JUSTICE BROWN delivered the opinion of the Court, in which Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice BOYD joined, and in which Chief Justice HECHT, Justice JOHNSON, and Justice LEHRMANN joined in all but Part IV.
In this civil-forfeiture case, police officers arrested Miguel Herrera and seized his Lincoln Navigator. After finding drugs during an inventory search of the vehicle, the state filed a notice of seizure and intended forfeiture under Chapter 59 of the Code of Criminal Procedure, claiming that the Navigator was "contraband" under the statute.
The court of appeals affirmed, holding that (1) article 59.03(b)
Texas law permits the state to obtain by seizure and forfeiture certain property qualifying as "contraband." See CODE CRIM. PROC. art. 59.02(a). To exercise its forfeiture power, the state must commence a forfeiture proceeding under the Code of Criminal Procedure. See id. art. 59.04. Though found in the criminal-procedure code, such forfeiture proceedings are distinctly civil in nature: "parties must comply with the rules of pleading as required in civil suits," id. art. 59.05(a), cases "proceed to trial in the same manner as in other civil cases," and "[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture," id. art. 59.05(b). If the state carries its burden and "the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state." Id. art. 59.05(e).
Yet while forfeiture proceedings are civil in nature, they frequently arise out of criminal proceedings in which property was seized. At first glance, therefore, they often appear to implicate the constitutional right against unreasonable searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. In the criminal-law context, this right is generally vindicated by the "exclusionary rule," which provides for suppression of evidence obtained in an unconstitutional search or seizure. But the application of this judge-made rule is usually confined by its rationale to the criminal-law context — "[t]he criminal is to go free because the constable has blundered." See People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.). It does not normally apply in civil cases.
In this case, the court of appeals did not address whether the exclusionary rule applies in civil-forfeiture proceedings, holding only that "the civil[-]forfeiture statute `does not authorize illegal police conduct,'" and thus that "`[r]egardless of whether the exclusionary rule applies, law enforcement agents cannot seize property if their actions leading up to the seizure are illegal.'" Lincoln Navigator, 2014 WL 4262636, at *4 (quoting State v. Thirty Thousand Six Hundred Sixty Dollars & no/100 ($30,660.00), 136 S.W.3d 392, 397 (Tex.App.-Corpus Christi 2004, pet. denied) (en banc)).
Deciding that law enforcement cannot illegally seize property subject to forfeiture is therefore not the end of the analysis. Even assuming that Chapter 59 prohibits unlawful seizure, concluding that an exclusionary rule (or some functional equivalent) applies in civil-forfeiture proceedings remains a necessary prerequisite to exclusion. Cf. Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." (emphasis added)). In other words, merely finding that the law enforcement agents' search (conduct) was illegal — or otherwise not in compliance with Chapter 59 — neither automatically nor inevitably compels the conclusion that exclusion is the proper remedy. Thus, after finding the officers' conduct to be illegal, the court of appeals should have asked whether exclusion was the proper remedy. In declining to do so, the court of appeals prematurely assumed that illegality equates to inadmissibility. See Lincoln Navigator, 2014 WL 4262636, at *4. The question of whether the court of appeals' assumption is nonetheless correct is now squarely before this Court.
"Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures and require the exclusion of evidence obtained in violation of that prohibition in criminal trials." $217,590.00, 18 S.W.3d at 636 (Abbott, J., concurring) (emphasis added). The Fourth Amendment prohibition has long been vindicated by the exclusionary rule: "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); see also Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In Texas, an expanded version of that common-law rule has been codified to ensure that "[n]o 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." CODE CRIM. PROC. art. 38.23(a) (emphasis added).
