38.23 suppression in Texas tampering prosecutions

What Article 38.23 actually says

Article 38.23(a) of the Code of Criminal Procedure provides that 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.¹

The phrase “any provisions of the constitution or laws” — not just Fourth Amendment provisions — is what distinguishes 38.23 from the federal exclusionary rule. The Texas rule reaches violations of state statutes, agency rules, and even contractual obligations in certain contexts, where the federal rule would not.

Read Article 38.23 at statutes.capitol.texas.gov/Docs/CR/htm/CR.38.htm.

No good-faith exception in Texas

The federal exclusionary rule recognizes a good-faith exception under United States v. Leon, 468 U.S. 897 (1984). The Texas Court of Criminal Appeals has rejected the Leon good-faith exception under Article 38.23 in McClellan v. State.²

The Texas rule provides that even if law enforcement acted in good faith on a defective warrant, the evidence is still excluded if the warrant was deficient. The narrow statutory exception at Article 38.23(b) — which protects officers who reasonably rely on warrants “based on probable cause” — has been interpreted narrowly.

The practical effect in tampering cases: a warrant-based search of a vehicle, residence, or electronic device that produced the tampering predicate (the “tampered” item) can be suppressed for warrant defects that the federal courts would forgive.

Penal Code § 37.09 — what the State has to prove

Penal Code § 37.09 criminalizes tampering with or fabricating physical evidence. The base offense is third-degree felony under § 37.09(a)–(c). The State must prove that the defendant: (a) knew that an investigation or official proceeding was pending or in progress; and (b) altered, destroyed, or concealed any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding.³

The recurring fact pattern in tampering prosecutions is the swallow-or-toss case: a defendant who is stopped or approached by police is alleged to have ingested or thrown away a small amount of suspected contraband. The State’s case usually depends on the officer’s observation of the alleged tampering and any recovered substance or wrapper.

Suppression theory 1 — the stop itself was illegal

The tampering charge is parasitic on the initial police encounter. If the stop or approach was illegal — no reasonable suspicion, no consent, no other lawful basis — the entire encounter and any conduct observed during it can be suppressed under Article 38.23.

For tampering cases, the suppression analysis works through the following questions:

1. Was the encounter a stop or an approach? A consensual approach generally does not require any justification; a Terry-type investigative detention requires reasonable suspicion.
2. If a stop, was the reasonable suspicion supported? An officer’s articulated facts — what was actually observed — must support an objectively reasonable suspicion of criminal activity.
3. Was the stop’s scope expanded? An expansion beyond the original justification (a traffic stop’s scope extended to a drug investigation) requires independent reasonable suspicion for the expansion.
4. Was there an arrest before probable cause? If the encounter escalated to an arrest before probable cause existed, the arrest is unlawful and any evidence obtained as a result — including the alleged tampering — can be suppressed.

Suppression theory 2 — statutory violations by law enforcement

Article 38.23 reaches violations of state statutes that the federal rule does not. Specific examples in tampering cases:

Body-camera statutes

Texas Code of Criminal Procedure Article 2.139 and related rules require many officers to activate body-worn cameras during certain encounters. A failure to activate, where activation was statutorily required, can support a 38.23 challenge to evidence that should have been recorded.

Booking and identification protocols

Statutory protocols for booking, identification, and chain of custody — if violated — can support 38.23 challenges. The Texas Department of Public Safety crime-lab protocols also generate statutory and regulatory hooks.

Custodial interrogation rules

Code of Criminal Procedure Article 38.22 governs the admissibility of custodial statements. Statements obtained without statutory warnings or recordings can be excluded under 38.23 as well as 38.22.

Probable cause to arrest

Texas Code of Criminal Procedure Articles 14.01–14.06 govern warrantless arrests. An arrest outside the statutory authorization triggers Article 38.23.

Suppression theory 3 — the “tampering” was the lawful response to an unlawful stop

This theory is doctrinally contested but appears in some Texas tampering cases. The argument is that an unlawful stop creates a situation in which the defendant’s response — discarding an item — is itself a product of the illegality and should be suppressed as the fruit of the poisonous tree.

The doctrinal counterargument is that abandonment is a voluntary act that breaks the causal chain. Texas courts have addressed abandonment in the search-and-seizure context but the application to tampering-charge predicates is fact-specific.

