Crittenden v. State

sеrved, Assuming that trial counsel should would if be better claims of ineffec- pretrial motion, appellant filed cannot make tive assistance of counsel were not raised on showing prejudice appeal applications case. Both direct but rather in seek- ing omissions the indictments were corpus matters of habeas relief. prior and could

form have been amended during appellant

trial or trial if did not ob-

ject. 28.09, Tex.Code Crim.Proc.Ann. arts. Appellant

28.10 and 28.11. can make no

showing error, that but for counsel’s would

result have been different. request Counsel failed a mitigating

8. punishment.

instruction on intoxication at CRITTENDEN, Appellant, John Appellant argues that counsel was request failing mitigating ineffective for temporary insanity instruction on caused Texas, Appellee. STATE voluntary intoxication. See Tex.Penal Code However, Ann. 8.04. our review of the 576-93. No. indicates record that there is no evidence Texas, Appeals Court of Criminal record that was intoxicated at En Banc. fact,

the time of the offense.22 identifies evidence in the record which

would indicate he prior used intoxicants May during or commission the offense.

Therefore, appellant not have would been charge requested.

entitled to the had been State,

See Miniel v. — denied, (Tex.Crim.App.), U.S. —, cert. (1992);

113 S.Ct. L.Ed.2d Cor 175, 190 (Tex.Crim.

dova denied,

App.1987), cert. 487 U.S. 2915, 101 L.Ed.2d Because

it would have been error for the trial temporary

court refuse the on instruction

insanity intoxication, because of we do not trial failing

believe counsel was ineffective for request such an instruction.

Appellant’s point final error is over- judgment

ruled. The of the trial court is

affirmed.

CLINTON, J., in the concurs result.

BAIRD, J., join note: I concurs with

majority opinion pause to reiterate the expressed

remarks Jackson (Baird (Tex.Cr.App.1994) Overstreet, JJ., concurring). Appellate appellants

counsel would be well advised satisfy prejudice prong Appel- Appellant of Strickland. directs attention to evidence spray paint argument that he took the ap- inadequately a "hit” briefed. lant’s Tex. after 74(f). commission of the offense and evidence that R.App.P. pellant past during had both his time in the prison paint paint spray inhaled thinner.

I. Aus- dispute do the facts. parties not on Sergeant Duane McNeil was tin Police a East when he received patrol in Austin on a dispatch requesting that he check radio at 2513 11th suspicious white vehicle East complain A had called to resident Street. occupant “possibly vehicle was that buy a white trying drugs.” McNeil found parked Appel- truck at that address. pickup occupant and sole lant was driver appellаnt conversed pickup. McNeil and off, briefly. appellant After drove McNeil right giv- turn him without observed make point, proper signal. At this McNeil ing a him, woman, approached by a who told was pursued was the vehicle.” McNeil then “that and it. the truck stop, the officer asked After proof and of insur- for his driver’s license Appellant cooperative, could was ance. immediately papers. find his insurance not Greenwood, Austin, Roy appeal only, E. on vehicle; step asked him to out of the McNeil appellant. per- then asked for consent to search his he Nelson, Earle, Atty., Philip Ronald Dist. A. consented, Appellant son. contraband Jr., Huttash, Atty., Asst. Dist. Robert State’s subject appeal is the of this was dis- which Austin, Atty., for State. covered, subsequently ar- and pretrial hearing testi- rested.1 At McNeil that, carry not although he did a citation fied car, patrol him in he had book with his PETITION OPINION ON APPELLANT’S intending to him a stopped appellant give FOR DISCRETIONARY REVIEW citation. He also characterized traffic CLINTON, Judge. research-type stop as a “kind of situation.” Appellant pled to a nolo contendere appeal on Appellant complained charge possession of controlled substance cause, in this and was stop was (heroin), and was sentenced in accordance Amend- illegal the Fourth thus under both years, plea bargain probated. with seven and 9 of the Texas Consti- ment Article Third by His conviction was affirmed appeals, speaking tution. The court of Appeals. No. Crittenden v. Onion, Presiding Judge through our former 1993) (Tex.App. Austin, April 91-2720 — complaint, rejected his Fourth Amendment discretionary granted re (unpublished). We opinion in Garcia v. citing this Court’s court single ground, on a viz: “Did the view Id., (Slip holding stop of appeals err in challenge Appellant does op. at vehicle, subsequent his deten appellant’s claim disposition of Fourth Amendment his tion, ‘pretext under the arrest’ here. of the Texas provisions Article Section 9 Turning that the Tex.RApp.Pro., appellant’s Rule contention Constitution?” 200(c)(2). ille- pretext, was a and therefore finding pre-trial hearing, appellant [that] as a of fact “state[d] denied that on record 1. At the However, given by denial he consented to the search. his the defen- was asked for consent testimony both McNeil's was contradicted for the search." dant officer, backup trial court that of gal under Article 9 of the Texas Consti- Court. discussing The cases doc- tution, appeals trine, the court responded: or cited support this Court as legion.3 are After re- “Further, an pretext stop issue of is not cases, however, viewing these we are forced simply raised police validly because the admit, Presiding as Judge McCormick stop a vehicle for a traffic violation when opined recently context, in a different they generalized have a suspicion more our efforts in this area have failed “a as that the driver of the vehicle was involved clarity model of legal analysis.” and concise separate State, in a crime. Hamilton v. State, (Tex.Cr. Lyon v. 872 S.W.2d 734 831 (Tex.Crim.App.1992); S.W.2d App.1994). State, Goodwin v. 799 S.W.2d (Tex.Crim.App.1990). Because the facts of note, As and amicus curiae three the instant cаse do not raise the issue of a “tests” have been used American in courts pretext arrest, we need not address the hotly pretextual debated context of sei- constitutionality under Article test, “subjective” zures: “objective” I, Section 9 of the Texas Constitution. test, objective” and the “modified test.4 The Hamilton, 831 S.W.2d at 330.” pivotal State, Texas case of Black v. Thus, Id. appeals the court of seems at least S.W.2d 240 (Tex.Cr.App.1987) has been cited nominally to have question avoided the an example “subjective” of a approach; whether the in this cause yet, nothing about our in Black is violated Article 9.2 We nevertheless ‍‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‍objective” inconsistent with a ap- “modified granted appellant’s petition discretionary proach. holding We based our in Black in review in order to legality address the of so- part on opinion the Fifth Circuit’s in Ama- called stops under state constitu- States, dor-Gonzalez v. United 391 F.2d 308 analog

tional to the Fourth Amendment. (CA5 1968), another case which has been “subjective” cited for approach. its But