By its express terms, article 38.23 applies only to criminal cases. See id. But less clear is whether the constitutional exclusionary rule — as a common-law, judge-made rule — might have broader application. See Hardy, 102 S.W.3d at 129 n. 3. That rule, of course, appears nowhere in our state constitution, nor is it "a self-executing mandate implicit in the Fourth
To be sure, "[t]he wrong condemned by the [Fourth] Amendment is `fully accomplished' by the unlawful search or seizure itself," United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) — "the governments' use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution," Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Exclusion, therefore, does not protect the defendant against a constitutional violation, and it "is neither intended nor able to `cure the invasion of the defendant's rights which he has already suffered.'" Leon, 468 U.S. at 906, 104 S.Ct. 3405 (quoting Stone v. Powell, 428 U.S. 465, 540, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (White, J., dissenting)). Instead, "[t]he rule's sole purpose... is to deter future Fourth Amendment violations." Davis, 564 U.S. at 236-37, 131 S.Ct. 2419; see also Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("The rule is calculated to prevent, not to repair.").
"Despite its broad deterrent purpose," however, "the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons." Calandra, 414 U.S. at 348, 94 S.Ct. 613; see also Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ("Suppression of evidence ... has always been [a] last resort, not [a] first impulse."). Because the rule's "sole purpose" is to deter certain constitutional violations, the United States Supreme Court has carefully "limited the rule's operation to situations in which this purpose is `thought most efficaciously served'[—][w]here suppression fails to yield `appreciable deterrence,' exclusion is `clearly unwarranted.'" Davis, 564 U.S. at 237, 131 S.Ct. 2419 (original alterations and citations omitted). But deterrent value alone, while a "necessary condition for exclusion," is not a sufficient one. Hudson, 547 U.S. at 596, 126 S.Ct. 2159. Indeed, "the exclusionary rule has never been applied except `where its deterrence benefits outweigh its substantial social costs.'" Id. at 594, 126 S.Ct. 2159 (citation omitted). And the social costs are indeed substantial:
Davis, 564 U.S. at 237, 131 S.Ct. 2419 (citations omitted). While these social costs are most often framed in the criminal context, the underlying rationale extends to the civil context: the application of the exclusionary rule hampers some of the judiciary's essential functions — fact-finding and truth-seeking. See Leon, 468 U.S. at 907, 104 S.Ct. 3405 ("`Our cases have consistently recognized that unbending application
"Recognizing these costs, [the Supreme Court] ha[s] repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials." See Scott, 524 U.S. at 363, 118 S.Ct. 2014 (declining to apply rule in parole-revocation hearing); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (declining to apply rule in civil-deportation proceeding); Janis, 428 U.S. at 454, 96 S.Ct. 3021 (declining to apply rule in civil-tax proceeding); Calandra, 414 U.S. at 351-52, 94 S.Ct. 613 (declining to apply rule in grand-jury proceeding). In this case, as in those, the exclusion of admittedly relevant evidence imposes a substantial social cost. Here, the vehicle and the evidence found within it are indisputably relevant — if the state shows by a preponderance of the evidence that the vehicle was "used or intended to be used in the commission of" a felony under the Controlled Substances Act, then it is "contraband." See CODE CRIM. PROC. arts. 59.01(2)(B)(i) & 59.05(b). If it qualifies as contraband under Chapter 59, then it "is subject to seizure and forfeiture." See id. art. 59.02(a). Here, therefore, the "evidence sought to be excluded is ... reliable and ... the most probative information bearing" on the case; it "in no way [has] been rendered untrustworthy by the means of its seizure." See Powell, 428 U.S. at 490, 96 S.Ct. 3037 (citation and internal quotation marks omitted). Accordingly, application of the exclusionary rule in this context would result in exclusion of evidence central to "the truth-finding functions of judge and jury." See Payner, 447 U.S. at 734, 100 S.Ct. 2439.
