Legal Question

Successfully Suppressing a Search Warrant in Federal Court

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As published in the Voice

The Facts

Mary Beth Harrell attorneyMy court-appointed client, Jermaine Jones (JJ), a career offender, had been indicted in the U.S. District Court for the Western Dis­trict of Texas, Waco Division, for possessing just shy of 46 grams of crack cocaine and a loaded .45 handgun. Four Deputy U.S. marshalls (DUSMs) and three Texas Department of Public Safety Criminal Investigation (DPS CID) agents arrested JJ on local state warrants for felony possession of a controlled substance and money laundering. The agents found the drugs, gun, and a wad of cash in his apartment while conducting a protective sweep for dangerous persons after his arrest. Okay, he’s done, you might say. Let’s pull out the sentencing guidelines and do the math. He’s looking at a lot of time.

Stay with me. It gets interesting.

Prior to executing the warrants, the DUSMs and DPS CID agents conducted surveillance of the apartment where JJ and his girlfriend, Marcy, were known to reside. Marcy was named on the lease but JJ wasn’t. JJ’s silver Mitsubishi car was parked out front, and the license plate came back to JJ’s mom, who owned it. While conducting surveillance, the agent in charge called his confidential informant (CI). The CI told him if the Mitsubishi is there, then JJ’s inside. Agents did not observe any drug trafficking activity; no one was going to and from the apartment.

After a while, agents saw Marcy leave the apartment, drive to Popeye’s, pick up two meals and two drinks, then return to the apartment. Agents did not speak to her, did not detain her, and let her re-enter the apartment. A few minutes later, Marcy left the apartment again, got in the car and started to drive off. One marshall and one agent got into their respective cars and blocked her exit. The agent in charge then interviewed Marcy. Marcy didn’t have any warrants. She told the agent that JJ was in the apartment, gave the front door key to the agent and permission to use it to enter the apartment. Marcy was detained outside the apartment.

With guns drawn, the agents and marshalls approached the apartment door and opened it with the key. JJ was not in the front room. The agent called JJ by name to come to the door. It took a minute for JJ to respond. No doubt he was rather surprised and needed a second or two to think it through. He wasn’t a novice nor a fool, so he slowly emerged unarmed from the back bedroom, shirtless and carrying a pair of shorts with his hands in the air. He cooperated and complied with their orders. He was arrested at the front door. The agent searched JJ and found a small amount of marijuana in the pocket of his shorts. They did not find any drugs or weapons on his person or within his immediate reach, nor in plain view in the front room. They did not ask JJ for permission to search the apartment.

The agents and marshalls then conducted a “protective sweep” of the entire apartment for “dangerous persons.” The agents looked underneath the bed in the back bedroom, where they observed the drugs and cash. Then the agents asked Marcy for permission to search the apartment. Marcy refused. The agent in charge prepared an affidavit for a search warrant, which was granted by the local district judge. The agent returned to the apartment with the search warrant and confiscated the drugs, gun, and money from under the bed.

The search warrant affidavit stated: The agents went to the apartment to execute the state warrants, conducted surveillance, saw JJ’s Mitsubishi, watched Marcy leave the apartment, drive to Popeye’s, return with “two meals and two drinks,” and enter the apartment. She was later detained when she exited the apartment again and returned to the vehicle. The agent questioned her, and Marcy confirmed that JJ was in the apartment and provided her apartment key. Agents detected the odor of marijuana inside her vehicle. Agents used her key to enter the apartment, JJ emerged from the back right bedroom, “was taken into custody near the door,” agents searched the shorts in JJ’s hand and found a useable amount of marijuana in the pocket. Officers entered the residence, “conducted a protective sweep for other persons,” looked under the bed in the back right bedroom, observed a ziplock bag containing cash and a quantity of suspected crack cocaine, and observed marijuana residue on the nightstand.