II. Amador-Gonzalez was overruled in United (CA5 Whether 1987) Article 9 admits Causey, 834 F.2d 1179 wholly (en doctrine is not a banc), novel in issue this which the Fifth Circuit Prosecuting Attorney 1976) The State Cr.App. (opinion contends that rehearing); McDoug on question whether Article 9 admits of a State, 1977); ald v. (Tex.Cr.App. 547 S.W.2d 40 pretext doctrine is not before us in this cause. State, (Tex.Cr.App. Faulkner v. 549 S.W.2d 1 appeals authority Because the court of held on 1976); State, (Tex.Cr.App.1977); Dillard v. 550 S.W.2d 45 Hamilton that the facts do not raise State, (Tex. v. 558 S.W.2d 463 Fatemi event, Prosecuting Attorney argues, the State 1977); State, Cr.App. White v. 574 S.W.2d 546 that issue was ap- not decided the court of State, (Tex.Cr.App.1979); Evers v. 576 S.W.2d 46 (cid:127) peals, ripe and therefore is not for our consider- 1978); State, (Tex.Cr.App. v. 577 S.W.2d Razo State, e.g., ation. See Lee v. 791 S.W.2d 141 1979); State, (Tex.Cr.App. McMillan v. given post, For reasons how- State, ever, (Tex.Cr.App.1980); S.W.2d Armitage v. we conclude that both this Court in Hamil- ton, hence, cause, appeals (Tex.Cr.App.1982); the court 637 S.W.2d 936 in this Dodson v. State, did in fact address the issue 1983) under Article (Tex.Cr.App. (opin 646 S.W.2d 177 expressly by necessary albeit not but im- State, rehearing); ion on Bain v. S.W.2d plication. 1984); State, (Tex.Cr.App. Meeks v. 692 S.W.2d State, (Tex.Cr.App.1985); Blаck v. thirty Our research reveals more than cases State, (Tex.Cr.App.1987); S.W.2d 240 Webb v. from this Court that either address the (Tex.Cr.App.1987); Boyle 739 S.W.2d 802 v. arresVstop doctrine or that we have cited as State, (Tex.Cr.App.1989); 820 S.W.2d 122 Good authority for the doctrine. See McDonald v. State, State, (Tex.Cr.App.1967); (Tex.Cr.App.1990); 415 S.W.2d 201 win v. 799 S.W.2d 719 Adair State, 1967); (Tex.Cr.App. State, v. 427 S.W.2d 67 Hall (Tex.Cr.App. Gordon v. 801 S.W.2d 899 State, (Tex.Cr.App.1973); v. 488 S.W.2d 788 be 1990); State, (Tex.Cr. Tal Garcia v. 827 S.W.2d 937 State, (Tex.Cr.App.1973); rt v. 489 S.W.2d 309 State, App.1992); Hamilton v. 831 S.W.2d 326 State, (Tex.Cr.App. v. 502 S.W.2d 746 Gutierrez State, (Tex.Cr.App.1992); Bobo v. 843 S.W.2d ‍‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‍1973); State, (Tex.Cr.App.1974); Hampton v. 511 S.W.2d 1 State, (Tex.Cr.App.1992); v. Nelson State, (Tex. 521 S.W.2d 852 Borner (Tex.Cr.App. S.W.2d 126 State, Cr.App.1975); Maldonado v. State, (Tex.Cr.App.1975); Hooper Lawyers (Tex.Cr.App.1975) (opinion 4.Texas Criminal Defense Association on re State, (Tex. hearing); Leighton v. 544 S.W.2d 394 has filed an amicus curiae brief in this cause. However, fully developed. “objective” sei- than approach been less “subjective intent” is premise strength Causey, plurali- basic zures. On the relevant, determinative, gauging even purported ty then to overrule “modi- Black, of a Id. The 899 reasonableness seizure. Gordon objective” has been approach described (Tex.Cr.App.1990) (plurality opinion). fied names, ways, under various in various premised on Because Gordon was both judicial up is most oftеn summed I, § of the Fourth Amendment and Article “not could inquiry into whether officer constitution, Texas it would seem to un- validly stop but whether have made the But, today. question before answered us offi- the same circumstances reasonable der as we noted later Garcia v. stop in have made the the absence cer would (Tex.Cr.App.1992), because Gor- v. purpose.” invalid United States of an plurality opinion oper- a it don was could not (CA11 1986); Smith, see 799 F.2d Al- precedent. ate to overrule established Crotinger, States v. 928 F.2d also United though adopted the Fifth Circuit’s Garcia Guzman, (CA6 1991); United objective approach pretextual un- seizures (CA10 1988). F.2d 1512 expressly der the Fourth it re- urge question served the for Both and amicus curiae now state constitutional Garcia, day. supra, reject objective approach n. 8. that we another at 943 us to analyze question pretext one claims of seizures today adopted The before us is thus Garcia, in expressly open by Fourth v. supra, left viz: under the Amendment Garcia State, supra, adopt pretextual Hоw should review of and to instead a modified we claims brought pursuant objective approach seizure 9 of under Article 9. We Article First, arguable the Texas to do so. it is at least Constitution? decline tacitly adopted purely a that the Court has I, § III. objective approach under Article 9 al- State, supra. ready, in Even Hamilton pretextual seizure, gen A in the most not, anomalous, having it had we would be sense, eral one that is for an is effectuated found Garcia that decisions of (i.e., pretextual) ulterior The three motive. adopted circuit that have an federal courts approaches claims courts have taken toward objective persuasive than standard are more subjec objective, of seizure —the test, objective adopting a those modified merely tive modified dif —are a about-face and announce that modified ob- ways ferent courts review a claim defendant’s jective approach adopted pur- should be for particular illegal that seizure was because аnalysis. poses of our own state constitutional pretextual. “subjective” “objective” approaches by avoid represented appeals Black and Cau- The court of was able to sey, generally supra, expressly deciding both are considered whether Article Garcia, polar opposites. supra, appellant’s be unlawful con- See renders seizure “objective (contrasting approach” cluding developed that the facts as at the subjective “wholly analysis”). suppression hearing with a did not raise the issue of Under “objective” approach, stop. (Slip seizing supra an officer’s Crittenden v. court, subjective effectuating op. Writing Judge motivation in a sei for the Onion proposition upon zure is deemed irrelevant to the determina relied for this this Court’s opinions tion whether the seizure was reasonable. Hamilton State and Goodwin This, course, nothing scrutiny those supra. more than the both Close however, complete suggests, that did not abandonment sort of cases we doctrine; “subjeсtive in issue of seizures so much as because an officer’s avoid the irrelevant, concluded, silentio, effectuating simply tent” in sub seizure is objec- illegal arresting for an “pretext” long there can be an officer made never Reeves, stop, tively reasonable traffic neither seizure. See United States v. (E.D.Wash.1992) (objec § man- F.Supp. Amendment nor Article Fourth subjective approach “effectively any inquiry his motiva- eliminate^] tive dates into rule”). subjective approach has tion. Goodwin, officer, In although making motivation for it did not raise a lacking grounds suspicion, essence, articulable Amendment issue. grew suspicious approach nevertheless that the occu to claims of pants pretext stop of a car riding the defendant was under the Fourth Amendment might expressly engaged engage acknowledging be in or without about to we were doing activity. unlawful He so.5 followed the car until a turn signalling, made without and then arguably In Hamilton we did the same it, ostensibly for this minor traffic thing purposes of Article 9. There seizing violation. The offiсer denied from parked officers noticed a ear that seemed out stand, however, the witness that he had been place neighborhood they pa- were “looking for a reason to them [he so trolling. register When a check revealed the check them could] out.” Goodwin claimed on business, belonged car to a the officers decid- appeal illegal pretext stop this was an ed to again, they drive the car but before under the Fourth Amendment. Under the could, the car wrong came at them in the test, modified these facts would lane of traffic. The appel- officers ordered surely raise an issue of seizure. Al lant, driver, pull over. When he could though the officer denied that his motivation provide insurance, proof a license or making the traffic was to “check out” officers decided to cite for all of hunch, his surrounding inarticulable cir Moreover, the above infractions. because he cumstances are sufficient to create an issue give would them definite information of fact whether that was in fact true. The car, about where he lived or who owned the question whether, would then become but for pursuant to what one of the officers testified (if illegitimate subjective any), motivation “proper police procedure,” they arrested the officer stop. would have made the traffic appellant so required that he would be Nevertheless, the Court concluded that the post authority a cash bond. On of Goodwin pretext issue of was not raised the facts. we holding police reiterated the that motiva-