And the deterrence rationale — at least as it relates to civil forfeiture in Texas — is marginal at best. Most importantly, the Fourth Amendment and state exclusionary rule together apply to broadly exclude illegally obtained evidence in the criminal-law context. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying U.S. CONST. amend. IV); CODE CRIM. PROC. art. 38.23. Thus, "local law enforcement official[s][are] already `punished' by the exclusion of [illegally obtained] evidence in [both] state ... [and] federal criminal trial[s], ... so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated." See Janis, 428
Herrera argues that the Supreme Court's decision in One 1958 Plymouth Sedan v. Pennsylvania, where the Court held that the exclusionary rule applied to a civil-forfeiture statute that was "criminal in nature," compels a different conclusion. See 380 U.S. 693, 697-98, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). We disagree. The forfeiture provision in Plymouth Sedan "requir[ed] the determination that the criminal law ha[d] been violated." See id. at 701, 85 S.Ct. 1246. This, in addition to the fact that the forfeiture could "result in even greater punishment than the criminal prosecution," led the Court to find that "the forfeiture [was] clearly a penalty for the criminal offense." See id. at 700-01, 85 S.Ct. 1246. The Court thus considered that civil-forfeiture provision "criminal," id.
Importantly, moreover, the legal and jurisprudential landscapes have changed
Finally, in Plymouth Sedan, the forfeiture proceeding's "object, like a criminal proceeding, [was] to penalize for the commission of an offense against the law." See 380 U.S. at 700, 85 S.Ct. 1246. Chapter 59 forfeitures, on the other hand, are expressly civil and non-punitive; indeed, "[i]t is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment." See CODE CRIM. PROC. art. 59.05(e) (emphasis added). Article 59.01(2)(B) defines as contraband items "used or intended to be used in the commission of" specific crimes. While this provision certainly relates to criminal activity, it does not require any proof that a person committed a crime — it only requires that the state prove by a preponderance of the evidence that the property is contraband. See id. arts. 59.01(2), 59.02(a), 59.05(b). In other words, "[a] [Chapter 59] civil[-]forfeiture action is an in rem proceeding against contraband," not a quasi-criminal proceeding against a person. See State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex.2004) (per curiam) (emphasis added); CODE CRIM. PROC. art. 59.05(d) ("A final conviction for an underlying offense is not a requirement for forfeiture under this chapter."). In light of the Court's more recent jurisprudence narrowly confining the exclusionary rule to those criminal cases where it has actual deterrent value, therefore, we hold that the exclusionary rule does not apply to Chapter 59 proceedings. In this context, because "suppression [of illegally-seized evidence under Chapter 59] fails to yield `appreciable deterrence,'" constitutional exclusion is unwarranted. See Davis, 564 U.S. at 237, 131 S.Ct. 2419.
In addition, Chapter 59 does not effectively import an exclusionary rule. Chapter 59 provides that "[i]f the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state." CODE CRIM. PROC. art. 59.05(e) (emphasis added). As already noted, "contraband" is "subject to... forfeiture," id. art. 59.02(a), and includes any property "used or intended to be used in the commission of ... any felony under [the] Texas Controlled Substances Act," id. art. 59.01(2)(B)(i). A forfeiture proceeding "proceed[s] to trial in the same manner as in other civil cases," and "[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture." Id. art. 59.05(b). While article 59.04 contains various notification and procedural requirements with which the state must comply before a judge allows the forfeiture proceeding to move forward, id. arts. 59.04(a)-(l), for forfeiture to be proper, the statute requires only that the state prove by a preponderance of the evidence that the
But, as Herrera points out, the statute also appears to limit how the state may seize the property to be forfeited. As is relevant here, article 59.03(b) provides that "[s]eizure of property subject to forfeiture may be made without warrant if ... the seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest." Id. art. 59.03(b)(4). The state argues that article 59.03 is "a grant of authority to peace officers, ensuring they are statutorily authorized to seize contraband in addition to their other powers." Therefore, it contends, article 59.03 does not speak at all to the elements of forfeitability. Herrera, on the other hand, argues that article 59.03 must be read to limit the officers' authority and "[t]he state is therefore required to show that the taking of property meets [article 59.03's] requirements to be labeled a `seizure' for forfeiture purposes."
