Juarez v. State

change and it does not the conclusion we already point

have reached. The of error is

overruled. stated, however,

For the reasons

judgment of conviction is reversed and the

cause to the trial remanded court.

WHITE, J., concurs the result. JUAREZ, Appellant,

Raul J. Texas, Appellee. STATE

No. 723-85. Texas, Criminal

En Banc.

Sept. PETITION APPELLANT’S

OPINION ON REVIEW FOR DISCRETIONARY ONION, Presiding Judge. appeal from a conviction

This was taken over four possession for marihuana pun- jury appellant’s ounces. The assessed years’ imprisonment ishment seven imposition of probation. The recommended appel- suspended and the the sentence was for seven placed probation on lant was appeal given. years. Notice Appeals affirmed The El Paso Court of opinion, in an unpublished the conviction alia, appellant’s volun- holding, inter autho- tary consent to search his vehicle regardless of rized the warrantless search impropriety stop. initial Juarez Paso, (Tex.App. No. 08-84- v. State —El 00277-CR). ground In his of review sole petition discretionary in his for appellant contended the review holding that was not the consent “erred granted tainted arrest.” We determine the correctness petition said holding Appeals. the Court companion and male February stopped in El on Paso automobile traveling in an while name appellant’s had rented in which been Chicago ad- night, giving a preceding dress. El Paso Ramirez of the

Captain Ramon at 5:30 or Department testified that Police re- February he had on 6 a.m. suspects, about two ceived information the automobile transaction and marihuana informer; from a confidential assigned Officer 7:30 a.m. he that about two “case.” About Ted Whorton by telephone reported hours later Whorton produc- “had radio that surveillance confi- exactly the information that the ed had dential informer stated.” Paso, Hill, El Gary appellant. for Beasley testified Detective Karl had February on 19th he p.m. 12:15 about Simmons, Atty. and Rob- W. Dist. Steve assist called Detective Whorton been Paso, Dinsmoor, Atty., Asst. El ert Dist. surveillance, had that he him with Austin, Huttash, Atty., State’s Robert parking fifth floor joined Whorton the State. They Holiday Inn. the downtown area of Oldsmobile, of a white began a surveillance Texas license there. parked Beasley VLR and east on Montana. and Whor- Beasley explained Whorton, a veteran ton radioed for assistance. about a Within police officer, knowledge Beasley’s who to city from limits on mile Montana which many pos- had made arrests for marihuana Carlsbad, highway leads to the New session, walked over to check the white out Mexico, Cap- stopped. was Oldsmobile Oldsmobile, that Whorton around walked Ramirez, Navarez, Whorton, tain Detective the vehicle if he to see could detect Beasley and a officer or officers customs When, suppres- odor of marihuana. at the present were at the time. hearing, Beasley sion if was asked Whor- appellant Ramirez that testified ton had him he informed whether or not driving car, explained that he to the marihuana, Beasley had smelled answered appellant passenger and his reason for in the then re- affirmative. record stop, he read their Mi- and that them flects: rights.2 appel- randa Ramirez then asked (defense counsel): object “MR. I HILL if he lant would consent to a search of the anything to told this Detective Whorton Appellant asked to his vehicle. conver with officer, Your Honor. companion, permitted him to and Ramirez Well, “THE I’ll sustain the COURT: (Ramirez) do so as he to make “wanted objection. absolutely do- sure he knew what he was (prosecutor): “MR. Your DINSMOOR conference, ing.” After stat- Honor, entering we’re not it for the truth ed, “Okay. it.” A form of sign I’ll written matter, entering All sir. we’re A consent was executed. probable police for the cause in offi- this identi- trunk revealed substance which was mind; words, present cer’s in other for a being fied as and chemist marihuana impression, as sense to whether weighing and and one hundred fourteen not, just true or to as whether pounds. half probable