We reasoned that because the officer “acted tion will not vitiate an otherwise lawful traffic lawfully stopping [the car] for failure to stop, again and once held that the facts signal generalized ... suspi [the officer’s] therefore did pretext not raise an issue of possible cion illegal activity of ... did not stop. argued Because Hamilton under the legal stop invalidate for a traffic I, violation.” aegis § of Article rather than the Goodwin, Thus, supra at 726. Amendment, Court by citing Goodwin we apparently long held that so as the traffic adopted purely objective seem to have test stop justified, objectively I, purposes § the officer’s for of Article 9 as well.6 fairness, alternative, (i.e., inarticulable) 5. perhaps suspicion there is an that the issue of context, likely interpretation vice-versa, pretext stop more can be raised—not as this may reading Court’s in Goodwin. It suggest. well be that alternative of Goodwin tends to by observing generalized suspicion that will not Having 6. thus resolved whether the evidence stop, vitiate an otherwise valid traffic the Court pretextual stop, raised an issue of a distinguish we next stops meant to that are a sub- question turned in Hamilton to the whether the terfuge to allow to check out inarticulable evidence raised an issue whether the full custodi- suspicions investiga- from those made to foster illegal pretext al arrest was an under Article suspicion probable tion of a reasonable or even § 9. In that context we distinction, concluded that cause. Such a if that is what the raisеd, altogether was not but for an meant, however, different profound Court would evince a testimony "proper reason. Given the that it was misunderstanding illegal pre- of what a claim of police procedure” to effect an arrest under the text is all about. An officer with reasonable circumstances, we held the evidence showed that suspicion probable suspect cause to criminal any position reasonable officer in the same activity is afoot does not need the additional Hamilton, would have arrested and therefore no justification of a traffic violation to make a lawful is, effect, pretext was involved. This to mea- investigative detention. See Bobo v. arrest, non, against sure vel the modified 574-75 That an test, 1.4(e) objective as our citation to of Pro- suspicion may officer with reasonable also fessor LaFave's treatise in Hamilton underscores. violation, observed a traffic a car for 831 S.W.2d at 331. too, that reason would not under of the tests is, Thus, stop illegal. purely for render the It thеre- Hamilton seems to have utilized a fore, only generalized only objective when allegedly officers have test to determine whether an objective test then, in favor of the that neither Goodwin preponderate nor appears, It truly subjec- Hamilton the issue of whether or a avoided over either a modified constitutionally stop prohibited. Second, is approach. 827 S.W.2d at tive Instead, they effectively decided that a purposes, importantly present and more subjec- invalidated based on the will not be objective approach clear- “the opined we long tive officer so motivation sense, more reasonable ly makes and is more objectively for the there valid basis id., and we application,” at in terms implic- stop. appears case to have Each thus the modified expressly described necessarily, objec- itly, purely “at worst unworkable and approach as analyzing pretext stop claims. tive test for & n. highly problematie[.]” best upon appeals the сourt of relied Because Having adopted at 942-43. disposition these for its in the cases own the Fourth approach under cause, essentially adopted it that test instant precedent, binding but because because Although nominally side-stepping too. alternatives, “makes sense” than the more question, appeals Article the court of concluding hardly justify otherwise we can really thing no such as an held there is Indeed, purposes of Article we illegal § 9.7 under Article prerogative even abuse our to construe would way analogi- we disposed Given the provisions and federal consti- like state Garcia, question in cal Fourth Amendment Richardson differently, see tutions In Gar- agree. supra, are we constrained (Tex.Cr.App.1993),8 cia we rejected objec- expressly the modified judicial credibility breaking stretch not because rejected it approach. tive We point, were to hold that what we somehow by Supreme constrained were purposes “makes more sense” for precisely point cеdent on is none. —there does not also “make Fourth Amendment Rather, rejected it reasons. two First, constitu- more sense” under own state perceived weight authority we the of among appeals analog.9 the federal circuit courts of tional I, 9, pretextual stop present Supreme § context Court has unlawful under Article In the the authoritatively spoken. abut modified test to determine wheth- We the ob- not allegedly pretextual approach er an of jective arrest was violative we in Garcia because believed provision. Why preferable interpretation that same state constitutional of the to be the Fourth pretext stop we treat a under a should claim of among the alternatives we consid- Amendment analyze different standard than we would a claim significant difference in the ered. Absent some that, something frankly, of arrest is we historically provisions, text of the two or some explain. impossible to cannot now It is therefore the difference in attitude between documented say definitively that Hamilton stands for the drafters, respective apparent there would be no proposition any claim of seizure I, prefer interpretation § reason to an of Article should be measured under the rather preferred interpretation any of than our different objective approach than Arti- the modified under the Fourth Amendment. We will read Article I, § cle 9. differently § than the Amendment in simply particular we can. context because reject Prosecuting Attorney’s

