SRC-JBJ S.B. 662 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 662
76R1927 PEP-FBy: West
Criminal Justice
4/14/1999
As Filed


DIGEST 

Currently, the Fourth Amendment to the U.S. Constitution prohibits an
officer from obtaining evidence through an illegal seizure.  Courts have
argued what constitutes an illegal seizure, using various doctrines to
support their justification for determining a legal or illegal seizure.
One doctrine, the "pretext doctrine," provided that a seizure cannot be
based on a person's race, sex, religion, or other improper reason.
However, the doctrine lost prominence in state and federal courts, and
finally was eliminated by the supreme court because judges discerned that
the mental state of a police officer based on subjective inquiry, rather
than objective standards, proved to be too difficult to ascertain.  Now, an
officer may constitutionally seize a person based on race or sex, as long
as other law permits the seizure. As a result of these seizure powers
granted to an officer, a potential exists that an officer may abuse his or
her power, which lacks reasonable suspicion or probable cause.   

The doctrine can be reinstated if the state legislature authorizes a
pretext doctrine supported by a "reasonable officer" test.  The reasonable
test offers an objective standard for the doctrine: a legal seizure is
based not on whether an officer could have taken the action, but, whether
under the same circumstances, a reasonable officer would have taken the
same action in the absence of the invalid purpose.  S.B. 662 would restore
the pretext doctrine and authorize pretextual seizures under judicial
review 

PURPOSE

As proposed, S.B. 662 restores the pretext doctrine and brings pretextual
seizures back under judicial review. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 38.23, Code of Criminal Procedure, by adding
Subsection (c), to establish that evidence obtained as a result of a
warrantless arrest or detention is validly obtained for purposes of this
article only if a reasonable law enforcement officer under the same
conditions would have arrested or detained the individual. 

SECTION 2.  Makes application of this Act prospective.

SECTION 3. Effective date: September 1, 1999.

SECTION 4.Emergency clause.