By Deandra Grant, J.D., M.S. (Pharmaceutical Science), ACS-CHAL Forensic Lawyer-Scientist
The vast majority of gun crime cases in Texas begin the same way: law enforcement finds a firearm during a search. The search might happen during a traffic stop, at a residence, in a vehicle, or on the defendant’s person. The officer writes in the report that the firearm was found in plain view, or that the defendant consented to the search, or that exigent circumstances justified a warrantless entry. The prosecution then charges the defendant with unlawful carrying (§46.02), felon in possession (§46.04), possession of a prohibited weapon (§46.05), or weapons in a prohibited place (§46.035) and the entire case rests on the firearm that was recovered during that search.
If the search was unconstitutional, the firearm is suppressed. If the firearm is suppressed, the case collapses. This is why the suppression hearing can be the most important event in most gun crime prosecutions and why your defense attorney’s understanding of search-and-seizure law matters more than almost anything else.
Texas defendants have a significant advantage in suppression litigation that most people, and many attorneys, do not fully appreciate. The Texas exclusionary rule under Code of Criminal Procedure Article 38.23 is broader than the federal exclusionary rule, and it provides protections that the federal rule does not. This article explains how suppression works in Texas gun cases, the specific search contexts where gun evidence is most vulnerable to challenge, and the Texas-specific rules that give the defense an edge.
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The Texas Exclusionary Rule: CCP Article 38.23
Under the federal exclusionary rule established in Mapp v. Ohio (1961), evidence obtained in violation of the Fourth Amendment is generally inadmissible. But the federal rule has been significantly narrowed over the past four decades by good-faith exceptions. Under United States v. Leon (1984) and its progeny, evidence obtained through a defective warrant is still admissible if the officers relied on the warrant in good faith. Under Herring v. United States (2009), evidence obtained through negligent police bookkeeping errors is admissible because the exclusionary rule’s purpose (i.e. deterring deliberate police misconduct) is not served by suppressing evidence obtained through honest mistakes.
Texas rejects these limitations. Article 38.23(a) of the Code of Criminal Procedure provides:
“No 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.”
This language is mandatory and absolute: “No evidence…” “shall be admitted.” There is no good-faith exception in Article 38.23. If the search violated the law (any law, state or federal) the evidence is inadmissible. Period. A Texas officer who relies in good faith on a defective warrant has still conducted an unlawful search under Article 38.23, and the evidence is suppressible. An officer who makes an honest mistake about the law has still violated the law, and the evidence is suppressible.
Article 38.23(a) also goes beyond constitutional violations. It excludes evidence obtained in violation of any provision of the laws of Texas. This means that a statutory violation during the search, even one that would not rise to the level of a constitutional violation, can trigger exclusion. For example, if an officer conducts a search that complies with the Fourth Amendment but violates a Texas statutory requirement for the manner of executing a search warrant under CCP Chapter 18, the evidence may still be suppressed under Article 38.23.
The Article 38.23(a) Jury Instruction
Article 38.23 contains another provision that is unique to Texas and exceptionally powerful for the defense. Under subsection (a), if there is a factual dispute about how the evidence was obtained, the defendant is entitled to have the jury (not just the judge) decide whether the evidence was obtained unlawfully. The jury is instructed that if they believe, or have a reasonable doubt, that the evidence was obtained in violation of the law, they must disregard it.
In practice, this means that even if the judge denies the pretrial motion to suppress, the defense can relitigate the search issue before the jury at trial. If there is a factual dispute (ex. the officer says the defendant consented, the defendant says he didn’t; the officer says the gun was in plain view, the defendant says the officer opened a closed container) the defendant gets an Article 38.23 instruction. This is a second bite at the apple that does not exist under federal law.
Where Gun Crime Evidence Is Found — and Where It’s Vulnerable
Traffic Stops and the Terry Framework
The most common source of gun crime evidence in Texas is the traffic stop. An officer pulls a vehicle over for a traffic violation (or for reasonable suspicion of criminal activity), and during the encounter, a firearm is discovered. The legality of the gun evidence depends on a chain of legal questions, each of which is a potential suppression point:
Was the initial stop lawful? Under Terry v. Ohio (1968) and the Texas Court of Criminal Appeals’ decisions applying it, an officer needs reasonable suspicion of a traffic violation or criminal activity to initiate a stop. If the stop was pretextual (i.e. the officer pulled the car over for a minor traffic violation as an excuse to investigate something else) the stop is still lawful under Whren v. United States (1996) as long as the traffic violation actually occurred. But if the officer cannot articulate a valid reason for the stop, everything that follows is fruit of the poisonous tree.
