Good Faith Exception and Texas Art. 38.23

Hearing Strategy

The suppression hearing is the moment where good faith under article 38.23 vs. leon cases are won or lost. The judge hears live testimony, reviews documents, examines video, and makes credibility determinations that the appellate court will not lightly disturb. Counsel preparing for a warrant the State will defend with the good-faith exception should treat the hearing as if it were the trial — because in many cases it is.

Preparation centers on the officer. The officer's body-camera and dash-camera video, the offense report, the search-warrant affidavit if one exists, dispatch logs, and any pre-existing investigative documentation create the testable record. Inconsistencies between the officer's later report and the contemporaneous video are the single most productive cross-examination ground. The officer's training history, prior testimony in similar cases, and prior disciplinary record may be available through public-information requests and informal discovery.

The defense should also prepare its own witnesses where the facts permit. Civilians who observed the encounter, technical experts on any disputed technology (cell-site data, forensic imaging, video analysis), and the defendant if a strategic decision is made to testify can each shift the record. Texas defendants who testify at a suppression hearing do not waive Fifth Amendment protections for the trial itself under the standard rule, but the strategic implications must be considered carefully with counsel.

Article 38.23 Considerations

Texas Code of Criminal Procedure Article 38.23(a) provides a state-law exclusionary rule broader than the federal Fourth Amendment remedy. The Texas rule requires suppression of evidence obtained in violation of any law — not just the Constitution. The Texas rule also does not include a general good-faith exception; Article 38.23(b) creates only a narrow good-faith exception for warrants, not for warrantless conduct.

For cases involving a warrant the State will defend with the good-faith exception in Texas state court, the Article 38.23 analysis often produces a stronger suppression motion than the parallel federal analysis. Counsel should brief both standards and identify the specific statutory or constitutional provision the State conduct violated. Where the violation is purely statutory (a peace officer exceeded statutory arrest authority, an inventory search violated the agency's written policy, a search was conducted by a person without authority under the Code of Criminal Procedure), Article 38.23 may exclude what the federal rule would admit.

The most successful Article 38.23 motions identify the specific statute or rule violated, quote the violated provision, link the violation to the evidence the State will use at trial, and develop the factual record at hearing to support the suppression finding. Generic Fourth Amendment briefing often misses the Article 38.23 leverage that Texas practice provides.

The Leon Good-Faith Exception

United States v. Leon, 468 U.S. 897 (1984), established the good-faith exception to the Fourth Amendment exclusionary rule. Evidence obtained pursuant to a warrant later determined to be unsupported by probable cause is admissible if the officers acted in objectively reasonable reliance on the warrant. The exception's premise is that the exclusionary rule is designed to deter police misconduct, not to punish honest mistakes by magistrates.

Leon identifies four situations where the good-faith exception does not apply: (1) the affidavit contained materially false statements or recklessly inaccurate information (overlapping with Franks v. Delaware); (2) the magistrate wholly abandoned the neutral and detached role; (3) the affidavit was so lacking in indicia of probable cause that no reasonable officer could believe it established probable cause; or (4) the warrant was so facially deficient (in particularity or scope) that no reasonable officer could believe it valid.

Federal courts have applied Leon broadly. The defense's best path through Leon challenges typically focuses on the third and fourth categories — bare-bones affidavits or facially defective warrants — rather than disputing magistrate neutrality, which is rarely successful.

Texas Article 38.23 — No Across-the-Board Good Faith

The Texas exclusionary rule at Code of Criminal Procedure Article 38.23 differs from the federal rule in a critical respect. Article 38.23(b) provides a good-faith exception only for officers who acted in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause. Texas does not recognize a general good-faith exception for warrantless conduct or for non-warrant procedural violations.

The practical implication is that evidence obtained in violation of Texas statutory law — even if obtained in good faith — remains subject to suppression under Article 38.23(a). Federal good-faith doctrine does not save the evidence in Texas state court. Counsel should brief both Article 38.23(a) (which excludes evidence obtained in violation of any law) and Article 38.23(b) (which carves out a narrow good-faith exception for warrants only).

Common Texas statutory violations not covered by good-faith include: unauthorized peace-officer activity outside jurisdiction; statutory violations of inventory-search procedures; failure to comply with statutory chain-of-custody requirements; and procedural violations in administrative-search programs. Each provides a state-law exclusionary remedy that the federal good-faith doctrine cannot defeat.

Briefing Around the Good-Faith Exception

Defense briefing on suppression motions should anticipate the State's invocation of good-faith and address each prong directly. For federal cases, the defense should argue that one of the four Leon categories applies. For Texas cases, the defense should identify whether the violation is a warrant violation (potentially good-faith-protected under 38.23(b)) or a non-warrant statutory violation (not protected).

The "bare bones" attack on the affidavit is most effective when the affidavit relies on conclusory recitations rather than specific facts. An affidavit stating that the affiant "knows from training and experience that drug dealers store evidence in their homes" without specific facts tying this defendant to that pattern provides a strong target for the "no reasonable officer could believe it established probable cause" standard.

Facial-deficiency arguments under Leon's fourth prong work best when the warrant fails the particularity requirement of the Fourth Amendment. General warrants authorizing searches of "all premises" or "all records relating to" a specific person, without limits, are vulnerable. Counsel should compare the warrant against the particularity standard set out in Stanford v. Texas, 379 U.S. 476 (1965), and progeny.

The Narrow Article 38.23(b) Good-Faith Exception

Article 38.23(b) of the Texas Code of Criminal Procedure creates a narrow good-faith exception that applies only to warrant-based searches. The exception covers a peace officer who acts in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause. The exception is substantially narrower than the federal Leon good-faith doctrine.

The Article 38.23(b) exception requires three elements: (1) a peace officer must have executed the warrant; (2) the officer must have acted in objective good faith reliance; and (3) the warrant must have been issued by a neutral magistrate based on probable cause. All three elements must be satisfied; the absence of any one defeats the exception.

The "objective good faith" prong has been interpreted to require that no reasonable officer in the executing officer's position would have known the warrant was invalid. This is similar to the federal Leon objective-reasonableness standard but with the additional Texas requirement that the magistrate's probable-cause determination be supportable on the affidavit's face.

The exception does not extend to: warrantless searches (no warrant means no good-faith exception); searches under warrants supported by Franks-deficient affidavits (which fail the "based on probable cause" element); searches under warrants so facially deficient that no reasonable officer could have believed them valid; or searches that exceeded the warrant's scope. Defense counsel should examine each potential defect and brief why the narrow Article 38.23(b) exception does not apply.