7. Thus we State that the this contention issue is raised in objec- 9.Judge adopting us Baird accuses of cause. See n. ante. convenience,” "judicial tive test out whatever of exactly Dissenting op. at it is he means that. upon In we were called to decide Richardson 679-680, 676-677, simply We and 681. pen register use of a could ever consti- whether suggestion writ- cannot that the instant credit his tute Su- a "search" under Article 9. The transparent engage "a er would in what he calls pen preme authoritatively had held that a attempt deliberation and to avoid mature register is not search for Fourth Amendment presented.” thoughtful of the issue resolution purposes, Maryland, Smith v. U.S. Id., Having engaged in what we at 681. himself were 61 L.Ed.2d 220 We have no doubt was “mature deliberation” persuaded by weight persuasiveness issue, Judge argues that an test Baird judicial authority Supreme critical and rejected use of should be because it tolerates "the wrong to there Court was conclude Smith that stop valid search objectively expectation pri- reasonable crime[,]” greater and that a search telephone. evidence vacy the numbers one dials on the prerogative under these circumstances “is unreasonable” We to con- therefore exercised our Of differently Supreme purposes at 679. than of Article strue Article course, linchpin “reasonableness" is as much Court had construed the Fourth Amendment. hold, instead, objec- upon We therefore that an resolve Black’s To claim relied States, tively stop valid traffic is not unlawful under Amador-Gonzalez United F.2d (5th 9, just Cir.1968), detaining Article because the where the Fifth Circuit making pretextual. doing, officer had some ulterior arrest In so motive held an appeals upon following it. Because that is what the court Court relied factors: cause, effectively affirm held was under as a nar- defendant surveillance judgment. suspect; cotics the officer’s admission that

the real reason for the was to search for J., MALONEY, narcotics; concurs in result. the fact that the officer did not normally make traffic arrests and had no OVERSTREET, J., dissents. book; traffic citation the fact that no traffic arrest; and, was issued at citation the time BAIRD, Judge, Dissenting delay between the observation of the Believing judicial convenience should not stop. traffic violation and Fifth controlling be determining factor when utilized what been Circuit has termed the provides whether the Texas Constitution “subjective” standard of review. This stan- greater protection than the United States reviewing dard for claims ar- Constitution, I dissent.1 subjective elements, solely upon rests focuses notably, arresting most officer’s motive I. Garcia, to make the arrest. 827 S.W.2d at A arrеst occurs when an individual and, Black, 942; 244-245. validly arrested for offense one Applying the same Amador-Gonzalez factors only because law enforcement officials desire Black, we determined Black’s arrest was investigate that individual for a different pretextual and held the Fourth Amendment i.e., they an offense for do not which offense — prohibited the admission of evidence dis- grounds legal valid and arrest. Black, as a covered result of the arrest. Garcia v. 939-940 at 244.-245.2 Causey, United F.2d 1179 (Tex.Cr. In Black v. (5th Cir.1979), the Circuit Fifth reversed App.1987), suspected homicide detectives essentially Amador-Gonzalez and abolished Black of murder but lacked sufficient infor explaining: bring charges. mation observing to After violations, Black religious conviction, commit several traffic detec the In matter of tives in question arrested Black order to him Elizabeth the Great is said to have re- subsequent about the to which murder Black marked that make no she would windows ly confessed. Black contended his confession the into minds of men who served her was in loyally. principle obtained violation of the Fourth relevant the Su- long Amendment his preme because arrest for the Court is so likewise: interrogate they objectively violations was him more than do no are au- do, legally about the permitted murder. thorized and their However, analysis phrase of Fourth of our Amendment as it is own S.W.2d n. 9. the analog. pre- Judge state constitutional Yet Baird Judge used herein is consistent with Clinton’s sumably that believed was rea- arrest State, opinion of the lead criticism Gabriel v. enough sonable under the Fourth J., (Clinton, (Tex.Cr.App.1995) 900 S.W.2d 721 joined opinion for he the Court’s with- Garcia concurring). (The not.) out did reservation. instant writer Certainly Judge Baird’s view was in Garcia not plurality purportedly 2. A of the Court overruled by Supreme precedent. dictated See n. State, (Tex. Gordon v. S.W.2d Black in 899 opportunity “thoughtful ante. The resolu- Cr.App.1990). recognized While a con- Gordon went tion” came and when Garcia was decided. We flict between federal and state case law concern- cannot hold that what this Court believed ing appropriate was reasоnable under the Fourth Amendment is of review for the standard I, § claims, vote, somehow not reasonable under Article 9. majority text arrest without a Gor- the don did resolve conflict. Judge appears perplexed 1. the use Clinton with Ante, phrase "judicial convenience.” irrelevant, ar- doing appropriate and held standard review motives so are claims, adopted “objective” subject inquiry. stan- rest we claims under to review such dard review Thus, Causey, 834 F.2d at 1184. Garcia, 827 S.W.2d the Fourth Amendment. “objective” adopted stan- Fifth Circuit However, specifically at 942. we noted pretextual arrests. dard to review ‍‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‍claims of made art. 9 of no claim had been under have likewise. Several other circuits done Id., 827 S.W.2d at the Texas Constitution. See, Mitchell, v. 951 F.2d 1291 United States Cummins, 943 n. 8.3 (D.C.Cir.1991); v. United States (8th Cir.1990); v.

