In a Motion to Suppress, a trial judge can base his
pre-trial ruling on the contents of an unsworn police report.[Ford v.
On October 21, 2009, the Texas Court of Criminal
Appeals reversed the judgment of the Court of Appeals and affirm the trial
court's judgment concluding that art. 28.01, Ãƒâ€šÂ§ 1(6), does not mandate that all
information considered by a trial judge must be accompanied by affidavit or
10-1-1. Ford v. State, No. PD-1753-08, 2009
WL 3365661 (Tex.Crim.App., 10/21/09).
Facts:Appellant filed a pre-trial motion to
suppress evidence concerning his arrest, alleging that Deputy Halcomb searched
his truck without a warrant or probable cause. Appellant testified at the
hearing for the limited purpose of showing that his arrest was made without a
warrant. The prosecutor did not cross-examine appellant, and he offered no live
testimony. Instead, the prosecutor offered only Deputy Halcomb's unsigned,
undated, and unsworn police report and gave a verbal summary of its contents to
support his position that the officer had probable cause to search appellant's
truck. Appellant objected to the admission of the report (1) as a violation of
the hearsay rule; (2) because there was no sponsoring witness; and (3) as a
violation of his right to confrontation under the Sixth Amendment. The
prosecutor responded that hearsay is admissible in a suppression hearing; a
suppression hearing deals only with preliminary issues; and the confrontation
right attaches only at trial. The trial judge overruled appellant's objections
and admitted the report into evidence. Based upon the information in that
report, he denied appellant's motion to suppress. The trial judge made findings
of fact and conclusions of law, the most important of which reads,
That the report submitted by Deputy Halcomb and
entered into evidence is credible, and the Court accepts as true the submission
of his offense report regarding his observations of the defendant and his
conversations with the defendant.
Following the denial of his motion to suppress,
appellant pled guilty to possession of less than two ounces of marihuana. The
trial judge deferred the adjudication of his guilt and placed him on community
supervision for twelve months.
On appeal, appellant argued that the trial judge erred
in denying his motion to suppress because the arrest report was inadmissible.
The court of appeals agreed, holding that in a suppression hearing, Texas Code
of Criminal Procedure article 28.01, Ãƒâ€šÂ§ 1(6), permits the trial court to
determine the merits of a motion based on the motion itself, upon competing
affidavits, or upon live testimony. The court of appeals concluded that only
those three specific methods are permissible:
In this case, the State failed to accompany
its proffered documentary evidence with either some form of affidavit or
live, sponsoring witness testimony. It is not enough for the State to
ignore the requirements of Article 28.01(6), and merely read a police
report to the trial court and then tender it-unsigned, undated, and
unverified-as was done here.
Because the arrest report was the only evidence the
State offered to establish probable cause to search appellant's truck, the court
of appeals concluded that there was no basis for the trial court to deny
Appellant's motion to suppress.
Held:Reversed Court of Appeals, and affirmed
County Court's judgment (Evidence was sufficient, denying motion to suppress
Opinion:May a trial judge base his pre-trial
suppression ruling on the contents of an unsworn police report? In an
appropriate situation, he may.
A hearing on a pre-trial motion to suppress is a
specific application of Rule 104(a) of the Texas Rules of Evidence.
This rule, based on longstanding common-law principles, explicitly states that a
trial judge is not bound by the rules of evidence in resolving questions of
admissibility of evidence, regardless of whether those questions are determined
in a pre-trial hearing or at some time during trial. Both common law
principles and Rule 104 provide the trial judge with an important gatekeeping
role. They ensure that all evidence admitted at trial is relevant, reliable, and
admissible under the pertinent legal principles. Although the present
case does not deal with expert or scientific evidence, the underlying goal of
Rule 104(a) is the same in a motion to suppress evidence: The trial judge makes
a legal ruling to admit or exclude evidence based upon the relevance and
reliability of the factual information submitted by the parties. The
question in this case, then, is whether the trial judge used sufficiently
reliable information, in the form of the unsworn offense report, when he ruled
upon the merits of appellant's motion to suppress.
The court of appeals' holding turned on its reading of
art. 28.01, Ãƒâ€šÂ§ 1(6), of the Texas Rules of Criminal Procedure. That rule reads as
(6) Motions to suppress evidence-When a
hearing on the motion to suppress evidence is granted, the court may
determine the merits of said motion on the motions themselves, or upon
opposing affidavits, or upon oral testimony, subject to the discretion
of the court.
In Hicks v. State, we reiterated our plain
language approach to statutory analysis:
In Boykin v. State, we held that ÃƒÂ¢â€šÂ¬Ã‹Å“[w]here the
statute is clear and unambiguous, the Legislature must be understood to mean
what it has expressed, and it is not for the courts to add or subtract from such
a statute.' Therefore, when interpreting a statute, we ordinarily give effect
to that plain meaning. But we have acknowledged an exception to this rule:
where application of a statute's plain language would lead to absurd
consequences that the Legislature could not possibly have intended, we
should not apply the language literally. If the plain language of a statute
would lead to absurd results, or if the language is not plain but rather
ambiguous, then it is appropriate to seek the aid of extra textual factors to
develop a reasonable interpretation of a statute.