this officer then would have to stop cause the Defendants. showing guns There were was no Well, “THE going I’m to COURT: drawn or that threats coercion objection overrule the—I’ll sustain the obtaining con- by the officers used I’ll not allow the officer to tell what The issue consent was sent search. Now, Detective told he Whorton him. no evi- Appellant uncontested. offered do, said what he saw the detective which issue, simply maintaining dence this admissible, I I think is but don’t think it’s consent, discov- if there even to what the told admissible as detective subsequent search was tainted ered him.”1 illegal stop, allegedly and therefore Beasley he nor related that neither suppressed. must be warrant, had an arrest or search Whorton hampered in its efforts in The State was to main- they but when called someone to the demonstrating probable cause due they secured tain surveillance while three of Detective Whorton. Over absence one, Captain had them Ramirez informed elapsed from the years and four months Beasley no one was available at time. until the trial. Whor- date offense afraid and Whorton were the Oldsmobile have from the ton was retired shown they if the hotel to would be moved left good force, apparently “not on police Shortly two secure a warrant. thereafter terms,” him efforts to locate all got left the men into the Oldsmobile and presence were un- his area, secure witness Oregon parking drove down Street Nevertheless, the State relies Paisano to Montana successful. Paisano east on (Tex.Cr.App.1974). See Hearsay probable S.W.2d also is admissible on issue Matlock, 164, v. United States or to cause to arrest or search show 988, (1974). 297, State, 39 L.Ed.2d 242 Murphy v. S.W.2d search. State, (Tex.Cr.App.1982); v. Adams State, Arizona, (Tex.Cr.App.1977); v. 384 U.S. Hutchinson 2. Miranda v. S.W.2d 598 Pilcher to show that upon prosecution justify consent to upon the voluntarily given. freely and consent was search. Carolina, 391 U.S. Bumper North In Kolb v. 532 S.W.2d (Tex.Cr.App.1976), it was written: State, 119 Tex.Cr. Frazier (1968); purpose of the Fourth “The basic Scott R. 43 S.W.2d Constitution, Amendment, 139 S.W.2d 139 Tex.Cr.R. security safeguard privacy is to State, 148 Tex.Cr.R. (1940); Compton v. against arbitrary invasions of individuals (1945); Paprskar v. 186 S.W.2d Berger officials. See by governmental (Tex.Cr.App. York, New prosecu 1972). requires The burden State, (1967); Haynes v. 1040 positive given was tion to show consent (Tex.Cr.App.1971); 739 475 S.W.2d must not be unequivocal, and there and State, (Tex.Cr. v. Brown 481 S.W.2d 106 implied. Al coercion, actual or duress or I, Article App.1972). The same is true of State, (Tex.Cr.App. v. 120 len 487 S.W.2d Constitution, and it is Sec. 9 of the Texas 1972). discharged cannot be This burden under the Fourth and Four well settled showing acquiescence no more than Amendments of the United States teenth Bumper v. authority. a claim of lawful that a search conducted Constitution Carolina, supra; v. Amos United North upon probable without a warrant issued 266, States, 313, 317, 41 S.Ct. 255 U.S. ‘per se unreasonable ... subject cause is (1921); v. 267, Johnson 654 65 L.Ed. only specifically and to a few established States, 333 U.S. 10, 13, 68 S.Ct. United Katz v. exceptions.’ well-delineated (1948); Paprskar 367, 368, 92 L.Ed. 436 States, 347, 357, 389 U.S. 88 S.Ct. State, supra. v. Coolidge 507, 514,19 (1967); L.Ed.2d 576 443, 454, Hampshire, v. New Tex.Jur.2d, Rev., 403 U.S. Part in 51 “As stated 455, 2022, 2031-2032, 91 42, 722; S.Ct. Seizures, p. I, Sec. Searches and “ Maroney, v. (1971); Chambers 564 399 not to be to a search is ‘Consent 42, 51, 1975, 1981, 90 26 L.Ed. U.S. S.Ct. shown lightly inferred. It should be (1970). v. Schneckloth 2d 419 See also evidence, convincing and by clear and Bustamonte, 218, 2041, S.Ct. voluntary and any consent must be (1973); Stoddard v. 36 L.Ed.2d 854 psychologically physically neither nor State, 744, (Tex.Cr.App. S.W.2d coerced....’ 1972). con- “And it must be remembered specifically “One of the established ex only in granted if search is invalid sent to ceptions requirements to the of both a lawful authori- to a claim of submission probable warrant and cause is a search States, supra. ty. Amos v. United pursuant is conducted to consent. consent to whether a Bustamonte, v. supra; Schneckloth question of ‘voluntary’ is a search was States, 582, v. Davis 328 U.S. totality from fact to be determined 593-594, 1256, 1261-1262, v. Schneckloth circumstances. all the States, (1946); Zap v. United L.Ed. 1453 State, Bustamonte, supra; Paprskar v. 1277, 1280, 328 U.S. omitted.) (Footnotes supra.” protections af L.Ed. 1477 The State, 692 S.W.2d See also Meeks Fourth Amendment and forded (Tex.Cr.App.1985). 