Was the duration of the stop reasonable? Under Rodriguez v. United States (2015), a traffic stop cannot be extended beyond the time reasonably required to complete the mission of the stop (issuing a ticket or warning) unless the officer develops independent reasonable suspicion of criminal activity during the stop. If the officer held the defendant at the roadside for 20 minutes while waiting for a drug dog or running additional checks without reasonable suspicion to extend the stop, the prolonged detention is unlawful and any evidence discovered during the extension is suppressible.
Was the frisk lawful? Under Terry, an officer may conduct a limited pat-down of the defendant’s outer clothing if the officer has reasonable suspicion that the person is armed and dangerous. The frisk is limited to a search for weapons. The officer may not reach into pockets or manipulate objects unless they feel something that is immediately identifiable as a weapon by its shape and contour. In Minnesota v. Dickerson (1993), the Supreme Court held that the “plain feel” doctrine permits seizure of contraband detected during a lawful frisk only if its identity is immediately apparent. If the officer felt an object, manipulated it, and then concluded it was a firearm, the manipulation may have exceeded the scope of a lawful Terry frisk.
Was the vehicle search lawful? If the officer discovers a firearm in the vehicle rather than on the defendant’s person, the search of the vehicle must have its own legal justification — the automobile exception, consent, search incident to arrest, or inventory search. Each of these has specific requirements, discussed below.
The Automobile Exception
Under the automobile exception (Carroll v. United States, 1925, and its progeny), law enforcement may search a vehicle without a warrant if they have probable cause to believe the vehicle contains evidence of a crime or contraband. The exception is based on the reduced expectation of privacy in vehicles and their mobility.
Probable cause for the automobile exception requires more than a hunch. The officer must be able to articulate specific facts that would lead a reasonable person to believe that evidence of a crime is in the vehicle. Smelling marijuana (still illegal in Texas), observing drug paraphernalia in plain view, or receiving information from a reliable informant that the vehicle contains contraband can establish probable cause. But the officer’s generalized suspicion that “something is off” does not.
The scope of the search must be limited to places where the suspected evidence could reasonably be found. If the probable cause is for a firearm, the officer can search the passenger compartment, the trunk, and containers large enough to hold a firearm — but not a small pill bottle or a folded piece of paper. Challenging the scope of the search is a common and effective defense strategy.
Consent Searches
If the defendant consented to the search, the Fourth Amendment and Article 38.23 do not require a warrant or probable cause. But consent is one of the most litigated issues in suppression hearings because the prosecution bears the burden of proving that consent was voluntary.
Voluntariness is evaluated under the totality of the circumstances. Factors include whether the defendant was in custody, whether the officer’s request was phrased as a command or a question, whether the officer displayed weapons or used a threatening tone, the defendant’s age, education, and mental state, and whether the defendant was told they had the right to refuse. Consent obtained through coercion, deception, or a show of authority is not voluntary and does not validate the search.
Even when consent is given, it has limits. Under Florida v. Jimeno (1991), the scope of a consent search is defined by the terms of the consent. If the defendant consented to a search of the vehicle but not the trunk, opening the trunk exceeds the scope. If the defendant withdrew consent during the search (“stop, I don’t want you looking through that”), anything found after withdrawal is suppressible. The defense must carefully reconstruct the conversation between the officer and the defendant to identify scope limitations and withdrawal.
In Texas, there is an additional consideration. CCP Article 38.23 requires exclusion of evidence obtained in violation of Texas law, and Texas courts have scrutinized consent searches more carefully than federal courts in some contexts. If the officer’s conduct during the consent process violated Texas statutory requirements (for example, if the officer failed to inform a non-English-speaking defendant of their rights in a language they understood) suppression may be available even if the federal standard is met.
Plain View Doctrine
Under the plain view doctrine (Horton v. California, 1990), an officer may seize evidence without a warrant if (1) the officer is lawfully present at the location where the evidence is observed, (2) the incriminating nature of the evidence is immediately apparent, and (3) the officer has lawful access to the object.