As a preliminary point, we note a fundamental error in the court of appeals' analysis and holding. The court of appeals held that "[o]nce the trial court granted the motion to suppress, the State could not present any evidence regarding the sole matter that was at issue in the proceeding: whether the property was subject to forfeiture." Lincoln Navigator, 2014 WL 4262636, at *8. Thus, because the court of appeals held the stop leading up to the arrest was unlawful, it also found that the evidence found in the subsequent inventory search had to be excluded. See id. The court of appeals reads article 59.03(b) too broadly. Article 59.03(b) only concerns itself with the "[s]eizure of property subject to forfeiture"; it does not purport to limit officer conduct as to evidence obtained for the purpose of proving that property is subject to forfeiture. Therefore, regardless of article 59.03(b)'s potential limiting effect, it does not preclude the state's use of evidence — whether seized lawfully or not — to prove that property is subject to forfeiture.
That said, the question is whether the "may be made" language in article 59.03(b) indeed limits officer conduct. The state argues that "may" as used in the statute is permissive rather than limiting — and so that term truly means "may" rather than "may only." But reading "may" as not limiting tends to render the provision meaningless. If a peace officer may seize lawfully, but may also seize unlawfully, then articles 59.03(a) and (b) seemingly do nothing — in other words, if
But what then? Even if the state is not statutorily empowered to unlawfully seize contraband, (and it is not), what is the remedy for failure to comply with article 59.03(b)? Herrera argued in his motion to suppress — and argues now — that the remedy is exclusion. Yet what is the source of this exclusionary remedy? As discussed above, it is not the Fourth Amendment. The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here.
Of course, the Code of Criminal Procedure does contain an exclusionary rule, but that rule only applies in criminal proceedings. See id. art. 38.23(a). Had the legislature intended for an exclusionary rule to apply in civil-forfeiture proceedings, it certainly knew how to effectuate that intent. But Chapter 59 says nothing about exclusion, and "[t]o supply omissions transcends the judicial function." See Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 93 (2012) ("The principle that a matter not covered is not covered is so obvious that it seems absurd to recite it."). We therefore imply neither rights nor corresponding remedies unless the statute clearly intends "to confer individual rights upon a class of beneficiaries"; indeed, "where the text and structure of a statute provide no indication that [the legislature] intends to create new individual rights, there is no basis for a [remedy]." Cf. Gonzaga Univ. v. Doe, 536 U.S. 273, 285-86, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). While article 59.03(b) appears to limit officer conduct, there is no indication that the legislature intended to import the drastic remedy of exclusion (for either evidence or the property subject to forfeiture) for an act outside of such limitation.
Accordingly, we hold that Chapter 59 neither provides for exclusion of illegally obtained evidence nor requires the state to prove lawful seizure as a prerequisite to commencing a forfeiture proceeding. In addition to complying with the procedural requirements of article 59.04, the state's only burden is proving by a preponderance of the evidence that the property is subject to forfeiture, which includes proving probable cause as we have defined that term in the civil-forfeiture context. See $90,235, 390 S.W.3d at 293.
Lastly, in the interest of clarity, we note JUSTICE DEVINE's approach and explain why we choose a different path. Citing "the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more" — JUSTICE DEVINE would reverse solely on the legality of the search. Post, at 706 (citing VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex.2007)). We agree with JUSTICE DEVINE that judicial restraint counsels against deciding unnecessary issues. But neither our opinion nor JUSTICE DEVINE's decides issues "not necessary" to resolution-in resolving this case, one could decide either that the legality of the search does not preclude forfeiture or that the search was legal. Only in deciding both when one would be sufficient would we violate "the cardinal principle of judicial restraint." See Woods, 222 S.W.3d at 433. Neither opinion does so: we decide the former; he would decide the latter.