508-510 I, 9) (Article the State Constitution Sec. person is under consent fact that a waived an individual State, itself, prevent Paprskar not, ing to a search. arrest does Al giv being voluntary consent from S.W.2d free and State, State, supra, (Tex.Cr.App. len v. p. en. Meeks v. DeVoyle v. cited. Paulus v. 1972); authorities there (Tex.Cr.App.1971). (Tex.Cr.App.1982). 633 S.W.2d the factors to be merely one of Custody settled that the burden “It is also State, 589 S.W.2d Nastu v. convincing considered. proof by clear and 434 (Tex.Cr.App.1979), cert. den. 447 if only be held admissible it is determined 64 L.Ed.2d 862. that the consent was both exploitation prior illegality. an arrest, Notwithstanding * * * But, it is thus true that a consent search, freely voluntarily consent to to search which fails the voluntariness given, recognized is still one of the excep prior illegality may just test because of a requirement tions to the of both a warrant convincingly be said to be a fruit of probable cause for a valid search. prior illegality, poi- the fruit of the Bustamonte, Schneckloth sonous tree doctrine also extends to in- 2041, 2045, validate consents which are volun- 89; supra, Myers Kolb v. tary_” (Emphasis original.) (Tex.App.— Odom, In People Ill.App.3d Amarillo, 1984). 39 Ill.Dec. N.E.2d LaFave, (A Search and Seizure Trea- Ill., (Appellate Dist.1980), Court of 3rd Amendment), Ed., tise on the Fourth 2nd was stated: 8.2(d), pp. Vol. 189-190 it is “However, finding that the defend- stated: voluntarily ant’s consent to search was “(d) illegal police Prior action. When given step in is but one the determination upon called to determine admissibility search, propriety of the of the because physical by pur- evidence obtained even if the consent were it still ported illegal police action, same form of may exploita- have been obtained consistently the courts do not follow the illegal tion of an arrest.” approach same in characterizing the is- Taheri, See also 648 United States v. question sue. Sometimes the in is stated (9th Cir.1981); Cates, 598 State v. 202 terms of the previously discussed ‘totali- (1987) (not 522 A.2d 788 Conn. with- ty of the circumstances’ voluntariness standing separate voluntariness of consent test, in which case the court undertakes exploitation necessary). inquiry into prior illegality to ascertain whether the Texas, at least since Schneckloth and the other circumstances resulted in Bustamonte, (1973), supra v. and United person purportedly coercion of the who Watson, States v. consented to the search. other On occa- (1976), “totality sions, however, question is said to be the circumstances” voluntariness test has whether consent was a fruit of the See, e.g., generally employed. Meeks been instances, prior illegality. In the latter State, (Tex.Cr.App.1985); v. 692 504 S.W.2d making the courts are use of the so- State, State, supra; Kolb v. Resendez v. called poisonous ‘fruit of the tree’ doc- 523 S.W.2d 700 Potts v. trine, whereby Wong Sun v. United State, (Tex.Cr.App.1973). 523 500 S.W.2d [371 occasion this Court has considered that On (1963) instructs, it must be ] question is the consent was a whether ‘whether, granting determined establish- prior illegality utilizing Wong fruit of the primary illegality, ment of the the evi- States, along supra, with Sun objection dence to which instant is made voluntariness test. the above described by exploitation has been come at of that State, (Tex. Armstrong v. 550 S.W.2d 25 illegality sufficiently or instead means Cr.App.1977)(opinion rehearing); on Dick distinguishable purged pri- of the be State, (Tex.Cr.App. ey v. S.W.2d mary taint.’ While there is a sufficient 1986); Miller v. overlap of the and fruits voluntariness (Tex.Cr.App.1987). may tests that often a result by using independent- reached either 692 S.W.2d one Meeks ly, extremely important (Tex.Cr.App.1985), held the road- to under- Court (i) stop illegal then turned to stand that the two tests are not identi- block cal, (ii) consequently validity of the of the consent the evidence concluded, purported “We hold obtained consent should search. Court 410) may produce the at totality of the circumstances that from a See ‘attenuation.’ requisite degree of voluntarily not appellant Meeks did Fortier, 553 P.2d 113 Ariz. State search, that the trial court erred to the Sesslin, People Cal.2d suppress.” motion to overruling in her Cal.Rptr. 409 at the “to- seemed follow While the Court test, cert. den. P.2d 321 voluntariness tality of circumstances” 772.” factor in the did stop. The result would have been same of circum- discussing “totality After either test. reached under the facts of test and stances” voluntariness Armstrong the case the court concluded: (Tex.Cr.App.1977) (opinion rehear- fact of the is true when the “While this ing), light written: it was illegal considered detention is we conclude of all circumstances hold that under the circumstances