In gun cases, the prosecution frequently claims that the firearm was in “plain view” such as visible on the seat, on the floorboard, or in an open glove compartment. The defense challenges plain view on two fronts: (1) whether the officer was actually in a lawful position to observe the firearm (if the officer approached the vehicle from the passenger side and looked through the window without justification, the observation may not have been lawful), and (2) whether the incriminating nature was immediately apparent (seeing a firearm in Texas is not automatically incriminating. Since permitless carry became law in 2021 under HB 1927, the mere presence of a handgun in a vehicle is legal for most adults 21 and older, and the officer must articulate why the firearm’s presence was evidence of a crime, not just evidence of a firearm).
The permitless carry issue is particularly significant for plain view challenges. Before September 1, 2021, carrying a handgun in a vehicle without a license was unlawful under former §46.02. An officer who saw a handgun in plain view had immediate probable cause. After HB 1927, the mere presence of a handgun is no longer a crime for most people. The officer must now have additional information (ex. the person is under 21, is a convicted felon, has a family violence conviction, or is otherwise prohibited) before the observation of a firearm establishes probable cause. This is a fundamental shift that many officers and prosecutors have not fully internalized, and it creates substantial suppression opportunities in post-2021 cases.
Search Incident to Arrest
Under Chimel v. California (1969) and Arizona v. Gant (2009), an officer may search the area within the arrestee’s immediate control incident to a lawful arrest. For vehicle searches incident to arrest, Gant limits the search to situations where (1) the arrestee is unsecured and within reaching distance of the vehicle at the time of the search, or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.
The Gant limitation is frequently violated. If the defendant was handcuffed and placed in the back of the patrol car before the officer searched the vehicle, prong (1) is not met because the defendant was not within reaching distance. Prong (2) requires a connection between the crime of arrest and the evidence sought: if the arrest was for an outstanding warrant or a traffic offense, there is no reason to believe the vehicle contains evidence of that offense, and the search incident to arrest is unlawful. A firearm discovered during an overbroad search incident to arrest is suppressible.
Warrant Searches: CCP Chapter 18
When law enforcement obtains a search warrant for a residence or vehicle, the warrant must comply with CCP Article 18.01 (affidavit establishing probable cause, sworn before a magistrate) and Article 18.04 (specificity of the warrant — the places to be searched and the items to be seized must be described with particularity). The defense challenges warrant searches on several grounds:
- Insufficient probable cause in the affidavit. The affidavit must establish probable cause to believe that the specific items sought will be found at the specific location to be searched. Stale information, unreliable informant tips, and conclusory statements by the affiant can undermine probable cause.
- Lack of particularity. A warrant that authorizes a search for “evidence of criminal activity” without specifying the items is an impermissible general warrant. The warrant must describe the items with enough specificity that the officers executing it know what they are looking for and where to look.
- Execution violations. CCP Article 18.06 requires that a search warrant be executed within three days of issuance (or the warrant expires), that the officer executing the warrant present a copy to the occupant, and that the search be conducted in a reasonable manner. Knock-and-announce violations, nighttime execution without nighttime authorization, and searches that exceed the scope of the warrant are all grounds for suppression under Article 38.23.
- Franks challenges. Under Franks v. Delaware (1978), the defense can challenge the truthfulness of the warrant affidavit. If the affiant included false statements or omitted material information, and the false statements were necessary to establish probable cause, the warrant is void and the evidence is suppressed. Franks challenges are powerful but require the defense to make a preliminary showing of deliberate or reckless falsehood.
Inventory Searches
When a vehicle is impounded, law enforcement may conduct an inventory search to catalogue the vehicle’s contents. Inventory searches are not investigative. They are administrative procedures designed to protect the owner’s property, protect the police from claims of theft, and protect officers from dangerous items. But firearms are frequently “discovered” during inventory searches that are conducted with an investigative purpose.
The defense challenges inventory searches by examining whether the impoundment itself was lawful (was there a legitimate reason to impound the vehicle, or was it impounded as a pretext for searching it?), whether the department followed its own standardized inventory procedures (if the department’s policy requires a specific inventory form and the officer deviated from the procedure, the search may not qualify as a valid inventory), and whether the search exceeded the scope of a legitimate inventory (opening locked containers that the department’s policy does not authorize opening).
The Suppression Hearing: How It Works
A motion to suppress evidence is filed pretrial under CCP Article 28.01. The hearing is conducted before the judge without a jury. The prosecution bears the burden of proving that the evidence was obtained lawfully if the search was warrantless. If the search was conducted under a warrant, the defense bears the initial burden of showing a deficiency, after which the burden shifts to the prosecution to justify the search.