As I read the search warrant affidavit and looked at the apartment photos taken by the agents, my instincts told me that the protective sweep didn’t pass the smell test. So I called Marcy’s retained lawyer. He told me that the protective sweep was allowed and would survive my challenge. I wasn’t so sure, so I called my friend, Stan Schwieger, an appellate lawyer who’s way smarter than I am. Did I have a viable motion to suppress the sweep, the search warrant, and the contraband? Stan wasn’t sure either, but he believed it was worth pursuing. Stan and I spent several hours sorting through the facts and identifying legal issues. Stan re-acquainted me with Wayne LaFave. As you may recall from your law school days, LaFave literally wrote the book on search and seizure.

I don’t know any trial lawyer who enjoys researching and writing a brief in support of a motion to suppress, including me. So I knuckled down to the painful task, thinking it an exercise in futility, but you gotta do what you gotta do. After all, my client was a career offender.

Stan’s assistance was invaluable. He edited my motion and brief for logic, substance, style, and form. He’s my Yoda. If you don’t have a friend or mentor like Stan, find one real quick.

The Brief

A. Protective Sweep of Persons

A protective sweep for dangerous persons incident to arrest may be a permissible exception to the Fourth Amendment’s prohibition against unreasonable search and seizure, depending on totality of circumstances—including the scope and duration of the sweep. The Supreme Court has placed limits on the circumstances, scope, and duration of the sweep. First, law enforcement must have entered legally and for a legitimate law enforcement purpose. Second, officers must have a reasonable, articulable suspicion that the area to be swept contains (a) a person, and (b) that person poses a danger to those on the scene. Third, the protective sweep must be limited to a cursory inspection of only those places where a person may hide, not a full search of the premises. Finally, officers must conclude the sweep once they have dispelled their reasonable suspicion of danger, and they may not continue the sweep after they are no longer justified in remaining on the premises.Maryland v. Buie, 494 U.S. 325, 334 (1990); United States v. Mata, 517 F. 3d 279, 285 (5th Cir. 2008).

1. The facts in this case do not justify a “protective sweep for persons” in Defendant’s residence.

A “protective sweep” made in connection with an arrest will be upheld in circumstances such as the following: The location is a major narcotics distribution or manufacturing point, or police believe that others within may be engaging in more serious conduct at that location, or the arrestee is unlikely to be a solo participant, or that others are seen or heard running into other parts of the premises, or it is located in a violent or dan­gerous neighborhood. Mata, 517 F. 3d at 287, 288; United States v. Charles, 469 F.3d 402 (5th Cir. 2006).

Here, surveillance did not disclose any articulable facts that could give rise to the reasonable belief that any other individuals, besides Marcy and JJ, were residing in the apartment or that criminal activity was being conducted in the apartment either before or during the arrest. The officers were there to arrest JJ for Hill County warrants, where the criminal conduct was alleged to have occurred. JJ resided in McLennan County. The dep­uty U.S. marshall observed Marcy exit the apartment alone and return alone with only two meals. Marcy cooperated with the lead agent and disclosed that JJ was in the apartment alone. She gave her front door key to the lead agent and permission to enter. JJ surrendered to officers at the door and was arrested at the front door. There was no suggestion that the apartment was in a dangerous or violent neighborhood. The agent offered no articulable or specific facts particular to JJ in the search affidavit to justify the protective sweep for persons. The agent did not articulate facts giving rise to exigent circumstances that would require or permit law enforcement to conduct the prior protective sweep.

2. While a search of the place adjoining the arrest is per­mitted, the search of Defendant’s entire residence, and spe­cifically the back bedroom, exceeded the place from which an attack could be launched against officers.

The Supreme Court held that police may “as a precautionary matter and without probable cause or reasonable suspicion look in closets or other spaces immediately adjoining the place of ar­rest from which an attack could be launched.” Buie, 494 U.S. at 334. In this case, the agent and other officers arrested JJ at the front door. Officers then traveled down a hallway to a back bedroom and looked under a bed, which did not immediately adjoin the place of arrest. It is difficult to imagine how an attack could be launched against officers by an individual presumably hiding under a bed in a back bedroom.