The strongest version of this theory is in cases where the alleged tampering occurs while the defendant is being unlawfully restrained or pursued by police. If the officer’s conduct was itself unlawful and the “tampering” was the defendant’s reaction to that unlawful conduct, the entire sequence may be subject to suppression.

Practitioner record-building for the suppression motion

The 38.23 motion in a tampering case is built on the officer’s own paperwork and recordings.

1. Body-worn camera footage from every officer at the scene. The defense should subpoena footage broadly — including officers who arrived after the alleged tampering — because cross-angle views often contradict the lead officer’s narrative.
2. In-car video (MVR) from every vehicle on scene.
3. Dispatch records, including the original call narrative and CAD log.
4. The arrest report and any supplemental reports.
5. Probable-cause affidavits supporting any warrant.
6. The officer’s training records relevant to the type of encounter (traffic stop, consent search, etc.).
7. Any 911 audio or witness statements.

The Article 38.22 suppression analysis runs in parallel for any custodial statement.

The Article 38.23(a) jury-charge instruction

If the suppression motion is denied or if material fact disputes about the legality of the police conduct remain after the suppression hearing, the defense is entitled to an Article 38.23(a) jury charge. The instruction requires the jury, before considering certain evidence, to find that the evidence was not obtained in violation of any state or federal law.

The Texas Court of Criminal Appeals has set out the prerequisites for the 38.23(a) jury charge: (1) an issue of fact must be raised by the evidence; (2) the fact must be material to the legality of the contested conduct; and (3) the contested fact must be affirmatively disputed.

For tampering prosecutions, the recurring 38.23(a) jury-charge scenarios involve:

• Whether the officer’s articulated suspicion was supported by what was actually observed.
• Whether the alleged tampering was observed during a lawful or unlawful detention.
• Whether the defendant’s consent to a search was voluntary or coerced.
• Whether the officer activated body-worn cameras as required by law.

The 38.23(a) jury charge gives the defense a second chance after a denied suppression motion. The instruction is binding on the jury and produces an acquittal if the jury finds the contested fact in the defense’s favor and the resulting evidence was the State’s case.

Recent doctrinal developments in Texas search-and-seizure law

The Texas Court of Criminal Appeals continues to develop search-and-seizure doctrine, and several recent decisions affect tampering-related suppression analyses.

Pretextual stops

Texas has followed the federal rule that an officer’s subjective motivation does not invalidate an otherwise lawful stop. The objective basis controls. However, certain pretextual practices — particularly extended detentions beyond the original justification — remain reviewable under both Texas and federal precedent.

Consent searches

Texas continues to require that consent be voluntary under the totality of the circumstances. The State’s burden is to prove voluntary consent by clear and convincing evidence in some postures.

Body-camera doctrine

Texas appellate courts have addressed the consequences of missing or destroyed body-camera footage. While not always dispositive, the absence of expected footage can support a Brady-type argument and sometimes a 38.23 exclusion.

Carpenter and digital location data

Carpenter v. United States, 585 U.S. 296 (2018), continues to inform Texas analysis of cell-site location information. Search warrants are required for substantial CSLI access, with implications for tampering cases that rely on cell-phone evidence.

Search incident to arrest

The search-incident-to-arrest doctrine continues to be litigated, particularly around the scope of vehicle searches incident to arrest and the timing of the search relative to the arrest.

What to do if you are facing a § 37.09 tampering charge

The 38.23 suppression motion is often the highest-leverage move in a tampering case because the case typically depends on the officer’s observation of the alleged tampering. If the underlying encounter is suppressed, the State’s case usually does not survive.

The pre-motion tasks are:

1. Discovery — subpoena all video, dispatch records, and reports.
2. Reconstruct the timeline from the officer’s own paperwork.
3. Identify the specific provision allegedly violated (Fourth Amendment, Texas Constitution Article I § 9, Article 14, Article 38.22, body-cam statutes).
4. Brief the motion with the specific provision violated and the legal effect on the tampering predicate.
5. Prepare for the suppression hearing as the primary evidentiary engagement of the case. The officer’s testimony at the hearing will lock the State into a position that constrains its trial strategy.