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Click here for the full text of this decision FACTS:The evidence showed that Edward James, a limousine driver, was stopped at the corner of Westheimer and Loop 610 at 1:45 a.m., waiting for the light to change. Suddenly a purple Corvette ran into the car behind James, veered toward the curb, and finally “jagged” back to the left hitting the limousine. The Corvette ended up underneath the rear bumper of James’ limousine. Lawrence Preston Miles had been driving the Corvette. James and a couple of his clients, professional football players, got out of the limousine to inspect the damage. The football players said that Miles was drunk and then they got back into the car. James asked Miles for his driver’s license and proof of insurance. He noticed that Miles had alcohol on his breath, his speech was slurred, his eyes were red, his balance was unsteady and “he was backing up and holding onto his car, propping himself up onto his car.” James concluded that Miles was drunk. Miles and James exchanged driver’s license information, but Miles never gave James his insurance documentation. James asked him to wait until the police arrived, but after waiting for a while, Miles became very nervous. He said, “I’ve got to go.” Miles got into his car and backed it up, tearing out part of the limousine’s back bumper. James said that Miles ran the red light as he drove west down Westheimer at a high rate of speed. Meanwhile, several tow-truck drivers had arrived at the accident scene, including Joseph Moore. Moore did not think it was safe for Miles to leave the scene, so he “made the decision based on public safety and his mannerisms that something needed to be done in an effort to try to stop him from harming anyone else or himself.” Moore was especially concerned because he didn’t think that Miles “ever looked to find out if any other traffic was coming” when he left the accident scene. Moore and about five other wrecker drivers followed Miles in their trucks and tried to stop him near the corner of Post Oak and Westheimer, but Miles evaded them. Moore followed as Miles took two left turns and went the wrong way down West Alabama into oncoming traffic. His driving was “[v]ery dangerous,” so Moore followed with his “overhead lights on to alert people that we are coming the wrong way.” Moore knew that he was taking a chance going down a one-way street, but he said that his motive was public safety. Then Miles drove west in the east-bound lanes head-on into heavy traffic on Westheimer, so Moore crossed over the median and followed, going the right way. Miles “whip[ped]” into a bar parking lot going “ maybe 50 m.p.h.” Moore followed, along with other wrecker drivers who had caught up. They “corralled” Miles in the parking lot. Moore got out and went up to Miles’ Corvette, asked him to put the car in park and give up the keys. When Miles told him “to ‘F’ off,” Moore reached in to take the keys “at which point I felt a cold object to the right temple of my head.” It was a handgun. Moore slid down beside Miles’ car and sidled to the rear of the car until the police arrived two or three minutes later. At the motion to suppress hearing, the trial judge asked Miles to specify his legal issue, and Miles’ defense attorney stated that: “[t]he sole argument . . . is whether the citizen who placed Mr. Miles under arrest had probable cause to do so, number one. Whether it violated a law in order to arrest Mr. Miles. Number three, whether a citizen has a right to pursue a person if the citizen believes that that person committed a breach of the peace.” After the trial judge denied the motion, Miles pleaded guilty and appealed those legal issues. The 1st Court of Appeals determined that Moore did make a citizen’s arrest but that the trial judge did not abuse his discretion in concluding that Moore had probable cause to arrest Miles for driving while intoxicated. Finally, the 1st Court disagreed with Miles’ assertion that Texas Code of Criminal Procedure Art. 38.23 compelled the exclusion of any evidence resulting from Miles’ arrest because Moore violated various traffic laws in effecting the arrest. Noting that the laws regulating the flow of traffic do not fall into the category of laws that, if broken, compel the exclusion of evidence, the court then held that Moore’s actions, though perhaps dangerous, did not implicate Art. 38.23. HOLDING:Affirmed. Article 38.23(a), unlike the Fourth Amendment, applies to certain actions by private individuals as well as those by government officers, the CCA stated. But the CCA stated that few Texas cases have discussed what types of searches and seizures conducted by private citizens are illegal for purposes of the Texas exclusionary rule. Reviewing its past case law, the CCA found that “a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do.” In addition, the CCA stated that under Art. 14.01(b), a peace officer may arrest an offender without a warrant “for any offense committed in his presence or within his view,” but citizens may make such arrests only for a felony or a misdemeanor that is “an offense against the public peace.” The CCA concluded that a citizen may make a warrantless arrest of a person who commits a misdemeanor within the citizen’s presence or view if the evidence shows that the person’s conduct poses a threat of continuing violence or harm to himself or the public. It is the exigency of the situation, not the title of the offense, that gives both officer and citizen statutory authorization to protect the public from an ongoing threat of violence, harm or danger by making a warrantless arrest, the CCA stated. Applying the law to the facts of the case, the CCA found that Moore had authority to arrest Miles under Art. 14.01(a). The CCA also found that Moore’s traffic violations did not implicate Art. 38.23. OPINION:Cochran, J., delivered the opinion of the court in which Meyers, Womack, Keasler, Hervey and Holcomb, JJ., joined. CONCURRENCE:Price, J., filed a concurring opinion in which Johnson, J., joined. “I cannot endorse the majority’s new rule � ‘that a private person may do what a police officer standing in his shoes can legitimately do, but may not do what a police officer cannot do[.]‘ . . . [T]he new rule may have the unfortunate effect of encouraging vigilantes, rather than discouraging them. . . . “Even assuming that the legislative intent was to prohibit any evidence-gathering conduct on the part of private citizens that would be prohibited to police officers, it does not necessarily follow that the legislature also intended to implement the converse proposition: that any evidence-gathering police conduct that we would regard as lawful under the circumstances we would also permit a private citizen to engage in.” Keller, P.J., concurred without a written opinion.

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