3. While officers may search Defendant’s person and the area within his immediate control for a weapon or contra­band, the protective sweep exceeded the area within the Defendant’s con­trol.

Courts have held officers may conduct a search incident to arrest to prevent the arrestee from accessing a weapon or destroying evidence. But the search is limited to the arrestee’s per­son and to the area within his immediate control. United States v. Green, 324 F.3d 375, 378 (5th Cir. 2003)(citing Chimel v. California, 395 U.S. 752, 763, (1969). In this case, the deputy U.S. marshall searched JJ’s person then took him outside the apartment. The space under the bed in the back bedroom was not under the JJ’s immediate control. The protective sweep for persons in the apartment and the area under the bed was a pretext to search for contraband. It was only after the baggie was found under the bed that officers asked Marcy for consent to search, and when that was refused, they sought a search warrant.

B. Sufficiency of the Search Warrant Affidavit

1. If the Court finds the “protective sweep for persons” in this case violated the Defendant’s Fourth Amendment’s rights, then the untainted information remaining in the affidavit would be insufficient to show probable cause to search the Defendant’s residence.

If it is shown that some of the information in the search affidavit presented to the magistrate was acquired in a prior illegal search, the warrant is nonetheless valid if it could have been issued upon the untainted information in the affidavit. United States v. Hearn, 563 F.3d 95, 103 (5th Cir.2009) (stating that it is sufficient that probable cause is shown by affidavit after the illegally obtained information was purged); United States v. Veillette, 778 F.2d 899, 904 (1st Cir.1985)(holding that the police should not be put in a worse position than they would have been in had they not violated the law).

In this case, the search affidavit stated: “Affiant and other officers entered the residence and conducted a protective sweep for other persons. The deputy U.S. marshall looked for persons under the bed in the right back bedroom and observed a ziplock bag containing U.S. currency an (sic) unknown quantity of crack cocaine,” and observed “marijuana residue” on the bedroom night stand.

The only other information cited in the affidavit was a “useable amount of marijuana” found in the right front pocket of JJ’s denim shorts, “which he carried in his hand” when he was searched incident to arrest at the front door. That information alone would not have been sufficient to show probable cause to search the residence. If the tainted information is removed, the court must decide whether the magistrate would have issued a warrant given only the lawfully obtained information.

“This is not a case where the tainted information which is included in an affidavit along with untainted information is trivial or insignificant or merely cumulative. It is a case where the tainted information is of such major importance that its absence creates grave doubt that the warrant would have issued without it. If we are to uphold the fundamental purposes of the Fourth Amendment and the exclusionary rule by which it is implemented, it is my belief that the practice indulged in by the officers in this case must be condemned and the tainted evidence upon which appellants were convicted suppressed.”United States v. Nelson, 459 F.2d 884, 895 (6th Cir. 1972).

2. Information gained during the illegal, warrantless pro­tective sweep for persons prompted the officers to seek a search war­rant.

The Fifth Circuit has noted: “[U]nlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the warrant, the core judicial inquiry before the district court on remand is a subjective one: whether information gained in the illegal search prompted the officers to seek a warrant to search. In the best of all possible worlds, of course, there will be statements or other evidence directly probative of motivation or effect. But in the usual case, in which direct evidence of subjective intent is absent, a court must infer motivation from the totality of facts and circumstances.” United States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992).

The protective sweep for persons under the bed was a pretext to search for contraband. It was only after the baggie was found under the bed that officers asked Marcy for consent to search, and when that was refused, they sought a search warrant. In this case, the information obtained in the illegal search did motivate the officers to seek the warrant.

3. The magistrate did not consider the affidavit purged of tainted evidence.

The Fifth Circuit Court went on to find “we seriously doubt that it is appropriate to apply the deferential, substantial basis standard of review to the issuing magistrate judge’s decision when the magistrate judge never considered the warrant affidavit purged of tainted information.” Restrepo, 966 F.2d at 969.

