuals. States may, however, provide greater protection for criminal defendants than the fourth amendment requires. This article discusses to what extent the exclusionary rule of article 38.23 of the Texas Code of Criminal Procedure excludes evidence obtained illegally by a private person. After an introduction, section one discusses the historical relationship between private searches and the fourth amendment. Section two provides the historical background of the statutory rule of exclusion in Texas, and section three notes that the Texas Court of Criminal Appeals has consistently avoided the issue whether evidence obtained unlawfully by a private individual is inadmissible under article 38.23. In section four, the authors reflect on possible applications of article 38.23 to various acts of private persons. The authors posit that article 38.23 could plausibly be construed as applying only to searches and seizures conducted by state law enforcement officers, or by private citizens acting in concert with or at the instigation of peace officers, or when Code provisions extend the law enforcement privilege to private citizens. Section four is divided into two parts: the first part discusses to whom article 38.23 should apply, and the second part discusses what evidence is inadmissible under article 38.23. A brief conclusion follows section four.
Description: Co-author: Former Texas Tech student, Perry J. Cockerell
Related Resources: Click to follow Hein Online link
Date: 1981

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