Motion to suppress evidence of the arrest based on lack of probable cause based on videotape as presented in



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1Cause No. __________
STATE OF TEXAS § IN THE _______________ COURT

§

V. § COURT DESIGNATION



§

*** § _______________ COUNTY, TEXAS




MOTION TO SUPPRESS EVIDENCE OF THE ARREST BASED ON LACK OF PROBABLE CAUSE BASED ON VIDEOTAPE AS PRESENTED IN WHITELEY V. WARDEN, WYOMING STATE PENITENTIARY, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971)
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ***, the Defendant in the above styled and numbered cause and files his/her motion to suppress evidence based on the lack of evidence of probable cause as shown in the videotape and in support thereof would show the Court as follows:

I.

Probable cause means that there is a reasonable grounds for belief of guilt. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).



II.

The videotape is the best evidence of the state of the Defendant at the time of the arrest, having been made shortly after the arrest. The videotape, itself, shows a sober person.


III.

Both the physical and mental faculties of the Defendant do not show that their was sufficient evidence to support and independent judgement of probable cause, which is what is required, of course, for an arrest without a warrant. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971). Therefore, the arrest and continued custody should not have taken place and, absent a warrant, which would not have passed judicial muster, the Defendant should have been released from custody following the videotape. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854,(1975).

IV.

The legal requirements for an arrest without a warrant are just as stringent as the requirements for an arrest with a warrant. In other words, the evidence that would have been presented before a neutral magistrate must have convinced a neutral magistrate that there was reasonable ground for belief of guilt. Brinegar, 338 U.S. 160 (1949). It is submitted that a reasonable magistrate, looking at this videotape, would not have issued a warrant. Whiteley, 401 U.S. 560 (1971).



V.

The State argued in Whiteley that the Court should employ a less stringent standard for reviewing a police officer's assessment of probable cause as a prelude to a warrantless arrest than a Court would employ in reviewing a magistrate's assessment as a prelude to issuing an arrest warrant or a search warrant. Whiteley, 401 U.S. at 566. The Court in Whiteley, rejected that position, noting that prior Supreme Court cases had also rejected that decision and that the reason for its rejection is "both fundamental and obvious: less stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant." Id.

VI.

The law in Texas regarding warrantless arrests is "more stringent than the demands of the U.S. Constitution," since warrantless arrests must be specifically authorized by statute. Witt v. State, 745 S.W.2d 472, 476 (Tex. App.—Houston [1st Dist.] 1988, rev. ref'd); Stevenson v. State, 780 S.W.2d 294 (Tex. App.—Tyler, 1989) (Statutes governing warrantless arrests are to be strictly construed and the burden is on the State to show that warrantless arrests come within the statutory exception).



VII.

For purposes of making a warrantless arrest under Tex. Code Crim. Proc. art. 14.03(a)(1), arrest of the suspect based on events as consistent with innocent activity as with criminal activity is unlawful. Hoag v. State, 728 S.W.2d 375 (Tex. Crim. App. 1987).

VIII.

It is the objective analysis and not the subjective intent of the police that is controlling with regard to the determination of whether or not there is probable cause for an arrest under Texas law. Johnson v. State, 722 S.W.2d 417 (Tex. Crim. App. 1986) (overruled on other grounds). Moreover, the Court is not bound by the officer's subjective conclusion about whether probable cause to arrest exists, when they independently scrutinize the objective facts. Johnson v. State, 751 S.W.2d 926 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd).



IX.

Although facts known to the officer at the time the Defendant was placed in the County Jail might have raised suspicions concerning him, if they do not constitute probable cause, then the arrest is illegal. Sweeten v. State, 693 S.W.2d 454 (Tex. Crim. App. 1985).


WHEREFORE PREMISES CONSIDERED, the Defendant respectfully prays that the Court

find there was not probable cause to arrest the Defendant for driving while intoxicated and order that all evidence seized as a result of the unlawful arrest of the Defendant be suppressed and not be admitted into evidence upon the trial of this case.

Respectfully Submitted,

____________________________________

Attorney Name

State Bar Number

Address

City, State, Zip

Phone

Fax
Attorney for Defendant



***


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