MCGUIRE, SEAN MICHAEL v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0984-19

THE STATE OF TEXAS, Appellant

v.

SEAN MICHAEL MCGUIRE, Appellee

ON STATE=S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
FORT BEND COUNTY

KEEL, J., filed a concurring opinion in which KELLER, P.J., and YEARY
and SLAUGHTER, JJ., joined.

CONCURRING OPINION

We granted review to decide whether exigency is needed to justify a warrantless

arrest under Article 14.03(a)(1). Neither its text nor our caselaw imposes an exigency

requirement, and we should say so. Since the lead opinion hedges on the issue, I

respectfully concur only in its judgment.

As pertinent here, Article 14.03(a)(1) authorizes the warrantless arrest of “persons
McGuire Concurrence–2

found in suspicious places and under circumstances which reasonably show that such

persons have been guilty of some felony” or other enumerated offense. Tex. Code Crim.

P. art. 14.03(a)(1). It makes no mention of exigent circumstances.

Other statutes governing warrantless arrests not only mention exigent

circumstances but require them. Article 14.05 prohibits entry into a residence to make a

warrantless arrest absent “exigent circumstances” or consent. Tex. Code Crim. P. art.

14.05. Article 14.03(a)(2) specifies a particular exigency—“probable cause to believe

there is danger of further bodily injury” to a person who has already been assaulted.

Tex. Code Crim. P. art. 14.03(a)(2). Article 14.04 specifies another exigency—a

reported felon about to escape such that there is no time to get a warrant. Tex. Code

Crim. P. art. 14.04. But the Legislature has never imposed an exigency requirement on

Article 14.03(a)(1)—a significant omission.

This Court has never imposed an exigency requirement on Article 14.03(a)(1),

either. Rather, we have cited exigency as one circumstance in the totality that must be

analyzed to assess an arrest’s validity under the statute. In Gallups v. State, for example,

police were justified in arresting the defendant at his house because he walked there just

after abandoning his wrecked car, and there was an exigent need to test his blood-alcohol

level. 151 S.W.3d 196, 201–02 (Crim. App. 2004). In Swain v. State, the defendant’s

arrest at his workplace was justified because he admitted breaking into the missing

victim’s house, beating her, and leaving her in a remote location, and the police needed to

prevent his flight and find the victim. 181 S.W.3d 359, 366–67 (Tex. Crim. App. 2005).

Exigency was one circumstance in the totality that Gallups and Swain examined; it was
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not a particular requirement.

Dyar v. State declined an invitation to impose an exigency requirement onto

Article 14.03(a)(1) and instead embraced the longstanding totality-of-the-circumstances

analysis. 125 S.W.3d at 468 (Tex. Crim. App. 2003). Dyar observed that the

Legislature had never amended Article 14.03(a)(1) in response to earlier cases applying a

totality of the circumstances test, so we presumed that the Legislature intended the same

construction to continue to apply. Id.

Dyar applied a bifurcated test: (1) probable cause of guilt and (2) the defendant’s

location in a suspicious place. Id. The same facts that demonstrated Dyar’s guilt also

showed that the hospital where he was arrested was a suspicious place. Id. at 467–68.

He had been identified as the driver in a recent DUI and had admitted to drinking and

driving. Id. at 468.

Answering the suspicious-place question is a “highly fact-specific analysis.” Id.

Several factors have been examined to answer the question. Id. Dyar identified one

“important” and “constant” factor in determining the suspiciousness of a place of arrest:

temporal proximity between the crime and the arrest. Id. at 468. Another factor is

physical proximity. In Johnson v. State, the defendant was arrested on probable cause at

the scene of a murder within two hours of its commission; that was a suspicious place.

722 S.W.2d 417, 421 (Tex. Crim. App. 1986) (overruled on other grounds, McKenna v.

State 780 S.W.2d 797 (Tex. Crim. App. 1989)).

In this case, the “suspicious place” requisite was fulfilled by probable cause to

show Appellee’s guilt of a felony and by temporal and physical proximity between the
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crime and his arrest. He was found minutes after a car crash at a gas station a few

hundred feet from the crash site. A motorcyclist was dead, and motorcycle parts were

stuck in the grill of Appellee’s truck. Appellee showed signs of intoxication, he had beer

in his truck, he admitted he hit something, and his passenger said he hit a person. His

warrantless arrest was justified under Article 14.03(a)(1) notwithstanding any exigency,

and the court of appeals erred in upholding the trial court’s order suppressing evidence

obtained as a result of Appellee’s arrest.

Accordingly, I concur in the Court’s decision to reverse the lower court’s

judgment.

Filed: February 21, 2024

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