920 F.2d 498 United States (7th Cir.1989); Trigg, F.2d 1087 United II. Nersesian, (2nd 824 F.2d 1294 Cir.

States v. 1987); Hawkins, Today, ques- F.2d States v. we are asked to resolve United (3rd Cir.1987); and, I, § United v. art. States tion Garcia: Does unanswered (1st Cir.1984). Pringle, F.2d greater provide of the Texas Constitution protection against a than the However, several federal circuits have re- Unwilling expend Fourth Amendment? jected standard and instead necessary proper to conduct the the effort adopted objective” the “modified analysis, majority question holds was review claims of United arrests. State, Cannon, (9th answered S.W.2d Goodwin 29 F.3d Cir. States v. 1994); Smith, (Tex.Cr.App.1990), Hamilton 799 F.2d United (11th Cir.1986); v. Cro- United States (“[i]t (6th and, Ante, Cir.1991); tinger, at 671-672 is at least 928 F.2d Guzman, tacitly arguable the Court has United 864 F.2d 1512 States (10th Cir.1988). modified-objec- objective approach purely Under the under Article 9_”). majority the proper inquiry “implicit- tive standard is not insists we validly necessarily, adopted purely objec- whether the officer made ly, could but stop whether circum- analyzing under same tive test claims” Ante, stances a reasonable officer would have made art. 673. under 899 S.W.2d at pur- in the absence of the invalid Nothing be from the truth. could farther Smith, pose. 799 F.2d at 709. Hamilton, express- In we both Goodwin In Garcia v. rejected ly opportunity to undertake an (Tex.Cr.App.1992), Black be- we overruled Goodwin, analysis. art. stated: cause its Fourth Amendment was Court, Amador-Gonzalez, In his predicated on brief before which Althоugh § 9 of Texas Constitu- Causey. we noted cites Article overruled However, provides split over the tion. because between the federal circuits Indeed, voting why Judge that is Clinton criticizes me for issue unresolved. Ante, majority opinion in S.W.2d at granted petitions Garcia. in the Bobo and the instant Clinton, Judge According with n. 9. reading Judge Clinton’s of Garcia case. Were opportunity for Garcia "came and went” the correct, petition been the instant should have I, thoughtful pro- § resolution of whether art. improvi- now be dismissed as refused should greater protection vides than the Fourth Amend- granted. dently ment. is a statement for several This curious Finally, if the "came and went” in Garcia time First, wholly with reasons. Garcia is consistent issue, I, why Judge § decide the art. then did our Amendment claims of Fourth Unable articulate Clinton dissent? even Black, pretext arrests. was Fourth Amendment express disapproval single the sentence to his upon opinion predicated Fifth case the opinion, objective his If “the dissent silent. in When Amador- Circuit Amador-Gonzalez. sense, approach clearly and more makes more is Causey, was overruled in the Gonzalez ante, application," terms of reasonable in underpinnings of Black dissolved. Amendment 673, Judge joined at have S.W.2d Clinton should Causey, our to the Fourth After adherence Moreover, majority opinion in if the the Garcia. would standard announced in Black Amendment compelling reasoning it Garcia was so in absurd. been the both the Fourth Amendment and Second, resolved Bobo v. our statements in Garcia and I, issues, State, § 1992), we have reserved the art. would not (Tex.Cr.App. make majority issue for later resolution. clear of this Court believed the instant instant argument authority protec- or remaining analysis cursory at best. t/s Garcia, provided by Constitution, Relying upon reasoning tion Texas majority objective point we consider contends the inadequately briefed adopted should be arrest claims and will not address it. I, § objective under art. ap- because “the Goodwin, 723-724, 799 S.W.2d at n. I.4 In proach clearly sense, makes more and is Hamilton, we stated: application.” more reasonable terms of second issue raised the State is Ante, Garcia, (quoting S.W.2d 673 whether Article Section of9 our Consti- S.W.2d at provides greater tution protection from pretext arrests than the Fourth Amend- III. believe, however, ... ment. We do not compelled We are not rights limit the necessary that it is either appropriate guaranteed by the Texas Constitution to to resolve this issue since the facts of this provided those in the United States Constitu- case cannot be construed constituting State, tion. Heitman v. stop. arrest or also, (Tex.Cr.App.1991). See PruneYard Robins, Shopping 74, 81, Center 447 U.S. Hamilton, Thus, though 2035, 2040, (1980); 100 S.Ct. 64 L.Ed.2d 741 majority doggedly otherwise, maintains and, Cooper California, 58, 62, 386 U.S. Goodwin and Hamilton did not implicitly 788, 791, (1967). 17 L.Ed.2d 730 In- adopt contrary, test. To the 'deed, Heitman we held may art. expressly those question cases avoided the provide greater protection than the Fourth (as above, noted Hamilton was not even a Id., Amendment. 690. Since case). majority intention- Heitman, greater we have found protection ally disregards express language Court’s State, on twо occasions. Richardson v. in disingenuous support effort to its result. (Tex.Cr.App.1993); S.W.2d 944 Autran Moreover, majority’s assertion that (Tex.Cr.App.1994) S.W.2d 31 ” Goodwin and Hamilton “sub silentio (plurality opinion). standard under art. Richardson, we considered whether the 9, Ante, 899 S.W.2d at fails for an pen register installation of a constituted a additional reason. In Bobo v. search under art. 9. The installation (Tex.Cr.App.1992), granted S.W.2d 672 pen register use of a is not a search review to determine the viability continued under the Fourth Amendment. Smith v. arrest doctrine under the Texas Maryland, 442 U.S. 99 S.Ct. However, Constitution. at 574. we later L.Ed.2d 220 In our consideration of decided Bobo was not the appropriate case to 9, art. provided greater and whether it issue, specifically resolve the reserved protection than the Fourth day. issue another Ibid. Because including: considered a number of factors Bobo was decided after Goodwin and Hamil- comparable jurisdic- the decisions of state ton, the latter cases cannot adopt be read to tions, scholarly Supreme criticism of thе evaluating standard for claims Court, subjective expectations pri- assertion, arrests. To make this limited, vacy spite of a confidential disclo- expressly when the issue had been reserved Richardson, sure. 865 S.W.2d at 949-953. deliberately Garcia and Bobo is to mis- departed We then from established Fourth precedent. state our Such an intentional jurisprudence Amendment in- and held the

mischaracterization opinions earlier pen register may stallation of a constitute a by should not be sanctioned this Court. Id., search under art. 9. 865 S.W.2d 953-954. Having portion devoted the substantial opinion attempting to Autran, convince the reader we considered whether did expressly not mean what we may, 9, lawfully officers under art. in- Hamilton, majori-

stated in ventory Goodwin and the the contents of closed containers emphasis supplied 4. All is unless otherwise indi- cated.

