Bedford, TX asked in Criminal Law, Civil Litigation, Civil Rights and Constitutional Law for Texas

Q: Is it unlawful to omit a warrant from discovery that was used to track individual with gps and pull them over ?

In a case where they used gps on a vehicle to track person wouldn’t prosecution have to make it available for the defense in discovery ? her suppression was denied but the warrant could have shown premeditation for the traffic stop ! Cop said I was going to pull you over anyway but lied on the stand

1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: No, not unless it was specifically requested and improperly withheld. The prosecution only has a duty to proactively provide the defense attorney copies of any exculpatory, mitigating, or impeachment evidence. Copies of other evidence are only provided if the defense attorney first makes a timely request. A wise defense attorney will also request the types of evidence that the prosecutor has an affirmative duty to proactively provide to the defense, because prosecutors are notoriously bad at deciding what is exculpatory, mitigating, or impeachment.

The defense attorney should also request notice of any evidence that the prosecution withheld due to the work product privilege (or another privilege.) Many prosecutors confuse confidential documents with privileged documents. The former is discoverable, the latter is not. The defense can request that the judge conduct an in camera review of any withheld documents to determine discoverability.

Also, it is bad form for a defense attorney to request copies of documents that are freely and publically available in the clerk's office. The prosecution could even object and fight about it, but that would be a waste of everyone's time. I mention this because a copy of the warrant and the affidavit in support of the warrant should be on file in the clerk's office.

Regarding the cop having a "premeditated" reason to pull the driver over... the topic of "pretextual stops" or "pretext stops" has been discussed at length by the various appeals courts. The short answer is that such stops are usually legal as long as there was some valid reason, even if it was not the officer's true motivation. To analyze your specific circumstances, your attorney compared what the evidence shows to both the laws and the 4th amendment appellate precedent for your jurisdiction. Defense attorneys do this type of work in preparation for a suppression hearing. If your attorney had noticed a fatal flaw with the officer's justification for the stop then the result of the suppression hearing may have been very different.

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