Our resolution of those questions introduces tension with JUSTICE DEVINE's approach. Admittedly, he articulates a viable path to resolving this case, and we do not take issue with his constitutional-criminal-procedure analysis. However, that analysis presupposes exclusion might be required if a search were conducted illegally. We hold definitively that it is not. Under our holding, trial courts (and this Court) considering civil-forfeiture proceedings in the future will not need to conduct a Fourth Amendment reasonableness inquiry
We have twice left open whether an exclusionary rule applies in civil-forfeiture proceedings, and today that question is again before us. We hold that neither the Fourth Amendment nor Chapter 59 provides for exclusion in Chapter 59 civil-forfeiture proceedings. Nor does Chapter 59 require that the state show lawful seizure as a procedural prerequisite to commencing a Chapter 59 proceeding. Because the court of appeals held otherwise,
Justice WILLETT filed a concurring opinion.
Justice DEVINE filed a concurring opinion, in which Chief Justice HECHT, Justice JOHNSON, and Justice LEHRMANN joined.
WILLETT, Justice, concurring.
The Court's opinion and JUSTICE DEVINE's concurrence offer alternative paths for reaching the same destination. I join the Court's opinion because of its comparative jurisdictional and practical advantages.
The jurisdictional advantage of the Court's approach is that it avoids crossing the constitutional line separating our jurisdiction from the Court of Criminal Appeals' jurisdiction. We and our sister high court fulfill substantively distinct roles: "The Court of Criminal Appeals is the court of last resort for criminal matters,... while this Court is the court of final review for civil matters[.]"
But not in today's case. The Court's opinion addresses the availability of an exclusionary rule, constitutional or statutory, in civil-forfeiture proceedings. I think it clear that we have jurisdiction to decide whether such a rule applies in civil proceedings. Any criminal law matters are only "incidental[]" to that question.
The Court's approach also entails two practical advantages. First, courts need never conduct the inquiry espoused by JUSTICE DEVINE's approach. That is, even if a search is unreasonable, evidence obtained pursuant to that search is admissible in civil-forfeiture proceedings. This is so because no exclusionary rule exists to prevent the admission of that evidence. By omitting the reasonableness inquiry, the Court's approach thus streamlines the civil-forfeiture proceeding in a way that JUSTICE DEVINE's approach does not. In addition, the Court's approach resolves an important legal question that JUSTICE DEVINE's approach would punt. If we decided only that the search in this case was reasonable, we would perpetuate uncertainty in the lower courts as to whether an exclusionary rule applies in civil-forfeiture
On both jurisdiction and practicality, however, I offer two additional caveats. As to jurisdiction, I have long championed a jurisdictional reboot — trading in our entire Rube Goldberg-designed judicial "system" for a revamped structure, including a unified high court.
That said, until the Legislature (1) initiates the amendment process to modernize our helter-skelter judicial system, and (2) addresses imbalances inherent in our civil-forfeiture regime,
For these reasons, I join the Court's opinion.
Justice DEVINE, joined by CHIEF JUSTICE HECHT, Justice JOHNSON, and Justice LEHRMANN, concurring.
This case concerns the State's petition for civil forfeiture of Miguel Herrera's Lincoln Navigator, in which officers found cocaine. The trial court and court of appeals denied the State's request. 494 S.W.3d 690, 692 (Tex.App.-Corpus Christi 2014). The court of appeals reasoned that the search of Herrera and his vehicle — leading to the discovery of narcotics — was unlawful, and therefore his vehicle could not lawfully be seized or subject to forfeiture. Id. at 692. Because I conclude the officers had reasonable suspicion to stop Herrera and search the driver's area of his vehicle, I believe the court of appeals' judgment must be reversed. Accordingly, although I do not reach whether illegally obtained evidence should be excluded in civil forfeiture proceedings, I concur in the Court's judgment.