677 guaran- and Id., preter of Constitution at 42. the State in a vehicle. found from us demands more such an in- tor of civil liberties permits The Fourth Amendment responsibilities our long followed de- not shirk ventory so as the officеr and we should or, As Oliver policy simply the search furthered those burdens. partmental alleviate inventory. stated, re- justice Florida v. purposes of an once “[i]f the Holmes Wendall 1, 1682, Wells, ascertained, difficulty 110 S.Ct. 495 U.S. to be the quires [a] fact (1990). try.” whether art. refusing To determine doing ground L.Ed.2d so is protection than the provided greater Holmes, The Common Law O.W. Amendment, considered several Fourth the of the Texas Constitu-

factors: derivation IV. only Fourth tion from not the well; out, as prin- from other state constitutions taking easy way the Rather than constitution; our framers of the intent requires consid- cipled of this issue resolution our history application constitu- ju- following comparable factors: eration the comparable jurispru- provision; ‍‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‍articles, tional scholarly risprudence, relevant and, states; practical dence from other history application by implicated issue policy considerations practical policy consider- as well Autran, at 37- the Court. before ations. provided § 9 art. 41. We concluded greatеr privacy interest closed containers A. Thus, an in- than the Amendment.

ventory pre- closed container ignores the majority The role of simply sumed reasonable under art. in search and seizure text arrest doctrine departmental pol- because an officer followed jurisprudence. The arrest doctrine Id., icy. Accordingly, at 42. premised upon a constitutional intention provide Richardson and Autran frameworks arbitrary or deter and warrantless searches to determine when the Texas Constitution York, 573, Payton v. New 445 U.S. seizures. provides greater protection than its federal 1371, 1378, 21, 583, 21, n. n. 100 S.Ct. counterpart. Prouse, (1980); Delaware v. L.Ed.2d 639 1391,1396, L.Ed.2d inquiry U.S. into whether State Consti- (1979) (Fourth Amendment intended provides greater protection tution than its “in to safe- easy task restrict discretion order counterpart Federal is no and the security of individuals guard privacy should not be resolution such an issue invasions.”); arbitrary v. Cal- lightly. arriving today’s against deci- Chimel taken Yet 752, 761, sion, ifornia, majority ignores the uti- 395 U.S. 89 S.Ct. framework (1969); Heitman, Instead, Autran. lized Richardson and L.Ed.2d 682; majority Kolb v. forgoes mature аnd S.W.2d at deliberation also, (Tex.Cr.App.1976). See important issue on the of S.W.2d resolves basis Salken, judicial Barbara The General convenience—the Warrant of Ante, Century ? A Fourth Amendment apply. at Twentieth is “easier” Thus, to Arrest majority judicial Discretion elevates Solution to Unchecked Temp.L.Rev. previously Offenses, 62 convenience over all of the factors Traffic 1989) (“The fourth independent (Spring amendment making utilized when an consti- arbitrary indis- designed interpretation.5 rights guaran- prevent tutional permitted by general by our should be criminate searches teed State Constitution assistance.”) These comprehen- more warrants and writs determined threatened protections are simply than which standard is more constitutional sive purports what to be job when an makes make the Court’s officer convenient would the con- in order to circumvent inter- lawful arrest easier. This Court’s function final App.1993). in Rich- surprising. all the factors considered is somewhat Of I must confess this Clinton, majority, simply ardson, among Judge speaking for the judicial conveniеnce was not per- ignores independent examination he S.W.2d at 949-953. them. Richardson, (Tex.Cr. S.W.2d 944 formed in 865 678 requirement