Thus, we must look first to the specific words in art.
28.01 to determine its meaning. The statutory rule states that a motion to
suppress may be resolved by considering different possible means of acquiring
information. The rule does not state that the motion shall be or must be
resolved by these specific means. There is no suggestion in the plain
language of the rule that this is an exclusive list. Instead, the
statutory language supports the notion that a motion to suppress is an informal
hearing in which the trial judge, in his discretion, may use different types of
information, conveyed in different ways, to resolve the contested factual or
legal issues. The State argues that the structure and language of the statute
points to the conclusion that the legislature intended to give the trial court
latitude to hold a non-traditional, informal hearing that need not necessarily
include witnesses, testimony, or even formal evidence.
Appellant argues that the plain language of the
statute lends itself to the narrow construction used by the court of appeals. He
cautions that a permissive reading of the statute will render it without any
real effect and asks us to conclude that the legislature intended the statute to
establish a mandatory, not discretionary, procedure for conducting suppression
Because the legislature carefully used the term may
throughout art. 28.01 when it intended discretionary acts and procedures and
used the terms must or shall when it intended mandatory acts or procedure,
we conclude that the legislature intended to establish a discretionary and
informal procedure for the trial court to conduct suppression hearings under
art. 28.01, Ãƒâ€šÂ§ 1(6). The legislature suggested, but did not require, several
different methods to determine the merits of a motion to suppress, including
information and facts set out in the motion itself, affidavits, or oral
testimony. In sum, under the Boykin plain language analysis, we
conclude that art. 28.01 means what it says when it uses the permissive term
may: A trial judge may use his discretion in deciding what type of information
he considers appropriate and reliable in making his pre-trial ruling.
We conclude that the trial judge did not abuse his discretion in relying upon an
unsworn hearsay document. Deputy Halcomb's offense report could have
been, but was not required to be, accompanied by an affidavit stating that this
is a true and accurate copy of my offense report.
Finally, we must determine whether the trial court
abused his discretion by relying upon this particular unsworn hearsay document.
If the source and content of the hearsay document were unreliable, then the
trial court did not adequately perform his gatekeeper function. In this case,
we conclude that Officer Halcomb's offense report contains sufficient indicia of
reliability to serve as the factual basis for the trial court's ruling. The
offense report includes appellant's name, correct offense date, and specific
information that coincides with the same basic information to which appellant
testified at the hearing. Furthermore, it is a criminal offense to
file a false police report. Although the trial judge was clearly not
required to believe the information contained within Deputy Halcomb's report,
the document itself is a government record and of a type that a trial judge may
consider reliable in a motion to suppress hearing, even though it is hearsay and
is not admissible at a criminal trial on the merits.
In United States v. Matlock, the Supreme Court
held that in a suppression hearing the judge should receive the evidence and
give it such weight as his judgment and experience counsel. And if there is
nothing in the record to raise serious doubts about the truthfulness of the
statements themselves, then there is no apparent reason for the judge to
distrust the evidence. Several federal cases have also held that a trial court
may rely upon unsworn documentary evidence in a motion to suppress hearing.
Art. 28.01, Ãƒâ€šÂ§ 1(6), comports with Matlock. The
trial court may conduct the hearing based on motions, affidavits or
testimony, but there is nothing in the statute to indicate that it must.
It is merely an indication that such hearings are informal and need not be
full-blown adversary hearings conducted in accord with the rules of evidence.
Significantly, appellant did not argue that Deputy
Halcomb's offense report was, in any way, unauthentic, inaccurate, unreliable,
or lacking in credibility. Appellant did not contest the accuracy of the facts
within that offense report; he argued only that the report could not be
considered without the shepherding wings of a sponsoring witness or affidavit.
Had appellant complained about the reliability, accuracy, or sufficiency of the
information supporting the trial judge's ultimate ruling on the motion to
suppress, this would be a very different case. The prosecutor was
perfectly willing to sponsor Deputy Halcomb's testimony if he arrived in time
for the hearing, but the trial judge, hearing no complaint about the accuracy of
the report, did not wait. He was prepared to rule on the motion based on the
deputy's offense report. Although it is better practice to produce the witness
or attach the documentary evidence to an affidavit, art. 28.01, Ãƒâ€šÂ§ 1(6), did not
create a best evidence rule that mandates such a procedure in a motion to
suppress hearing. Thus, we cannot say that the trial judge abused his discretion
in considering and relying upon Deputy Halcomb's offense report, which he found,
in the absence of any objection to its specific contents, to be credible and
Conclusion: The Court of Appeals was mistaken in
concluding that art. 28.01, Ãƒâ€šÂ§ 1(6), mandates that all information considered by
a trial judge must be accompanied by affidavit or testimony. Accordingly, we
reverse the judgment of the court of appeals and affirm the trial court's