“We through exploita- the evidence seized satisfy does not the detention here ‘by than means just tion rather The detention here was above test. purged sufficiently distinguishable to be fishing expedition Fourth the sort of Wong Sun v. I, primary taint.’ Article 9 of the Amendment and Sec. States, did Constitution, designed supra. The State pro- State its sustain burden.” hibit. argues “The that even if the State In Luera v. consented to the (Tex.Cr.App.1978), part: this Court stated his car trunk and therefore the search of unlawful, detention, if have overruling

trial court did not err apparent volun appellant’s also tainted suppress motion to evidence of the items tary the trunk. See consent to search urges found therein. The State that the (Tex. Armstrong v. 25 550 S.W.2d search, voluntarily made, to dis consent State, 505 Cr.App.1976); Truitt v. S.W. sipated the taint of the detention Evans v. (Tex.Cr.App.1973); 2d 594 the search made the fruits of admissible. 530 932 v. (Tex. Potts See (Tex. McDougald 40 v. Cr.App.1973). Dickey, supra Cr.App.1977).” also See poisonous “The ‘fruit of the doc- tree’ (1986); Miller, supra (1987). in Wong Sun v. explained length trine Ap In the Court of Fifth Circuit States, 471, 407, United 371 83 S.Ct. that, peals rule when the is well established serves to exclude voluntary consent attempting prove to to only products evidence not the direct illegal stop, following an the search products also indirect of Amend- Fourth has a much heavier burden to Government ment violations. Evidence not classi- satisfy proving than consent when exclusion, requiring fied as a fruit how- legitimate search after initial ever, merely because it would not have Jones, 475 F.2d v. United States arrest. the in- primary been discovered ‘but for’ v. Bal (5th Cir.1973); United States vasion. lard, 913, (5th Cir.1978); F.2d Troutman, 604, v. United States search, “By consenting to a an individ- Ruigo v. (5th Cir.1979); United States right may his constitutional mez, (5th Cir.1983); ual waive United 702 F.2d the Melendez-Gonzalez, dispense with v. 727 F.2d States arrest or detention. Cf. legality And, of an (5th Cir.1984). addition to State, supra. Potts v. search, the proving voluntary consent by must also establish exist it has been said consent Government “And prove defendant, sufficiently intervening ence of factors which if an act of sufficiently attenuat purge that the consent was primary taint free will or arrest. Bretti v. (Wong illegal stop an arrest or ed from the unlawful detention (5th States, Wainwright, 439 F.2d Cir. supra, Sun v. United 371 U.S. at 1971), “significant inter- cert. 404 U.S. untainted because den. 257; Melendez-Gonzalez, vening 30 L.Ed.2d su- occurrences.” pra, at 414. from the It should be clear above Ballard, supra, In States finding that a authorities that a defend stop in Court found the violation of the voluntarily giv ant’s consent to search was Amendment but that this Fourth observed step en is but one determination necessarily did mean the evidence search, if propriety because even circuit, improperly admitted “... in this it voluntary, still consent were can, circumstances, val consent exploitation by have been obtained following illegal search an ar- idate a illegal question then an arrest. The be rest_” cited Court Bretti v. Wain comes whether the consent to search was Fike, supra, and United wright, States exploitation illegal of an by obtained Cir.1971). (5th However, F.2d 191 “by arrest or detention or means sufficient “proper Court held that the circumstances” distinguishable purged of ly pri to be present and were not Ballard’s consent Illinois, 422 mary taint.” Brown v. not valid. (1975),quoting Wong Sun Unit Bretti, supra, the In Court noted States, 471, 487-88, 83 ed 371 U.S. lightly in- is not consent to search L.Ed.2d the court should be alert when

ferred and product that consent is the is contended making this determination number illegal “Cf. Wong an arrest. Sun determining propriety of courts in of a States, have utilized factors (1963)” Nevertheless, forth the United set in Brown Court held a “waiver” constitutional Supreme Court to be considered deter- rights possible following illegal ar- mining voluntary confession whether a rest. exploitation of an obtained arrest. Fike, discussing supra, the Court in Bretti, stated: Odom, Ill.App.3d 1022, People (Appellate Ill.Dec. 404 N.E.2d 997 “This court assumed [in Bretti] 1980), Court, Illinois, deciding without 3rd

arrest was Dist.— subsequent question held that wrote: but reaching this consent untainted. Supreme “The Court has United States (1) the court considered conclusion voluntarily given held in the case of that in use of tactics of the coercive absence confessions, for fifth voluntariness (2) securing presence the consent and a threshold purposes amendment intervening ‘significant of occurrences’ requirement fourth amendment illegal alleged arrest and the between (1979) analysis. v. New York (Dunaway sought the evidence to be acquisition of 2248, 200, 442 U.S. 439 F.2d at 1045. These “occur- used. (1975), 422 824; Illinois, U.S. Brown v. warning de- rences” included a that the 416). Al- S.Ct. consent, right to fendant had a refuse consent, involving though in situations found used anything could be light in is not examined voluntariness him, right to and that he had a against amendment, jn it is the fifth as confes- attorney. Finding the with an consult cases, a distinction is beside the sion such untainted, voluntary and consent point. of concern is whether What is caus- assumed sub silentio that the court arrestee, by an inculpatory some action was broken and the evi- al connection by voluntary, was the ex- albeit obtained as a result of the search dence seized by a ploitation illegal police arrest of an ad- on consent was untainted and based officer, consequence violates which as a missible.” safeguard of constitutional require Bretti, appli- fourth so as Fike, the consent follow- amendment as in- voluntary exclusionary cation rule. The ing illegal of the arrest was found 1329-1330; 507-508, 103 part arres- at S.Ct. at Dun culpatory action 216-19, the form a consent to 99 S.Ct. at away, tee can take however, confes- just easily is, per search as as it can a se rule 1396. There no sion, purposes evidence, and for the of the fourth and a prohibiting use such dif- amendment there is no substantive may, certain defendant’s consent under see no ference between the two. We circumstances, of an remove the taint why progeny its reason Brown and illegal Dunaway, detention. See should not be extended to include cases 2258-59; 216-17, U.S. at 99 S.Ct. at involving voluntary as con- such this Illinois, Brown v. given to search after an ar- sent 2254, 2261, 45 L.Ed.2d 416 S.Ct. rest. Troutman, 590 see also United States (5th Cir.1979);

