I’m glad we have Scot Henson (Grits for Breakfast) keeping an eye on those Texas prosecutors for us. Here he calls our attention to this thread on the TDCAA (Texas District and County Attorneys’ Association) forum about a federal prosecutor agent trying to justify not telling the defense the fact that narcotics officers removed the license plate from an informant’s car before the informant provided it to the accused. The officers then used the missing license plate as a pretext for a stop, saw the dope “in plain view” (really? The defendant was driving around with something that is obviously drugs in plain view?), asked for and received consent to search the car, seized the dopes (the drugs and the consenting driver), and “expanded on” the case.
The prosecutorDEA agent, “Bill” (mathisfield at yahoo dot com), is trying to justify concealing from the accused the fact that there is an informant in the case.
This search might well pass muster in Federal court (New York criminal-defense lawyer Scott Greenfield writes here about Whren v. U.S. and the pretext search doctrine), or it might, in the words of one of the TDCAA commentators, “make some really bad case law.” I haven’t researched the issue, but off the top of my head, I would argue that police-created probable cause, like police-created exigent circumstances, can’t justify dispensing with a warrant. Further, this is a deliberate attempt to circumvent existing law, like the one rejected by the Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004). Also, entrapment and sentencing entrapment are well-developed areas of the law; PC entrapment would not be a stretch.
The accused would have a better chance in Texas state court. In addition to the arguments that could be made in federal court, the accused would be protected by the Texas exclusionary rule, Article 38.23 of the Texas Code of Criminal Procedure, which says that no evidence obtained in violation of the constitution or laws of the State of Texas shall be admitted into evidence against the accused. If the police removed the license plate without the informant’s consent, they stole it. There may be a good argument that the discovery of this evidence resulted from that law violation. The State might then respond that they had the informant’s permission to remove the license plate, but in order to prove that (beyond a reasonable doubt, which is the standard for them to overcome a 38.23 challenge), they might have to bring the informant in to testify.
But the defense is not likely to know to raise these issues if the government conceals the fact that the police tampered with the car; this is the concealment that “Bill” is trying to rationalize. Whether the stop was legal or not, “Bill’s” prosecutorial respondents seem to agree with me that his rationalizations are no good — that the government has a duty to reveal that it orchestrated the probable cause.
[Edit: Scott points out that “Bill” is not a prosecutor but a DEA agent. This changes lots — it’s not prosecutorial skulduggery but DEA skulduggery (which should surprise nobody). The prosecutors are in the right here, telling the DEA agent that his rationalizations stink.]