At the hearing, the defense cross-examines the officers who conducted the search, challenges their account of events, and presents any contrary evidence (dashcam footage, body camera footage, the defendant’s testimony, witness testimony). The judge then rules on the motion. If the motion is granted and the firearm is suppressed, the prosecution typically has no case and will dismiss the charges. If the motion is denied, the case proceeds to trial but the defense may still obtain an Article 38.23(a) jury instruction if a factual dispute exists.
Case Results
The Gun Crime Charges at Stake
Understanding the specific offense matters because the nature of the charge affects the suppression analysis. The most commonly charged gun offenses in Texas are:
Unlawful Carrying of a Weapon: §46.02
Since HB 1927 (permitless carry, effective September 1, 2021), most adults 21 and older may carry a handgun without a license. Section 46.02 now applies primarily to persons under 21, persons carrying in prohibited locations, and persons who are otherwise disqualified. A conviction is a Class A misdemeanor (up to 1 year in jail) or a third-degree felony if the person has a prior conviction under this section.
Felon in Possession: §46.04
A person convicted of a felony may not possess a firearm before the fifth anniversary of their release from confinement or community supervision. After five years, possession is legal but only at the person’s own premises. This state-law restoration does not override the federal prohibition under 18 U.S.C. §922(g)(1), which permanently bars firearm possession for convicted felons and has no premises exception. A defendant who legally possesses a firearm under §46.04(a) at their home may simultaneously be violating federal law. Felon in possession under §46.04 is a third-degree felony (2–10 years).
Firearm Possession After Family Violence Conviction
Under §46.04(b), a person convicted of a Class A misdemeanor involving family violence may not possess a firearm before the fifth anniversary of their release. Federal law under 18 U.S.C. §922(g)(9) imposes a permanent prohibition with no time-based restoration. This is a significant collateral consequence that connects gun crime defense directly to family violence defense and it is one of the reasons the family violence designation is so aggressively contested in assault cases.
Prohibited Weapons: §46.05
Section 46.05 criminalizes possession of certain weapons regardless of the defendant’s status: explosive weapons, machine guns, short-barrel firearms, armor-piercing ammunition, zip guns, tire deflation devices, and improvised explosive devices. A conviction is a third-degree felony.
Weapons in Prohibited Places: §46.035
Even with permitless carry, Texas law prohibits carrying firearms in certain locations: schools (§46.03), polling places, courts, racetracks, secured areas of airports, and businesses that post compliant 30.06 (concealed) or 30.07 (open carry) signage, and establishments deriving 51% or more of revenue from alcohol sales. Violations range from Class C misdemeanor to third-degree felony depending on the location.
Digital Evidence in Gun Crime Cases
An increasing number of gun crime prosecutions rely on digital evidence: social media posts showing the defendant with a firearm, text messages discussing the sale or transfer of weapons, GPS and cell tower data placing the defendant at a location where a firearm was found, and photographs or videos stored on the defendant’s phone. This evidence is often obtained through search warrants for electronic devices or through social media subpoenas.
Doug Huff’s Garrett Discovery digital forensics training allows him to evaluate how digital evidence was obtained and whether the extraction methodology meets forensic standards. If a phone was searched without a warrant (in violation of Riley v. California, 2014, which requires a warrant for cell phone searches incident to arrest), the entire contents of the device may be suppressible. If a search warrant for a device was overbroad (ex. authorizing a search for “all data” rather than specific categories of evidence related to the alleged offense) the defense can challenge the warrant’s particularity and seek suppression of evidence outside its scope.
Gun Crime Defense at Deandra Grant Law
Gun crime cases are won or lost at the suppression hearing. If the search was unlawful, the gun is suppressed and the case is over. If the search survives the hearing, the defense still has the Article 38.23(a) jury instruction as a second opportunity to challenge the evidence. Either way, the quality of the suppression analysis (the attorney’s command of Fourth Amendment doctrine, Texas’s broader exclusionary rule, and the specific factual context of the search) can be an important factor in the outcome.
At Deandra Grant Law, we approach every gun crime case by working backward from the search. How was the firearm discovered? What legal authority did the officer rely on? Does the officer’s account hold up against the dashcam, the body camera, and the physical evidence? Our training allows us to evaluate both the physical and digital evidence independently, and Deandra Grant’s 30+ years of criminal defense trial experience provide the courtroom skill to present the suppression argument persuasively to judges and juries.
With offices in Dallas, Fort Worth, Allen, Denton, Waco, and Rockwall, we defend gun crime cases across North Texas. Call (214) 225-7117 or visit texasdwisite.com for a confidential consultation.
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