F.2d (5th Ballard, 573 F.2d States find these factors “We [identified Cir.1978); Davis, 456 United States v. cf applicable in equally to be Brown ] Cir.1972). (10th Volun- determining voluntary whether is a of fact to deter tariness sufficiently attentuated to search was totality of the circum mined from illegal arrest.” the taint of an stances, Schneckloth, 412 U.S. at Div. State v. In State v. 2-Washington 650 P.2d 533 P.2d Supreme Shoemaker, supra Rodriguez, 1982), (1975)] (Court Appeals- the Court stated: [Washington] in ruled that a [85 Wash.App. Wash.2d voluntary consent attempting to establish that ous, court’s S.Ct. at ^[1360] [United at 1364 finding unless it is [10th after an v.] we Cir. 1984]. Cooper, 733 F.2d accept clearly illegal stop, there the trial errone When search consent was notwith- however, a heavier has Government standing possible illegality of the the consent is carry than when burden original entry or arrest of the defendant. stop. Trout- given permissible after a Two other cases are illustrative of this 606; Ballard, man, 573 F.2d 590 F.2d at point. Wainwright, Bretti v. at 916. cert, (5th Cir.1971), F.2d 1042 denied 404 “Moreover, is obtained when consent arrest, the Government after an upheld the court a consensual in the causal con- must establish a break spite illegality of the claimed nection between arrest, warning stating thereby Dunaway, obtained. rights help defendant’s insure that 2259-60; 217-18, 442 U.S. at un- consent is free and 602-605, Brown, 95 S.Ct. at 422 U.S. at possible illegality tainted alleged An act 2261-2263. Troutman, arrest. United States v. of free ‘sufficiently an act will must be (5th Cir.1979),a 590 F.2d 604 consensual illegal purge primary taint’ to illegal search followed an detention 602, 95 S.Ct. at 2261 detention. Id. at freely the defendant consented af- where States, v. United (quoting Wong Sun being right of his to allow or ter advised 407, 419, 9 371 U.S. the search.” refuse to allow (1963).” (Emphasis sup- 441 L.Ed.2d wrote: In United held that legal arrest pressed tion. ^[811] [84 L.Ed.2d 705] at See Supreme Court as 813-14, 1458 Hayes States or seizure (10th fruit of 105 (1985); Royer, [v. v. obtained Cir.1985), S.Ct. Recalde, Florida], has must be ^[1643] illegal deten consistently after 761 470 U.S. 460 at Court an F.2d 1645 v. sup U.S. State il illegal date Florida voluntary consent search 1219, L.Ed.2d plied.) For Rambo, a 75 v. stop does which consent v. Angel, 356 Royer, 789 cases follows F.2d to 229 not automatically validate 460 U.S. holding that while search (1983); an So.2d automatically invali 1289 illegal neither (8th 491, 103 S.Ct. 986 United stop. See (La.1978); Cir.1986); States awill an a warnings (Miss. in their State, ably the Miranda v. So.2d discuss McCrary intervening 1986). usually as an circum- analysis stance. Recalde, supra, As made clear there Powell, Brown, concurring in re- Justice prohibiting the use of per is no se rule general “the factors as ferred result of a consent evidence obtained a (now Rehnquist Chief Justice factors.” arrest, stop following illegal or search an Justice), dissenting Dunaway, referred Wellins, v. detention. In United States as the “several factors.” the factors Cir.1981), (9th Court stat 654 F.2d 550 Supreme Court has never said the ed, [per improper; is approach an “Such se] assigned equal factors were exclusive legal See also it is an incorrect standard.” weight to of the factors. See v. each supra; Wainwright, Bretti v. Self State, supra, 709 S.W.2d at 668. The Rambo, a supra, and host v. States “question wrote that cited, Court Brown already v. Texas cases and Adkins product of is the a State, (Tex.Cr.App. whether confession Wong must be answer- 1986), per free will under Sun rejecting a se rule.3 single of each No ed on the facts case. Supreme Court identified Brown the dispositive_” is factor following to be considered factors given determining a confession whether sufficiently illegal an that “the Brown following arrest And it should be noted permit require use of the confes each of the attenuated test does not They (1) Mi trial. are whether in favor of the sion at set forth be resolved factors (2) given; tempo Wellins, warnings randa v. Government.” United confession; proximity (9th Cir.1981). ral of the arrest and 654 F.2d 550 (3) intervening circumstanc presence presence of one of “The absence or (4) es; flagrancy of purpose per se indication of these factors not also Duna the official misconduct. See will sufficient to break free York, way New v. sought to arrest and the evidence (1979); Taylor Ala v. suppressed.... bama, 687, 102 S.Ct. automatically bar “Nor will one factor L.Ed.2d 314 finding E.g. free will. of sufficient Cox, Cir.1972, 459 ap- States v.

In confession cases this Court has (taint suffi- See, e.g., arrest was plied the Brown factors. Green ciently dissipated although evidence (Tex.Cr.App.1980), 615 S.W.2d 700 arrest).” one hour obtained within cert. den. 454 U.S. Wilson, 569 F.2d Bell United States (5th Cir.1978). Self (Tex.Cr.App.1986). 709 S.W.2d 662 Supreme itself has While the recently, ap- And Brown has been more in a applied the Brown factors yet plied in a consent search case. Miller case, do not to search and while we (Tex.Cr.App.1987). absolutely controlling such factors consider following con- in consent to applying the Brown factors to a cases, such factors are arrest or detention sent to search some courts number determining question be guidelines in the differently above and refer factors than in fore us the instant case.4 only factors of but invari- to three Brown Miller, 649, 650, (Tex.Cr. supra, 736 S.W.2d at this S.W.2d 702 4. In 3. In Daniels v. 718 277, 885, Illinois, Court, supra, App.1986), applying U.S. 107 S.Ct. cert. den. 479 Brown v. a 252, case, that the it was held purported to search to list the consent search, stop fatally tainted the consent to the valid or not. Daniels was overruled sub by but instead of factors listed six factors Brown silentio four, only expressly pertaining to consent some (Tex.Cr.App. 736 S.W.2d 643 Miller although involved a confession. Brown 1987). interpreted as To extent it can be the appears misprint or misstatement. This a Texas, establishing per se rule in Daniels is a some the derivation of Under circumstances expressly overruled.