stitutional of a search warrant warrantless search: the search must be lim- See, supported by probable United cause. scope ited in justified by to that which is Trigg, (7th 1037, 878 F.2d particular purposes by excep- served Cir.1989). also, tion.”). As Arizona, explained: one commentator Mincey See v. 385, 393, 2408, 2413, U.S. 98 S.Ct. ... 57 L.Ed.2d The [Fourth] amendment was de- Ohio, (1978); Terry 1, 25-26, signed U.S. safeguard privacy and securi- 1868, 1882, 88 S.Ct. (1968); 20 L.Ed.2d 889 ty against arbitrary govern- individuals and, Bass (Tex. 632, invasions, ment prevent government and to (“A Cr.App.1987) warrantless search must be power abuse of resulting oppression. strictly circumscribed exigencies Pretextual implicates conduct both initiation.”). justify which The policies. of these operates arrest deny doctrine unethical Aro, Note, The Pretext Problem Revisit- Ed peace justify officers the means to an other- ed: A Exploration Doctrinal Bad Faith in wise unconstitutional arrest.7 Cases, Search and Seizure 70 B.U.L.Rev. Ill, (1990).6 125-126 adoption The standard to Under arrest an offi- pretextual reviеw claims of pre- arrests will suspects cer who activity, criminal judicial but lacks vent arbitrary review of the use of probable cause support his suspicion, may power by police officers. A suspect arrest a on a minor violation in typically stems from the exercise of an offi- order to avoid the requirement constitutional discretionary authority, cer’s such as a traffic Instead, of a warrant. stop. officer must meet precludes standard re- requirements constitutional for a war- view of the reasons behind the traffic See, Royer, Florida v. rantless arrest. 460 well as the actions committed the officer 491, 500, 1319, 1325, U.S. 103 S.Ct Guzman, conducting stop. 864 F.2d at (1983) (“The 1516; and, L.Ed.2d 229 [Fourth] Amend- Chapin, State v. 75 Wash.App. protection ment’s 460, (Div. is not diluted in 300, those situ- 879 P.2d Thus ations where has been determined that precludes our exami- legitimate law justify enforcement interests nation of whether the arrest resulted from Supreme also, expressed Wells, 1, 4, Court has concern Florida v. 495 U.S. 110 S.Ct. objectively over whether valid conduct 1632, 1635, (1990) ("[A]n 109 L.Ed.2d 1 invento- See, subjectively will exonerate a invаlid motive. ry general search must not be a ruse for a rum- States, Steagald 204, 215, v. United 451 U.S. maging incriminating in order to discover evi- 1642, 1649, (1981) (arrest S.Ct. 68 L.Ed.2d 38 dence.”); and, Brown, 730, Texas v. 460 U.S. justify entry warrant party’s will not into third 737-738, 743, 1535, 1541, 1543, 103 S.Ct. may home because pre- that warrant be used as (1983) (Under L.Ed.2d "plain view” doc- v, search); Bannister, text to Colorado 449 U.S. trine, [police] “the officer must discover incrimi- 2, 42, 4, 4 n. 101 S.Ct. 44 n. 38 L.Ed.2d 427 nating ‘inadvertently’ evidence say, which is to (1980) (no evidence traffic citation issued as [they] text); may Robinson, he 218, not 'know in advance the location United States v. 414 U.S. 2, 2, it,’ [certain] n. 94 S.Ct. rely- 494 n. 38 L.Ed.2d evidence and intend to seize (Powell, J., (1973) concurring) (validhy ing plain of custo- on the only view doctrine as a dial arrest would be different if there were evi- [pretense].”). pretextual); dence arrest was 414 U.S. at (Marshall, J., dissenting); S.Ct. at 482 noted, employing As one commentator Florida, 260, 266-267, 414 U.S. Gustafson S.Ct. power to arrest for a minor offense as a 488, 492, (1973) (Stewart, 38 L.Ed.2d 456 J., (if concurring) petitioner had claimed his ar- investigate major ... crime is unconstitu- rest for minor per- traffic offense was power tional because the to intrude is restrict- made); might suasivе claim for relief have been investigation ed to the of the minor offense. States, 217, 226, 230, Abel v. United 362 U.S. Just power as the fourth amendment limits the 683, 690, (an (1960) S.Ct. 4 L.Ed.2d 668 given police to search to the minimum extent may administrative warrant to search not be necessary, probable the use of cause for minor used to activity); search for evidence of criminal may purposes offenses not be abused for unre- States, 493, 499-500, Jones v. United 357 U.S. lated to the offense. 1253, 1257-1258, (1958) (a 2 L.Ed.2d 1514 Jonas, Comment, Daniel Pretext Searches and the permissible search incident to arrest becomes Fourth Amendment: probable exists); Unconstitutional Abuses unconstitutional when no cause Power, (1989) Lefkowitz, United States v. 285 U.S. U.Penn.L.Rev. 420, 424, (footnote omitted). 52 S.Ct. 76 L.Ed. 877 See eigh- analogous faced it to the situation procedures, or whether police standard English century and colonists when teenth investigation great- allow was a to a cer- power search evidence the er than that allowed under our Constitution. for of expand- manner crime was used in a tain majority opinion, the officer need Under thе beyond legitimate ing the search (objectively) only appear conduct [his] “make outrage moral from scope.... arises if it is to avoid the exclu- lawful” order legal is process. abuse the Power the of Burkoff, sionary of art. measures being reasons other than those used U.Det.L.Rev. at 377.8 granted. it which was Jonas, at 1817. In its 137 U.Penn.L.Rev. B. doctrine, pretext arrest rush to abolish the majority also abolishes our Constitutional the policy, As a of the arrest matter every be requirement that arrest and search of adoption doctrine be retained. The should reasonable. resulting the standard and the abo- pretext arrest Thus the of the abolition ignores lition of the arrest arbitrary only to the protect doctrine serves requirement police that rea- the conduct be Indeed, police authority. use of abusive essence, purpose sonable. of the everyday citizens violate thousands of who police text doctrine to deter from arrest is subject regulations be minor traffic would authority using a person to detain lаwful police to unfettered discretion to whom a minor offense order to search for evi- stop_ of [I]n absence standard- majority’s dence of a more serious one. The discretion, police limit procedures ized that upon police focus a is officer’s conduct lawful subjected ... whether arewe premised assumption on the conduct interrogation lengthy and intrusive Garcia, See, is also reasonable. 827 S.W.2d belts, forget when we to wear our seat (“... officers, stop at 944 turns on more “the of the than state appellee detention of for a traffic violation us, or, stops digestion of officer who reasonable under Amendment likely, upon obsequiousness, our more Yet, principles_”). police conduct lawful automobiles, formality price of our may always not be reasonable. Art. dress, our hair or the our the shortness of prohibits sei- unreasonable searches and color of skin.” our zures. Giacona Guzman, (quoting F.2d at 1516 Amster- The determination dam, Perspectives on Fourth Amend- constitutionally whether is a search reason- (1974)). ment, 58 Minn.L.Rev. depend upon judicial able should not convenience, upon but circum- actual Y. stances under which the search is conducted. A. (Tex.Cr. Taylor App.1967). rec- doctrine adoption I the sub- do advocate ognizes may lawful at authority pretextu- jective claims of review unreasonably times be purely subjective exercised. And the al arrests because both the stop of a as a purely use valid traffic standards allow escape greater peace judicial search for evidence crime is officers review Rather, Indeed, using an I advocate unreasonable. is their conduct.9 explained: purely standard we never 8. But as Professor Burkoff 9. Under intent because review officer’s behind availability inquiry ... the mo- of an into legal, Similarly, analysis ends. if the searching arresting tives law enforcement subjective desirable, purely standard an officer under only critically nec- officers is not essary may simply legitimate differ- articulate reason law in order to insure that enforcement deterred, arrest. ent from the one which motivated the through generally officers will be See, Arra, rule, n. exclusionary United States v. 630 F.2d application en- from 944; Cir.1980); Garcia, (1st gaging activi- fourth amendment LaFave, Search ty- W. and Seizure: A Treatise Aro, 5.2(e) (2d also, Burkoff, at 459 See on the Fourth 66 U.Det.L.R. at 373. Moreover, subjec- purely ed. because B.U.L.Rev. 151-152. objective review which considers tionally, the officer’s scholarly several propose articles subjective Aro, in