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Defense attorney working to keep evidence from 2017 Port Arthur murder out of court

Ryan Gertz claims the home search and portions of the interrogation were done illegally.

PORT ARTHUR, Texas — A defense attorney for a suspect accused of killing a man at a Port Arthur apartment complex in 2017 wants to keep certain evidence from being used in the trial. 

Ryan Gertz has raised questions about how Port Arthur Police gathered evidence connected to the 2017 murder of Javonte Jack at Avery Trace Apartments. Prosecutors have charged Diante Burrell with murder.

Gertz claims the search of Burrell's home and portions of his interrogation were done illegally.

RELATED: Suspect in fatal Tuesday night shooting at Port Arthur apartment complex claims self-defense

Gertz presented two motions to suppress evidence before Judge Raquel West Thursday. The first motion was to support suppression of Burrell's home search. 

The defense claimed Port Arthur police officers were trespassing because they approached Burrell's home from the back door. Three officers were there during the initial approach. 

Detective Lakeisha Thomas said they went to the home based on an anonymous tip that Burrell and two others were involved in the murder. The tip claimed they had left the scene in a white car. 

Thomas went to the home by herself, saw three individuals and a white car matching the description, and called for back up. Thomas said at that point she had reasonable suspicion. 

Thomas said she was joined by two more officers. She and one other officer went to the back door, while a third waited to the side of the home near the front door. Before they could knock on the back door, Burrell ran out through the front of the house. 

Thomas stayed behind while the other two officers ran after him. Thomas said this gave her probable cause to believe they had the right suspect. 

Thomas again called for back-up. She said they went into the home because she was concerned for the officers' safety. She wasn't sure if there were more people or guns inside, and she said she was worried evidence could be destroyed. 

Thomas then had an ID tech come in and take pictures of the evidence. At this point, they had no warrant. She said there were "exigent circumstances" to do the initial sweep of the home. 

Gertz presented bodycam video showing officers searching couch cushions, an air conditioning unit and under a bed. Four hours after initial entry, they obtained a warrant. 

Gertz claimed the officers were trespassing when they entered the property without permission, and approached the back door instead of the front. He said there was no risk that any evidence would be destroyed once everyone was outside. 

Instead of a sweep, he said the officers went "in and out of the home" and continued their search for about 45 minutes. 

Major Patricia Mendez also gave testimony during Thursday's hearing. She was assigned to the homicide on the date it happened. Mendez was not present when the three officers approached the home, or for the search. 

Mendez said officers sometimes use the back door for several reasons, including the the element of surprise. Gertz claimed that the Supreme Court ruled the use of back doors amounts to trespassing. 

Mendez said she was unaware of the search and the photos taken before the warrant. She said this wasn't disclosed to the judge prior to him signing it. 

Gertz said the officers used information gathered from the unlawful search to obtain the warrant and complete a more thorough search. 

Because of this, Gertz said everything obtained from the search should be excluded from evidence by the court, "In violation of the U.S. and Texas Constitutions, as well as Article 38.23 of the Texas Code of Criminal Procedure."

Gertz also filed a motion to suppress the use of Burrell's interrogation by investigators. He said only a portion of the interview was recorded. Burrell was questioned for more than two hours. The recordings of that interrogation were put on DVDs. 

Gertz said when the second video ends, Burrell is taken outside for a smoke break. The area is not equipped with video or recording devices. A uniformed officer video-taped the interaction with his body camera. 

The conversation, according to Gertz, can't be fully heard or understood, but it's clear the interrogation is continuing. He said Burrell was taken back inside, where he was questioned for nearly two more hours off-camera. 

Gertz said the body camera continued to roll, but again, did not provide sufficient audio or video of the interrogation. He said the continued interrogation should have been submitted, but they weren't. Gertz concluded that the questioning wasn't captured, placed on a disk and given to the District Attorney's Office. 

Gertz said the Code of Criminal Procedure requires law enforcement to electronically record all statements made during an interrogation. Since the interview was only partially recorded, he said he believes the entire interview, including Burrell's confession, excluded from evidence. 

Both Gertz and the prosecutor have until Friday, August 2, to submit any case laws or bench briefs that apply to electronic recording, for her to review before she makes her ruling. She plans to make her decision by August 9. 

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