On November 3, 2010, Texas Department of Public Safety Agent Stephen West learned of an upcoming drug deal. A confidential informant told Agent West that a Hispanic male would drive a white SUV with shiny rims to Rack Daddy's, a local pool hall. According to the informant — a criminal defendant — the driver would be carrying drugs and was usually armed. Neither Agent West nor his fellow officers had relied on this informant before, and Agent West admitted criminal defendants frequently cooperate to obtain judicial leniency. Agent West testified he believed the informant because he witnessed the informant set up the drug deal:
Later, when asked whether he corroborated what the informant said and why he trusted the informant, Agent West replied:
As Agent West explained, the unfolding events all corroborated the informant's statements. Agent West and several other officers promptly drove to Rack Daddy's, taking the informant with them. There, a Hispanic man drove a white Lincoln Navigator with shiny rims into the Rack Daddy's parking lot. According to one officer, "the way that this vehicle parked in the parking lot was not normal with the normal motoring public. It pulled up next to the bar as if it was fixing to do a transaction." After the informant identified the driver of the Lincoln Navigator as the other party to the drug deal, four of the officers approached the vehicle. Although one officer saw the driver make "a quick motion down towards the floorboard," another was further behind and said he could not see any furtive movements.
When the officers reached the vehicle, they patted the driver — Miguel Herrera — down and searched the driver's area for weapons. Finding a gun in a compartment under the center console, the officers handcuffed Herrera, searched his criminal history, and arrested him for being a felon in possession of a firearm. They also took his vehicle, performed an inventory search, and discovered cocaine, pills, and a second loaded magazine for the gun.
Pursuant to the Texas civil forfeiture statute — Chapter 59 of the Texas Code of Criminal Procedure — the State filed a petition seeking forfeiture of Herrera's vehicle to the State. In response, Herrera moved to suppress all contraband and other evidence seized from his vehicle. The parties agreed to carry the suppression issue with the trial on the merits of the forfeiture. Accordingly, at a bench trial, the State presented its case-in-chief. But, after the State rested, Herrera asked the Court to rule on its motion to suppress, arguing the evidence clearly established that the officers lacked reasonable suspicion to stop Herrera and search his vehicle.
The trial court granted Herrera's suppression motion and denied the State's forfeiture petition, reasoning that "law enforcement cannot seize property if their actions leading up [to] the seizure are illegal." The court's written findings emphasized the officers observed only innocent behavior and saw nothing corroborating the informant's predictions of criminal activity. For example, the court concluded the furtive movement seen by one officer "could just have easily been innocent activity." Although the trial court rejected the officers' interpretation and assessment of the facts, it did not question the credibility of their testimony regarding the facts.
The court of appeals affirmed the trial court's judgment. 494 S.W.3d at 692. It held the officers unlawfully searched Herrera's
Chapter 59 of the Texas Code of Criminal Procedure subjects contraband to seizure and civil forfeiture. TEX. CODE CRIM. PROC. art. 59.02(a). "Contraband" broadly encompasses "property of any nature" that is "used or intended to be used in the commission of ... any felony under" (among other statutes) the Texas Controlled Substances Act. Id. art. 59.01(2)(B)(i). A peace officer may seize contraband subject to forfeiture without a warrant in certain circumstances, such as when "the seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest." Id. art. 59.03(b)(4). The State and Herrera dispute whether the officers' search of Herrera's vehicle was lawful. They also question (1) whether Herrera's vehicle would be subject to civil forfeiture if the officers' search of the vehicle was unlawful, and (2) whether the Fourth Amendment exclusionary rule requires illegally obtained evidence to be suppressed in a civil forfeiture proceeding.
I believe the search was lawful, and accordingly I need not address whether contraband that is illegally seized is subject to forfeiture, or whether illegally obtained evidence must be suppressed in a civil forfeiture proceeding. See VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex. 2007) ("[T]he cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more-counsels us to go no further.") (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring)). Importantly, the question of whether the officers' search of Herrera's vehicle was lawful is a civil question, even though it requires reference to authority routinely cited in the criminal context. See TEX. CODE CRIM. PROC. art. 59.05(a), (b), (e) (confirming forfeiture proceedings are civil in nature); see also In re H.V., 252 S.W.3d 319, 323-30 (Tex.2008) (discussing Miranda and other authorities routinely cited in the criminal context in a juvenile case).