781 assumption pas mere An that the is undis In the instant case it stop arrest or warnings sage of time between an puted that Miranda or to search increas given appellant Captain Ramon confession consent to the Department subsequent confes El Paso the likelihood Ramirez of the Police es automobile, stop is being untainted shortly after sion or 4, explained LaFave, supra, had to the Vol. and after Ramirez sound. See purpose (1987). for the 11.4(b),p. illegal custody or reason An 393 § However, stop. Supreme Court oppressive as more as it continues becomes warnings by that bring made clear Miranda uninterrupted may about themselves, purge of an do not the taint under Ger Fourth Amendment violations clear, illegal stop made arrest or Brown 420 43 Pugh, stein impor warnings are an though, (1975), Supreme Miranda 54 where L.Ed.2d con determining tant in factor whether Fourth Amend recognized that the Court of an exploitation obtained judicial fession was a requires ment determination of arrest. prerequisite cause as a to extend probable Alabama, Taylor 2261. See also liberty following arrest. restraint on ed 690,102 2664, 2666, S.Ct. 73 L.Ed. Comment, L.Rev. 770- See Houston (1982).5 2d lack of It has been held that the significant intervening period of time does temporal prox- is The second factor not, itself, require imity stop the arrest or the confes- suppressed for want of sufficient attenua sion the consent to The exact search. Rodriguez, See States v. tion. stop time between and consent cert, Cir.1978), (5th F.2d search is not revealed the instant 835,101 108, 66 L.Ed.2d den. 449 U.S. appear It does record. the written Wellins, (1980); shortly af- consent to search was executed (9th Cir.1981); see also Com stop ter the giving of the Miranda Jackson, 459 Pa. monwealth v. warnings. (1975). A.2d 189 factor is apparently The second based on (Tex.Cr. Bell v. time, reasoning that the shorter the (a case), this Court App.1986) confession likely more the taint arrest or that the tem a confession case observed purged. has not been Brown generally not poral proximity factor “is significant was deemed that “less than two determining per strong factor se....” separated hours” the arrest and confession. to be “the And it has elsewhere been said In support of the proximity factor Su- involved.” Com least determinative factor preme cited five Court of (1976). ment, 13 Houston L.Rev. span The time decisions. in these cases Stevens, Dunaway concurring Justice ranged contemporaneous days from to five York, 442 U.S. New turned, and the decisions not on the time observed: span itself, rather on the occurrences temporal relationship between LaFave, during lapse. the time See Search Ed., 11.4, may be an am- Seizure, the arrest and confession p. 2nd Vol. . Note, no (1987); Emory biguous factor. If there are relevant L.J. 240-41 Comment, circumstances, intervening prolonged 13 Houston L.Rev. more detention well be a serious rehearing); strong, supra, (opinion are unclear. case we will at 32 factors the instant apply (Tex.Cr.App. the four factors of Brown. Meeks v. However, warning 1985). giving of such require 5. It should be noted that is no there good police practice attempting to before secure an officer of his ment that inform an accused search, supra, DeVoyle, and a show a consent to right to refuse to consent to a search in order warning evidentiary ing value in of such is of to be and valid. for the given. determining was whether a valid consent Bustamonte, DeVoyle supra; Schneckloth v. State, Meeks, supra. S.W.2d 77 Arm exploitation stated, companion of an arrest than in “I the car. Ramirez absolutely to wanted make sure he knew short one.” doing.” he what After conversa- the Rawlings Kentucky, appellant “Okay, sign tion Ramirez I’ll told (1980), it 65 L.Ed.2d 633 Ramirez in it.” then filled the blanks on a lapse appears that a shorter time will be printed including consent form the names tolerated when the circumstances of the appellant descrip- and the officers and a detention are less severe. tion of the vehicle and the word added A accept valid consent search is an property “narcotics” the to to authorized investigative able tool used law enforce appellant seized had the initial the be and prob ment officers. It is used both where amendment the form. re- to The form prob cause present able as well as when appellant flected had been informed of his lacking able cause is and no arrest or right to refuse to consent to and a search require search warrant could be obtained. Where appel- to search warrant and that obtained, permission being given consent is un properly lant’s to search was promises without and kind. may covered used when there existed no threats be Further, signed The then read and the other lawful for the basis search. explained consent form after was to him. given nothing and where consent is incrimi magistrate While there no the nating police suspect found both and scene, intervening we conclude may suspect may The cleared benefit. be place circumstances were sufficient to police and released if detained6 and the ledg- third factor on the State’s side of may denote their attention other sus to er. pects generally or matters. La- See Fave, Seizure, 8.1, pp. Search and Yol. purpose The fourth factor is the and (2d 1987). 