making motive the arrest. the modified standard to review 215, 152, 166-167; 70 B.U.L.Rev. at 147 n. pretextual See, stops and arrests. Butter- and, Burkoff, 66 U.Det.L.R. at 373. Accord- foss, (modified Ky.L.J. 79 at 57-60 ingly, I believe the constitutional concerns regulate test most easily suitable fabricat upon which the arrest doctrine is arrests, ed such as stops); premised are best adoption addressed Aro, 147-151, 70 165-168; B.U.L.Rev. at objective” of the “modified standard of re- Burkoff, 373; and, 66 U.Det.L.R. at Matthew See, I., and, supra, view. Part United States Crider, Haskell, S. Case Note: State v. 645 Smith, 704, (11th Cir.1986). v. 799 F.2d 708 (Me.1994), 629, A.2d 619 36 S.Tex.L.Rev. Admittedly, this standard is less convenient 647-654 apply, requires the Court to and a morе detailed performs than the Court B. today because the requires standard Turning case, to the instant I would find give partial at least consideration to pretextual. the arrest Austin Police Ser- the officer’s in making motives an arrest. geant Duane responded McNeil com- objective standard, Under this modified plaint of a “suspicious male vehicle ... proper inquiry is not whether the officer possibly trying buy drugs....” When validly could have made the arrest but appellant McNeil observed parked in a truck whether under the same circumstances a which matched description, the vehicle’s reasonable would have made the ar- officer appellant McNeil asked going “what was on.” rest in the absence purpose. invalid Appellant responded gas. he was out of Mo- Smith, also, Guzman, 799 F.2d at 709. See later, appellant ments away drove and turned 864 F.2d at 1517. right, failing signal. to use a turn At this Moreover, the modified time, a citizen appel- informed McNeil that has been found to be workable and effective subject lant was the complaint. deterring use of au pursued ultimately McNeil stopped ap- thority by jurisdiсtions the federal and state pellant. McNeil stated appellant he See, Guzman, which have it. 864 making a turn signaling, without but he 1517; F.2d at United Crotinger, 928 “felt something drag-related.” (6th 203,206 Cir.1991); Smith, F.2d 799 F.2d McNeil described as a “kind of 711; Miller, 546, United States v. 821 F.2d research-type situation.” appellant After (11th Cir.1987); Valdez, United States v. produce proof insurance, unable to (11th 1448, Cir.1991); F.2d Terrell McNeil appellant’s pockets. asked to search Petrie, 1342, v. F.Supp. 1345-1346 consent, appellant’s With McNeil removed a (E.D.Va.1991); Haskell, State 645 A.2d syringe appellant’s from pocket shirt 619, (Me.1994); Chapin, 303; 879 P.2d at appellant’s heroin from pants. McNeil then Lara, A-93-799, State v. No. 1993 WL appellant arrested possession of a con- 527872, 21,1993); *4 (Neb.App. Dec. State Finally, trolled despite substance. McNeil’s Hunter, 402, 700, N.C.App. 420 S.E.2d stated intention to for failure to use his (1992); Lopez, Commonwealth v. signal, turn McNeil did not have a traffic 252, Pa.Super. 177, (1992); 609 A.2d 181-182 possession. citation book in his McNeil ad- Morocco, 421, State v. N.CApp. mitted he would have had to call another 545, (1990); State, S.E.2d Kehoe v. officer in order to issue a traffic 1094, (Fla.1988); So.2d Limonja citation. Com., 416, Va.App. 12, 375 S.E.2d 15-16 (1988); State, Tarwid v. Ga.App. readily It is apparent suspect that McNeil (1987); S.E.2d 64-65 Brown v. ed illegal drag was involved in ac 738 P.2d (Wyo.1987). 1095-1096 tivity. Nevertheless, Addi suspicions McNeil’s illegal any Butterfoss, tive standard declares Cf, arrest in which Importance arrests. Edwin one, accompanies an ulterior motive a valid Ulterior Motives and Fabrications in the Su- shielding standard has the preme inadvertent effect of Court’s Fourth Amendment Doc- Pretext trine, suspected (1990-1991). those Ky.L.J. crimes from otherwise valid (2) proximity of the arrest probable temporal to establish alone were insufficient consent; stop appellant. See Amores v. cause to (Tex.Cr.App. (3) 413^415 intervening circum- presence 1991) (officer probable cause to arrest lacked stances; and conveyed by on information radio dis based (4) flagrancy purpose and, Pope patcher); v. State 695 S.W.2d misconduct. (of 1985) (Tex.App Dist.] [1st . Houston 604-605, at 2261- 95 S.Ct. U.S. probable cause to arrest based ficer lacked to the factors applying 2262. After these complainant’s that the оn statement case, between instant I find attenuation possibly “might gun a and defendant have illegal appellant’s consent arrest and it.”). used fail intended to use McNeil First, appel- did not advise search. McNeil signal a and ure to search rights requesting lant of his Miranda before drug activity appellant for such search —a advise appellant’s The failure to consent. probable cause. which otherwise lacked rights against a of his militates accused Second, finding appellant’s of attenuation. standard, a Under modified ‍‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​‌‍immediately after occurred consent to search officer, without reasonable Thus, pretextual proximity arrest. illegal pur- and citation book absent McNeil’s arrest the consent time between the and stopped appellant. pose, would Third, there against militates attenuation. supported by This conclusion is further intervening were no circumstances between stopped appellant. McNeil’s actions after he pretextual appellant’s arrest and consent. stopping a After vehicle for a traffic offense Thus, against atten- the third factor militates “pat might reasonable officer conduct a uation. down” search driver for the officer’s own Ohio, 1, always safety. Terry Fourth, pretextual 392 U.S. 88 S.Ct. arrest will (1968). 1868, Instead, be flagrant police 20 L.Ed.2d 889 misconduct constitute standard, cause, ap- conducted an search McNeil invasive under the modified York, pellant’s pockets. Cf, v. New made the Sibron officer would not have reasonable 65, 40, 1889, 1904, 392 U.S. 88 S.Ct. reflects took ad arrest. The record McNeil (1968) (police vantage L.Ed.2d 917 officer’s invasive arrest situation to search of an appellant’s pockets drugs. category search of made in- into the of cases with “This falls narcotics, ‘quality purpose tent to discover rather than a self- had a which the arrest fulness,’ protective pat justi weapons). sought down to discover consent and the investigate fy McNeil’s intentions were to for evidence unrelated to search drug activity. search for evidence of basis the arrest.” Arcila (Baird, J., (Tex.Cr.App.1992) Brоwn, (quoting dissenting) U.S. C. 2262). As 95 S.Ct. at with the aforemen Because consented McNeil’s factors, against attenua tioned this militates following stop, pretextual search we must Brown, Thus, con appellant’s tion. under admissibility consider the of the fruits of that pretextual from the sent not attenuated under attenuation doctrine of search failing judge arrest the trial erred Illinois, Brown v. 422 U.S. 95 S.Ct. suppress of that the fruits search. also, L.Ed.2d See Jua- (Tex.Cr.App. rez v. VI. Brown, fac- Under we examine four misreading of majority’s intentional the seizure of tors to determination whether precedent, elevation sufficiently attenuated from an evidence primary as the factor Court’s convenience illegal officer’s detention: independent state constitutional (1)whether attempt mature transparent is a to avoid the accused received Arizona, thoughtful 384 U.S. 86 deliberation and resolution [v.

Miranda (1966)] presented. issue is issue I believe when the 16 L.Ed.2d fashion, I, § 9 principled art. warnings; resolved in a requires adoption of a modified

standard to review arrests. Un- standard,

der that the instant arrest was

pretextual. Accordingly, I would reverse the

judgment of Appeals the Court of and hold evidence obtained as a result of the

text arrest inadmissible. majority engages

Because the in a mis-

leading unprincipled constitutional inter-

pretation in its haste to abolish the I dissent. SUTTON, Appellant,

Daniel Charles Texas, Appellee.

The STATE of

No. 1080-93. Texas,

Court of Appeals Criminal

En Banc.

June Lenoir, Dallas,

Martin appellant. Vance, John Atty., Dist. K. Suzanne Per- kins, Nichols, Nancy Robb and David Asst. Dallas, Huttash, Attys., Dist. and Robert Austin, Atty., State’s for the State.

Case Details

Case Name: Crittenden v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 17, 1995

Citation: 899 S.W.2d 668

Docket Number: 576-93

Court Abbreviation: Tex. Crim. App.