4. Independent Source Doctrine

When announcing the “fruit of the poisonous tree” doctrine, the Supreme Court limited the exclusionary rule to evidence the police could not trace to some independent and lawful source. Wong Sun v. United States, 371 US 471, 488 (1963). The burden of proof is on the prosecution to establish an independent source. United States v. Leveringston, 397 F.3d 1112, 1115 (8th Cir.2005)(“When the government seeks to rely on the independent source doctrine in a case involving a later-obtained warrant, it should present specific evidence that officers were not prompted by allegedly unlawful activity to obtain the warrant, and should seek a finding on that point”—not done here).

My brief did not address “inevitable discovery” because the facts did not support it. The agents did not obtain consent to search after the protective sweep. Neither JJ nor Marcy made incriminating res gestae statements after the search was performed and the drugs were found—isn’t that amazing?

The Hearing

On cross, I asked the agent in charge (to the best of my recollection—this is not a transcript):

ME: Prior to entering the apartment, did you ask Marcy if there was anyone else in the apartment besides JJ?
ME: But you asked her if my client was in there?
ME: You testified that you’ve been doing this for 16 years, correct?
ME: Marcy had just left the apartment, so wouldn’t you normally ask that question before you enter the apart­ment?
ME: For officer safety?
ME: After all, she was cooperating and gave you her key and permission to enter, right?
ME: So odds are, she would tell you the truth if you asked her who else was in the apartment, right?
ME: But you didn’t ask?
AGENT: I guess I forgot.

Let me say that the Judge did not appear to be favorably impressed by his answers.

ME: You previously testified—when asked by the prosecutor—that you arrested my client at the door, didn’t you?
AGENT: It was inside the apartment.
ME: It wasn’t at the door?
AGENT: No, it wasn’t at the door. It was near the door but not at the door.
ME: How far from the door?
AGENT: Maybe 30 feet.

The Judge interrupted my cross and challenged the agent. The Judge told the agent that he had previously testified—when an­swer­ing the prosecutor’s question—that he arrested the defendant at the door.

AGENT [to the Judge]: No, I don’t think I said that, Judge. I don’t think so. It was inside the apartment.

The Judge challenged the agent again: “No that’s not what you said on your earlier testimony. You said you arrested him at the door.”

I asked a few more questions. Then Judge interrupted me to tell me he was granting my motion to suppress. Nice.

The Court’s Opinion

The Judge granted my motion to suppress and found:

After entering a residence to execute an arrest warrant, of­fi­cers may conduct a limited search for their own protection.United States v. Blevins, 755 F.3d 312, 325 (5th Cir. 2014); United States v. Jackson, 596 F.3d 236. (5th Cir.), cert. denied, __ U.S. __, 131 S.Ct.90, 178L.Ed.2d247 (2010). This “protective sweep” doctrine allows government agents, without a warrant, to conduct a quick and limited search of premises for the safety of agents and others present at the scene. U.S. v. Albarado, 555 Fed.Appx. 353, 357 (5th Cir. 2014), cert. filed No. 14-8787 (Aug. 6, 2014). Evidence found in plain view while conducting the security sweep is admissible, but evidence recovered beyond the scope of the protective sweep is not. Id.; United States v. Virgil, 444 F.3d 447, 451 (5th Cir.), cert. denied, 549 U.S. 879, 127 S.Ct. 365, 166 L.Ed.2d 138 (2006). A protective sweep may occur even after a suspect is arrested. Id.

To be constitutionally valid, (1) “the police must not have entered (or remained in) the home illegally and their pres­ence within it must be for a legitimate law enforcement purpose”; (2) “the protective sweep must be supported by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to those on the scene”; (3) “the legitimate protective sweep may not be a full search but may be no more than a cursory inspection of those spaces where a person may be found”; and (4) the protective sweep “may last . . . no longer than is necessary to dispel the reasonable suspicion of danger, and . . . no longer than the police are justified in remaining on the premises.” U.S. v. Roberts, 612 F.3d 306, 311 (5th Cir.), cert. denied sub nom., Booth v. U.S., __ U.S. __, 131 S.Ct. 839, 178 L.Ed.2d 570 (2010)(quoting United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004)(en banc), abrogated in part on other grounds by Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)). In the present case, the officers possessed no reasonable, articulable suspicion that the apartment harbored any other individuals who would pose a danger to those on the scene.