147-148 ed. flagraney of the official misconduct. The in this gave particular Court Brown factor regard With to a consent search of an to Brown, emphasis. noting after that Mi- public highway on a such as automobile the instant warnings only factor randa case, most claimed consent considered, to be the Court wrote: frequently follow close on the heels of will temporal proximity of the arrest stop, illegal. sus- legal or To detain a confession, presence of interven- pect highway on the him to a remove and, ing particularly circumstances ... police to station order allow a purpose flagraney of the official lapse of time create more Fourth Wong misconduct are all relevant. See problems than Amendment it solves. See States, 371 U.S. at Sun United supra. v. Pugh, Gerstein added.) also (Emphasis 419.” See proximity temporal While the factor State, supra. Self placed appellant’s must side of be on the concerning facts the officers’ The ledger, give it is difficult to it alone tip from actions reveal that a a confidential weight much of all without consideration transaction, a marihuana informer about other factors. ques suspects and the automobile two next factor considered tion Officer Whorton was received. intervening presence under Brown is reported assigned the case and later explana circumstances. addition to the Captain Ramirez that a surveillance giving tion for the During tip. automobile had confirmed Ramirez, warnings, Captain Miranda after at Holi the surveillance of Oldsmobile requesting permission the rented car to day Inn Whorton walked around the narcotics, gave appellant an and re vehicle for see if he could smell marihuana partnér, reported his to his Officer opportunity privately to consult with turned considerably "may Consent and unstructured conditions.” See Schneckloth searches result in 218, 228, subject Bustamante, search” less inconvenience for the they "normally highway, or in occur office, person's informal home or and under cir- totality of the from a sought conclude unsuccessfully We Beasley. They then consent to the appellant’s that cumstances to maintain surveillance other officers of his rented automo- of the trunk secured a search warrant. they while sufficiently a voluntary and was bile was men left in the Olds Shortly thereafter two that it would atten- of his free will product in the rented car towards mobile and drove appellant, stop of the the taint of the uate Carlsbad, city limits and toward the stop illegal. assuming that the was highway. stop then The New Mexico stop ex purpose made. The of concluded The El Paso Court Ramirez appellant. Captain plained to the search was consent that the warrantless informing appel warnings gave impropriety, Miranda if regardless of the authorized consent to right to refuse to Lopez lant of his cited any, stop him the carefully with (Tex.App.-Houston search and reviewed [1st] S.W.2d Further, refused), offi Myers to search form. PDR (Tex.App.-Amarillo suggested that a search would cers never exactly in refused). is not Lopez to consent PDR place appellant if refused take investiga- found the point. There the court Lackey v. the search. See proceeded and then stop to be tive (Tex.Cr.App.1983). volun- that the consent was to determine further, showing that there was no Still totality of the circumstances. tary from the made or guns displayed or threats any taint There was no consideration than action taken other that any coercive stop. Myers an arrest from inherent in arrest or deten- which is deemed to point. The arrest was more tion.7 court, notwithstanding illegal, be conclude that action of the We cannot arrest, determined the illegality of the flagrant. The had no police was voluntary from consent to search was not “quality purposefulness,” and it was circumstances, and further totality admittedly un- “expedition an for evidence” to be showed the consent that the evidence something hope “in dertaken purge the sufficiently act of free will to Brown, up.” might turn citing arrest primary taint of Illinois, 95 S.Ct. at Amarillo supra. The Brown v. that no noted at the time Myers court in Further, may not the arrest or detention on authority cited or found Texas had been flagrantly improper where “the be precise issue. probable is indeed a close one.” cause , right Appeals reached The Court of Wright Cuyler, rel. United States ex judgment. a correct and entered result Cir.1977). (3rd And W. 563 F.2d Appeals is judgment of the Court The LaFave, Seizure, (2d 1987), ed. Search and affirmed. 11.4(b), p. it is stated: “... Yol. illegali- likely is less where the suppression TEAGUE, J., dissents. slightly probable short of

