Affirmed as Modified and Memorandum Majority and Dissenting Opinion s

filed September 2 , 2021.

In The



## Fourteenth Court of Appeals

NO. 14

- 19

- 00762

- CR

TATIANA BAKHOUM , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the Co unty Crim inal C our t at Law No

. 5

Harris County, Texas Trial Court Cause No. 2214948

M E M O R A N D U M D I S S E N T I N G O P I N I O N I respectfully dissent and would reverse the trial court’s ruling based on the arresting officer ’s judicial admission that he lacked probable cause at the time he arrested Appellant

. See Maj. Op. at 6

- 7 (“Appellant further cites Neimeyer’s testimony that he did not believe he had probable cause when he placed appellant in handcuffs.”); see also Bryant v . State , 187 S .W.3d 397, 400 (Tex. Crim. App

. 2005) (descri bing “

j udicial admiss i o ns ” as “ forma l conc essions .

. . by a party or2

counsel that have the effect of withdrawing a fact from issue and dispen s ing wholly with the need for proof of the fact ” ) (citing 2 John W. Strong et al., McCormick on Evidence § 255 (5t h ed. 1999)).

The m a jority correctly recites that, “The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer .

. . and it requires a consideration of the totality of the circumstances facing the arres ting
offic er.” Maj. O p . at 8 (quoting Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Beck v. Ohio , 379 U.S. 89, 97 (1964)) )

. Based thereon, the majority concludes we are authorized to ignore the arresting officer’s judicial
admission that he l acked probab l e cause then construct post hoc probable cause
from the facts he knew at the time. I disagree.
First, the sentence cited by the majority from Amador reveals that we must ignore officers’ subjective beliefs when testing “ for probab le cause ” (emphasis
ad d ed) ; conversely, we are not instructed to ignore officers’ subjective beliefs when analyzing the dispositive absence of probable cause. I ndeed, Beck specifically an alyzed whether subjective good faith was sufficient to justify a

war rantless arrest and na t urally concluded it is not. See Beck , 379 U.S. at 97 (“If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and th e people would be ‘secure in their persons, houses, papers,
and effe cts,’ only in the disc r etion of the police.”)

. Beck therefore instructs us that an officer cannot justify a warrantless arrest based on subjective beliefs alone; it
does not tell us that we must (or even should) also ignore arresting officers’ subjective beliefs that they lack probable cause at the time of an arrest

. This fundamental precept is neither new nor novel.
When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to th e3

officers at the momen t o f the arrest would “ warrant a [person] of

reas onable caution in the belief ” that an offense had been committed.

Beck , 379 U.S. at 96 (quoting Carroll v. United S tates , 267 U.S. 132, 162 (1925)). Here, the constitutional validity of an arrest has been c hal lenged; therefore, we are duty

- bound to determine whether the facts known to Officer Neimeyer at the time he arrested Appellant would warrant a person of reasona ble caution in the belief an
offense had been committed. Id. I conc lude Officer Neimeyer ’s ad mission that he lacked probable cause (when viewed objectively) is controlling and that the majority’s holding to the contrary effectively authorizes law enforcement seizures
based on “inarticulate hunches”. Terry v. Ohio , 392 U. S. 1, 21

- 22 (1968) (“ An yth ing less [than analyzing the facts against an objective standard] would invite intrusions upon constitu tionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently re fused to sanction.”) (c iti ng Beck , 379 U.S. at 89 ; Rios v. United States , 364 U. S. 253 (1960); Henry v. United States , 361 U. S. 98 (1959)). Whether Appellant’s arrest was constitutional depends “upon whether, at the moment the arrest was made, the offi cers had probable cause t o make it

— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a p rudent [person] in believing that the [appellant] had comm itted or was committing a n offense.” Beck , 379 U.S. at 91 (quoting Brinegar v. United States , 338 U.S. 160,
175

- 76 (1949); Henry , 361 U.S. at 102 ). At the moment the arres t was made, the arresting officer believed he did not have probable cause to arrest Appellant

. See
id. at 9 4 (“[T] he record does not show that the officers saw the petitioner ‘ stop ’ before they arrested him, or that they saw, heard, smelled, or otherwise perceived anything else to give them ground for belief that the petitioner had acte d or was then acting un la wfully .”). I do not see a way around this conclusion
, analysis, or4

judicial admission

. I respectfully dissent.

/s/ Meagan Hassan Justice

Pan el con sists of J usti c e s Spain , Hassan , and Poiss a n t (Spain, J ., ma jority)

. Do No t Pub lish

—

T ex . R. App. P. 47.2(b)

.