        Accordingly, Defendant’s Motion to Suppress is GRANTED as to the evidence obtained from the apartment.

The Disposition

The U.S. Attorney dismissed the case against my client.

Don’t be Afraid of Challenging the Show-up Id

By | Blog, Featured Blog, Legal Question, Show-up Identification | No Comments

As seen in Voice for the Defense on line

Like more than a few of my court-appointed felony clients, Julius was angry, offensive, demanding, and adamantly refused any plea deal. He was 43 years old but looked 60, African-American, unemployed, short, stocky, dark-skinned with very short black hair. Julius was a career felon who was bad at his job. He sat in jail on the charge of attempted burglary of a habitation. He allegedly kicked in the door of a home he may have thought was unoccupied, but ran away without entering when he discovered that someone was indeed at home. He could not make bond because he had a blue warrant for violating his parole. He was on parole for burglary of a habitation, and had four prior convictions for—you guessed it—burglary of a habitation. He told me he did not do it. He yelled at me when I tried to discuss the evidence with him. He insisted he was not guilty.


The prosecutor’s offer was 9 years TDC. Not much of an offer, you might say? I agree. But of course, she threatened to use the prior convictions to enhance it and then stack it. He rejected the offer and demanded a trial.


The witness was a 15-year-old boy, Drew, enrolled in the sixth grade, and at home alone on a school day at the time of the alleged break-in. Just a few red flags popped up. The questions ask themselves, right?


Drew called 911. I completed a records request for the 911 call. Drew reported that he had been asleep at home around 10:00 a.m. when someone began banging on the front door. He took his time responding. When he got to the door it flew open and then back, and the man ran off when he saw Drew. Drew said he saw a heavyset, bald, 30–40ish black man with dark skin, standing about 5’7”, wearing blue pants and an orange shirt, no hat, no eyeglasses, no facial hair. Drew did not see the shoes. One might say that was a surprisingly detailed description, right? When police arrived they observed a shoe print on the badly damaged front door, which obviously had been kicked in. They took photos of the print and later tried to match it up with my client’s shoe. When that did not work in their favor, they said the shoe print was too partial to make a match.

Meanwhile, police were also searching the neighborhood for a suspect matching the 911 dispatcher’s description. The police stopped Julius, who was walking a few blocks over from the home. Julius was wearing a white shirt and dark pants but no jacket. We requested the booking photo, which showed Julius was not bald but had very short black hair. The police would later testify that Julius was the first black man they stopped and the only black man they saw walking in the neighborhood. He did not run from the police, and he produced ID. He carried a wallet, watch, key, and cell phone. He told officers he was going home. Julius was detained in a motel parking lot and allowed officers to pat him down, but he was agitated, angry, and mouthy.

Drew clearly told the 911 dispatcher that the suspect was wearing an orange “shirt.” He said it twice. But somehow the shirt morphed into an orange “jacket” when the police wrote up their reports. The police noted that it was 50 degrees on a January morning. When asked why he was not wearing a jacket, Julius told police he did not need one. The police did not agree. The police concluded that Julius must have ditched his orange jacket on the run, so they searched the neighborhood. They found a red, black, and white jacket, and red New York Yankees baseball hat sticking out of a drainage culvert up the road. The police decided that was the jacket the suspect must have been wearing.

The police put Drew in the back of a patrol car and drove him over to the parking lot to conduct a show-up identification of the suspect. My client was the only handcuffed black man surrounded by four or five white police officers in the parking lot. The police actually conducted a drive-by show-up. They drove Drew slowly past Julius, but they did not stop the patrol car. One officer held up the red, white, and black jacket next to Julius while Drew was driven past him. Drew immediately identified Julius as the person who kicked in the door of their home.