The trial court's decision to exclude evidence obtained as a result of a search is reviewed for an abuse of discretion. State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633 (Tex.2000). We defer to the trial court's fact findings if evidence supports them. Id. at 633-34. If so, then we must decide whether the court correctly applied the law to the facts. Id. at 634.
The Fourth Amendment requires that officers possess reasonable suspicion before temporarily detaining someone without a warrant. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.Crim.App.2011). The officer need not have probable cause, which requires the officer to "be able to pinpoint a particular penal infraction." Id. at 916. Reasonable suspicion instead only requires that an officer have "specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity." Id. at 914. This is an objective determination, which disregards the officers' subjective motives and requires an examination of the totality of the circumstances. Id. Thus, even actions that are innocent in and of themselves may create reasonable suspicion: "there may be instances when a person's conduct viewed in a vacuum, appears purely
Just as an officer may detain a person based on reasonable suspicion that "criminal activity may be afoot," so too may the officer frisk the person for weapons based on a reasonable belief that the person "may be armed and presently dangerous." Terry v. Ohio, 392 U.S. 1, 30 (1968). Such a search protects officers and those nearby, id. at 29, and may extend to the passenger area of a vehicle, Michigan v. Long, 463 U.S. 1032, 1049-50 (1983).
On the record before us, the totality of the circumstances supports the officers' reasonable suspicion to frisk Herrera and search the passenger area of his vehicle for weapons. The informant accurately stated that a white SUV with shiny rims, driven by a Hispanic male, would arrive at Rack Daddy's that night, and that the driver would be carrying drugs and was usually armed. While a criminal defendant, like the informant, who is making a quid pro quo trade does not enjoy a presumption of honesty and accuracy, a "tip" from the criminal defendant may nonetheless be coupled with other facts to conclude the "informant is credible or that his information is reliable." State v. Duarte, 389 S.W.3d 349, 356-58 (Tex.Crim.App. 2012). These facts need not be known by every officer; it is the cumulative information possessed by the cooperating officers that determines whether reasonable suspicion exists. Derichsweiler, 348 S.W.3d at 914.
Here, the record shows the officers possessed such facts. Agent West trusted the informant because the informant set up the drug deal in Agent West's presence. Although the court of appeals concluded Agent West merely testified "the source gave the officers information about Herrera when the source was in the presence of the police officers," 494 S.W.3d at 700 n.10, the record — as discussed above — clearly shows the source set up the transaction in Agent West's presence. Even the trial court understood that Agent West was present, stating orally (though not in its written findings) that:
Agent West's presence as the deal was set up, regardless of the level of detail Agent West observed, made it reasonable for him to credit the informant's statements.
Indeed, the unfolding events all corroborated the informant's statements. That night, the officers watched a Hispanic male drive a white SUV with shiny rims into the Rack Daddy's parking lot, and the informant identified the driver as the person who was to show up with drugs. The driver parked in an area known for drug sales, and one officer saw him make a furtive movement toward the floorboard as they approached. Accordingly, the officers reasonably concluded that Herrera was, had been, or soon would be "engaged in criminal activity." Derichsweiler, 348 S.W.3d at 914. The officers had reasonable suspicion to temporarily detain Herrera.
The parties do not dispute that if the officers' search of the passenger area of Herrera's vehicle for his gun was lawful, then the subsequent arrest of Herrera and inventory search of his vehicle were also lawful. Based on the record before us, the contraband and evidence found in Herrera's Lincoln Navigator were lawfully obtained.
The trial court abused its discretion by granting Herrera's motion to suppress the contraband and other evidence found in his vehicle and denying the State's forfeiture petition. The contraband and other evidence were legally obtained. Accordingly, I concur in the Court's judgment remanding the case to the trial court for further proceedings.