ty is an arrest investiga- stopping for cause after a lawful CLINTON, dissenting. Judge, which would tion or an arrest court of unpublished opinion the In an during a acquisition for its sufficient but judgment of convic- appeals affirmed grounds investigation on bare- stopping for four of marihuana over possession tion for arresting offi- ly insufficient or when found ounces, jury on a verdict based possibility contemplating cers were punishment at guilty, assessed questioning.” post-arrest and recommended years confinement seven (Tex.App.-El v. State probation. Juarez placed on the State’s The fourth factor 08-84-00277-CR, May delivered has Paso No. ledger. prosecution side 1, 1985). met its burden. States Customs until a United not commence form was manner in which the consent

7. The gave brought a "reac- dog to the scene and It is noted that has been described. executed sniffing of the car.” the trunk did tion when was obtained the search after such consent the the after But rather than remand 'cause The offense was discovered officers opts to the of the majority job undertake stop made a warrantless vehicle below, along way pauses court and the occupied companion. a up set as a strawman to bash Daniels Though appellant challenged stop the 780, n. “per rule.” See at 3. cause, se of he there- probable want because signed to search the Court after a consent per any That Daniels did not create such Appeals following proposi- applied of the State, in se rule is made clear Brick v. tion: supra, viz: consent, “With the the search autho interpret- not holding This should be “... warrant, regardless rized even without a mean consent obtained ed to that stop. any impropriety in the initial following arrest detention or of State, (Tex. Lopez S.W.2d [663 per will be deemed inadmissible se.... 1983), refused]; App.-Houston PDR [1st] Rather, simply we determined on State, (Tex.App. 825 * Myers v. S.W.2d that the defendant’s facts Daniels 1984, PDRR).” —Amarillo fatally permission to search ... was irrespective it was tainted of whether analyze digressing Without now to either Royer, voluntary. Compare Florida v. supra, point Lopez Myers, I would out 75 L.Ed.2d [460 just only recently this that Court found (1983)].” contrary, viz: Id., 680, n. 7. at issue because “We need not reach that not, consent, the result valid or that the majority The somehow divines fatally illegal stop tainted of an and thus in sub Court overruled Daniels silentio illegality stop. State, (Tex.Cr. Miller v. Glass, (CA5 F.2d 83 States v. However, [741 App.1987). there is no indication Ballard, 573 1984)]; States v. its in had that Court Daniels Miller (CA5 1978).” mind, opinion suggests nothing in wrongly that decided. Daniels (Tex.Cr.App.1986), State, 718 Daniels denied, Daniels, Texas v. t. Indeed, is majority opinion cer instant LaFave, patron excerpt saint long from law, At in which of search and seizure points at end he out: expressed for decision of the reason “But, El Paso is erroneous as a matter of true a consent is thus that while majority recognizes, El test be- law. As which fails the voluntariness just as prior Paso Court of concluded that of a cause convincingly consent search was authorized to be fruit of warrantless be said any impropriety poisonous regardless prior illegality, fruit saying At And in the El Paso invalidate also extends to tree doctrine [.] ” result,” id., right voluntary.” at Court “reached which are consents acknowledges majority also (2d Ed.1987) LaFave, Search and Seizure law, reason for decision conclusion of LaFave). 8.2(d), (emphasis by 189-190 § Court, the El Paso is incorrect. along supra, with other Miller authorities, attention the Court directed As has done similar circum- the Court 8.2(d) Like- in that treatise. the same occasions, § just countless stances on State, supra, quoted wise, we in Brick situation, recently precise Brick v. in this 8.2(d) decisions from discussed (Tex.Cr.App.1987), to conclude: the Court judgment its vacate remand we should it can be that before light We now hold reconsideration “... the cause for from a derived explicated in determined that evidence supra, Daniels v. fol- but consensual accompany- warrantless supra, n. 7 and Brick v. admissible, it arrest lowing an ing text 680-681. * opinion otherwise indicated. unless emphasis supplied throughout er of this the writ- All found, by must first clear and convinc- evidence, only

ing rendered, voluntarily also that

due consideration additional [by mili-

factors listed above LaFave]

tates favor of the conclusion that

taint otherwise inherent dissipated.

of the arrest has The bur-

den, course, is on the State.”

Id., 681. my primary disagreement

Thus with the reviewing

majority concerns the Court, essentially concep

role of this and is my

tual in nature. view this Court was

granted jurisdiction, power authority review, review, deci

to determine to and to appeals on matters of

sions of courts given for

law that constitute the reasons V, 6; 5 and Articles

decision. Article §§

4.03, 4.04, 2, 44.45(a), (b) (c), V.A.C.

C.P.; 90(a), 200(a), Tex.R.App.Pro, Rules 223(a);

(b) (c), 202(a), (d)(4) Degrate (Tex.

see decides,

Cr.App.1986). Once this

here, given by reason that the for decision appeals

a court of is erroneous as a matter law, Constitution, statutes and rules all

contemplate that the cause returned to appeals

the court of for it to exercise the

unique authority power and retained Y,

that court under Article 5 and 6 and §§ Mason, Huntsville, appel- for Curtis C. provisions cited above. lant. Accordingly, my dissent tois the refusal Austin, Huttash, Atty., State’s Robert majority El to remand the cause to the for the State. Appeals proceed- Paso Court of for further ings applicable inconsistent with the

rale of law we have laid down.

OPINION McCORMICK, Judge. of habeas application

This is an writ to this Court corpus which was submitted parte 11.07, of Article pursuant provisions Ex Carl Rubin to the WILLIAMS. V.A.C.C.P.

No. 70264. Applicant indicted for the offense of Texas, Court of Criminal V.T.C.A., Code, Sec- murder under Penal En Banc. (a)(1). The indictment included tion 19.02 Oct. allegation applicant committed the shooting “by offense ... aforementioned handgun, deadly weapon.” Pursu- with a applicant plea bargain agreement, ant to

Case Details

Case Name: Juarez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 27, 1988

Citation: 758 S.W.2d 772

Docket Number: 723-85

Court Abbreviation: Tex. Crim. App.