According to the police report, Julius “kept pronouncing his innocence” and “protesting his innocence,” but Julius refused to waive his rights and make a statement—so he must be guilty.

The police recorded their interview with Drew at the police department. He did not appear, look, or sound disabled or mentally retarded. We learned he was also in alternative school and had skipped school that day. Drew told the police that he was “face to face” with the guy who kicked in the door. The police then asked him a leading question: “Was it a red coat or orange?” Drew answered: “It looked orange to me, but it turned out red.” He wrote a statement in which he now described the suspect as wearing a “bright orange coat.” This differed from what he told the 911 dispatcher. Drew wrote down, “They took me to the hotel and showed me him and his jacket and that was him.”

While the police were out of the room, Drew told his mom that he was scared when he heard the banging at the door because he thought it was Mr.______, and he thought “they were coming to get me.” His mom understood what he was referring to, but we had no idea.

During the recorded interview, Drew’s mother, Diane, calls her father, Donald, and tells him to come down to the police station to see if it is the same guy he had seen loitering outside the home a few weeks ago. Diane tells the police officer that her dad can pick the guy out of a photo lineup. The police arrange a photo lineup for Donald. We later learned that Donald had served as a police officer in the same department for 20 years and retired. The photo lineup, results, and interview with Donald were not in the discovery I received. The prosecutor told me she did not have it.

Did I ask the prosecutor why Drew, a 15-year–old, was enrolled in sixth grade? Yes, and she did not know.

I did meet with the prosecutor to discuss the conflicts and contradictions in the statements and evidence. Did the facts seem to cry out for a dismissal? I certainly thought so. She was unmoved—take it to trial and risk an enhanced, stacked sentence or take the deal.


Drew’s out-of-court identification of my client did not pass the smell test with me, and it was the linchpin to the state’s case. Other lawyers and case law tended to support the opinion that the show-up ID would survive my challenge on a motion to suppress. While my client had nothing to lose, I wanted to be certain that my motion had a valid legal and good-faith basis.


I almost always start my research in The Texas Criminal Lawyers Handbook, and this case was no exception. I have found it to be an invaluable tool over the years. The Handbook is authored by Robert K. Gill and Mark G. Daniel. I have heard Mark speak at many a worthwhile TCDLA seminar.

Of course, when challenging the show-up ID, the first question is, Who has the burden of proof?

The defendant has the burden to show the identification is unreliable by clear and convincing evidence. Delk v. State, 855 S.W.2d 700 (Tex. Crim. App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993); Bond v. State, 29 S.W.3d 169 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

If the defendant meets this burden, then the in-court identification is inadmissible unless the state can prove by clear and convincing evidence that the identification was of independent origin. Brown v. State, 64 S.W.3d 94 (Tex. App.—Austin 2001, no pet.); United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000). The test is whether, considering the totality of the circumstances, the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Id., citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Lo­serth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998).

The Court of Criminal Appeals has identified “five non-exclusive factors” that can be used to assess the reliability of an identification procedure: (1) the opportunity of the wit­ness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Loserth v. State, supra citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

When applying those factors to our case, the prosecutor could argue that Drew was paying serious attention to the person who had been banging on the door of his home and then kicked it in, had sufficient time to view him, made a fairly detailed description, was certain it was my client, and less than a half-hour lapsed between the incident and the identification. Unfortunately, the police officers mangled Drew’s detailed description to match their conclusion that Julius had to be the culprit.

As we all know, appellate courts love to throw in a “bal­ancing test.” The Houston appellate court concluded that some suggestiveness is always present in a show-up identification but must be balanced against: (1) the desirability of allowing the witness to view the suspect immediately after the commission of the offense while his memory is fresh and accurate; (2) the fact that the quick confirmation or denial of identification leads to the release of innocent suspects (but not in my client’s case); and (3) the fact that the release of innocent suspects frees the police to continue the search for the perpetrator of the offense (ditto). Louis v. State, 825 S.W.2d 752 (Tex. App.—Houston [14th Dist.] 1992, pet.ref’d).

