Page 32 - TPA Journal March April 2024

Unlawfully causing the death of another, for the nality is likely to be destroyed, degraded, or lost,
purposes of Article 14.03(a)(1), is at the very least and (3) whether the subject of probable cause
a breach of the peace. To the extent that the trial poses a continuing and present danger to others.
court found otherwise on either of these points Other considerations may multiply the magnitude
was clearly erroneous. of the exigency such as how difficult or time-con-
suming it is to obtain a warrant in relation to the
The State argues on discretionary review that the above factors.
court of appeals erred in affirming the trial court’s
suppression when the issue of exigency was not The totality of the facts in this case, though under-
raised nor ruled on by the trial court. Because developed towards this point, show Appellee was
Appellee never raised the issue, nor put them on in a “suspicious place” and exigent circumstances
fair notice that it was contested, there was no rea- existed. Police were faced with investigating a
son for the State to present evidence or call wit- roadway homicide likely induced by driving
nesses to testify towards exigency. Thus, the State while intoxicated. Police were faced with the
argues that they were unfairly deprived of an “ade- challenge of conducting at least a preliminary
quate opportunity to develop a complete factual investigation at around 1:00 am in the dark of
record” regarding exigency. The State further night on a poorly lit intersection. Their ability to
argues that Article 14.03(a)(1) does not expressly preserve and recover as much physical evidence
contain an exigency requirement and that constru- as possible was significantly diminished com-
ing it to require exigency leads to absurd results. pared to during business hours and under broad
In response, Appellee argues that exigency actual- daylight. As Trooper Tomlin testified, debris from
ly was litigated in the trial court and that it is the the accident and other evidence, such as skid
fault of the State in choosing not to present further marks, trails of vehicle fluids, and roadway
evidence of it. scratches, needed to be identified and recorded
because they disappear over time. Furthermore,
We agree with the State in that they were not given there were only four DPS troopers on duty in the
fair notice of the exigency question which is not entire county that night. And three of them,
specifically mentioned in the statute. This unfairly including Trooper Tomlin, were spread out over
deprived them of an adequate opportunity to 829 feet of roadway stretching from the point of
develop a complete factual record. However, impact to the final resting place of the motorcycle.
although the factual record regarding the question According to Trooper Tomlin, it took the three
of exigency has not been completely developed, troopers “a couple of hours” by mostly flashlight
the existing factual record sufficiently establish to finish investigating the scene. Though
that exigent circumstances exist here. As we pre- Appellee was cooperative to this point, there was
viously noted, based on these facts, exigency no guarantee that he would not leave the scene at
existed to make a warrantless arrest, and there is his earliest opportunity. And if he left in his vehi-
no need to ignore it. cle, Appellee could have presented a danger to

others.
Exigent circumstances are circumstances that
“call for immediate action or detention by police.” In addition to the need to collect and preserve
Accordingly, fact-specific scenarios may fulfill physical evidence at the scene, there was also an
14.03(a)(1)’s exigency requirement where it is increasing need to preserve evidence of intoxica-
overly impractical for police officers to obtain an tion in Appellee’s blood. In addition to the natur-
arrest warrant while still furthering the goals of the al attrition of the level of blood alcohol content
public good under the totality of the circum- over time, any additional consumption of alcohol
stances. Factors that may be considered include or other intoxicants would have detrimentally
(1) whether the subject of probable cause is likely degraded the reliability of any later collected
to leave the scene, (2) whether evidence of crimi-

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