And then there is the time-worn favorite “totality of circumstances” analysis using the following factors: (1) the opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness’ level of certainty; and (5) the time between the crime and the confrontation. Id.

And finally, there is always the Texas “two-step” analysis used to determine the admissibility of an in-court identification: (1) whether the identification procedure was impermissibly suggestive; and (2) if the identification was the result of a suggestive procedure, whether or not it gives rise to a very substantial likelihood of irreparable misidentification, examining the totality of the circumstances. Delk v. State, supra.


When viewing the facts in light of the case law analysis, I felt we had a shot. So I filed a plain vanilla Motion to Suppress Identification and a Motion to Suppress Evidence Obtained by Illegal Detention and/or Illegal Arrest of the Defendant. The odds on a district judge granting a suppression motion and letting a career offender walk are slim to none, but we had nothing to lose. As is often preached at TCDLA seminars, pretrial hearings offer the opportunity for additional discovery—and the witnesses’ answers can be used against them at trial.


Despite my best efforts, I could not discover why 15-year-old Drew was still in the sixth grade, so I issued a subpoena duces tecum for school records to be brought to the hearing. The responding school official told me that Drew had serious disciplinary problems for fighting with other students, banging his fists on desks and walls, and violated his probation multiple times with positive UAs and refusing to attend class. Drew liked to smoke weed. Drew was not retarded. Drew was an unrepentant truant of average intelligence. He was in alternative school and would age out of the school system at age 18.

The prosecutor and I were both surprised when Drew showed up to the hearing in orange scrubs and shackles. He had been transported from the juvenile detention facility. His mom, Diane, and grandfather, Donald, were not happy with me because they believed I was forcing him to testify.

I had subpoenaed almost every officer who wrote a report in the case. The shift supervisor was not happy with me. She was there too. My paralegal overheard the supervisor complaining: “She’s court-appointed. Why is she doing this?”

I did issue a subpoena duces tecum to the officer who presented the photo array to Donald. I had not received a copy of the photo-array or report. During the police interview, Donald verified that just a couple of weeks earlier he had seen a black man standing outside the front door of Drew’s house. When Donald approached the man, he claimed he had the wrong house and left. Donald believed that the man was casing the house for a break-in. Donald did not identify my client in the photo array. In fact, he identified someone else.

The prosecutor asked me if she could take Drew on direct examination and I agreed. She spoke to Drew very carefully and very slowly—as if he were retarded. She navigated him through the events of that day. She tried to reconcile a red, white, and black jacket with an orange shirt. She sought to characterize the red in the jacket as tomato red because apparently tomato red is the new orange. She sought to show that though Drew may have had enough time to see the person at the door, he may have missed the other colors in his jacket. The hat could have been in his pocket.

By the way, Drew was slow to answer the door because he was afraid that it was the truancy officer. He did not want to return to juvenile detention.

Finally, the prosecutor asked him if the person he saw at the door was in the courtroom.

His answer: “No.”

I was very busy writing but stopped as his answer registered. I looked up at the judge. She looked at me. We looked at Drew then at the prosecutor then at the courtroom deputies.

It was a long pause.

The prosecutor repeated her question.

He repeated his answer.

The prosecutor informed the court that she would not ask Drew to make an in-court identification. After additional testimony from police officers, the judge denied my motion to suppress the evidence obtained by illegal detention or arrest.

After the hearing, the prosecutor informed me that she was going to send the hat and coat to the DPS lab for DNA analysis. If it came back with my client’s DNA, she would enhance and not waive a trial. I told her that I had already warned my client that she would do just that. In fact, I had anticipated that the prosecutor would threaten to take that action. I did warn my client prior to the hearing, and he still rejected the plea offer. He insisted he had not worn the jacket or hat—they were not his.

The DPS lab did not obtain any DNA samples from the hat or coat.

The prosecutor filed her dismissal.