Lead Opinion
OPINION
delivered the opinion of the Court
Law enforcement officers, suspecting Appellee of drug trafficking, placed a global positioning system (GPS) tracking device on his car in an attempt to ascertain when and where he was obtaining his supply. They monitored his movement as he traveled at speeds exceeding the posted speed limit. They independently verified that he was speeding by pacing his car in their own unmarked vehicles. Later, another officer who was aware of the narcotics investigation, verified by radar that Appellee was speeding and pulled him over for that traffic offense. Without ever issuing Appellee a speeding citation, the officers obtained his consent to search his car and discovered a quantity of methamphetamine in the trunk. A short time later Appellee confessed that it was his.
The. State prosecuted Appellee for possessing methamphetamine with intent to deliver. Appellee moved to suppress both the methamphetamine and his confession. The .trial- court held that both were rendered inadmissible, pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure, because the search was accomplished through the installation and monitoring of the GPS tracker. It granted Appellee’s motion to suppress. Tex,Code CRIM. PROC. art. 38.23(a).
BACKGROUND
In late November of 2011, Billy Sides, an investigator with the'32rid Judicial District Attorney’s Office in Mitchell County, arranged for a confidential informant to make two controlled purchases of methamphetamine in Colorado City. Sides personally watched as Appellee delivered the contraband from a Dodge Charger. On the basis of that information and more, Sides sought a court order, pursuant to Article 18.21, Section 14, of the Texas Code of Criminal Procedure, authorizing, him to install and monitor a mobile tracking device on the Charger. Tex.Code Cmm. PRoc. art. ' 18.21,- § 14. The judge of the 32nd Judicial District signed such an order on December 2, 2011, and a GPS tracking device was installed .-.on December 6th.
: Sides had already been able to- tell from the GPS tracking device that Appellee was consistently traveling at three to four miles per hour over the posted speed limit.
Appellee was indicted for possession of methamphetamine with intent to deliver in an amount weighing four grams or more but less than 200 grams, a first degree felony. Tex. Health & Safety Code §§ 481.102(7), 481.112(d). He filed a motion to suppress and the trial court held a hearing. After the hearing, the parties agreed to, and the trial court entered an order endorsing, the following written findings of fact:
1. An affidavit for the installation and use of a mobile tracking device pursuant to Article 18.21 § 14, Texas Code of Criminal Procedure, was presented to the 32nd District Court Judge on December 2,2011.
2. The order authorizing the installation of á mobile tracking device was signed on December 2, 2011, and on December 6, 2011, an electronic tracking device was installed on the light blue 2,006 Dodge Charger, bearing license plate BW1V825, being used- by the Defendant, John Berry Jackson, Jr[.] in Mitchell County, Texas.
3. On December 12, 2011, law enforcement used the tracking' device to track the Defendant’s vehicle from Mitchell County, Texas, to Mesquite, Texas, and back again.
4. The Defendant’s movements in the car were closely monitored by law enforcement, and very soon after crossing the line back'into Mitchell County, the Defendant was stopped for speeding.
5. The Defendant gave verbal consent to law enforcement to search his vehicle. .
6. The Defendant’s car was searched, and when methamphetamines were found, the Defendant was arrested.
The agreed order also included a finding of fact (although it was designated a “conclusion of law”) that “[a] warrant was not obtained by law enforcement prior to installation and use of the mobile tracking device on [Appellee’s] vehicle.”
The trial court granted Appellee’s motion to suppress, concluding that the war-rantless search here was unconstitutional. The trial court relied on United States v. Jones, — U.S. —, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), in which the United States Supreme Court declared that the physical intrusion necessary to install such a tracking device, taken together with the subsequent monitoring of the vehicle using that device, constituted a “search” for Fourth Amendment purposes. The trial
The court of appeals affirmed. Jackson, 435 S.W.3d at 831. It agreed with the trial court that the State’s use of the GPS tracking device constituted an illegal search, concluding that it violated the Fourth Amendment for two reasons: 1) it occurred in the absence of a warrant, and 2) it was based upon a finding of reasonable suspicion rather than probable cause-. Id. at 826.
The SPA now challenges the - court of appeals’s heavy emphasis on the temporal proximity factor. The SPA .argues that the court of appeals erred to conclude that the officers’" verification of Appellee’s speeding infraction did not constitute an intervening, circumstance.
ANALYSIS
In Jones, the Supreme Court held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of the device to monitor the vehicle’s movements, constituted a -‘search.’ ” 132 S.Ct. at 949. The Court emphasized that neither the intrusion involved in the initial installation of the GPS tracking device nor the subsequent monitoring of the vehicle’s movements could alone constitute a Fourth Amendment search; it was the combination of the trespass “conjoined with ,.. what was present here: an attempt to find something or to obtain information.” Id. at 951, n.5.
Consistent with Jones, it appears here that the installation of the GPS tracking device and its subsequent employment to monitor Appellee’s whereabouts constituted a search for Fourth Amendment purposes. The SPA does not presently contest that this search was illegal. Without the tracking device, the officers in this case would not have been alerted to the fact that Appellee had left Mitchell County or that he was speeding. They would also not have known to put themselves in a position to verify his unlawful speeding as a justification for pulling him over. In the strictest sense, then, Appellee’s detention and his attendant consent to search, the discovery of the contraband, and Appel-lee’s admission of ownership, were all but/ for products of the primary illegality, which was the warrantless installation of, and subsequent monitoring of Appellee with, the GPS tracking device.
the more -apt question is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
Id. (internal citations and quotation marks omitted). In this case, the question boils down to whether the verification by police of Appellee’s speeding through “pacing” and radar constituted a “means” of obtaining the contraband that was “sufficiently distinguishable” .from' the illegal installation and monitoring with the GPS device “to be purged of the primary taint.” Id.
In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the.Supreme Court addressed the factors involved in determining whether a confession should have been suppressed as the product of an illegal arrest. The Court rejected the- notion that preliminary Fifth Amendment warnings and the apparently voluntary nature of the confession could, by themselves, serve to attenuate the taint of the primary illegality. Id.- at 601-03, 95 S.Ct. 2254. The Court declared that“[t]he temporal proximity of the arrest and confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct” all must be considered. Id. at 603-04, 95 S.Ct. 2254. This Court has long applied these three Brown v. Illinois factors for determining attenuation of taint, both for purpose of the Fourth Amendment exclusionary rule (as we must) and also for the purpose of our own statutory exclusionary rule, provided for in Article 38.23(a) of the Code of Criminal Procedure. See Johnson, 871 S.W.2d at 750-51, and cases cited therein; Tex.Code Crim. Proc. art. 38.23(a).
Mazuca did not involve a confession; we therefore had no cause to inquire whether Miranda warnings were administered or whether Mazuca had voluntarily spoken to the police.
When police find and seize physical evidence shortly after an illegal stop, in'the absence of the discovery of an outstanding arrest warrant in between,' that physical’ evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendmént rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.
Mat 306-07.
Of course, the primary illegality in the instant case was not, as in Mazuca, Appel-lee’s initial roadside detention. Here, the primary illegality was the on-going search via the GPS tracking device that enabled the police to make the observations they relied upon to justify Appellee’s' initial roadside detention. Did the officers’ independent verification of Appellee’s spéeding constitute an intervening circumstance? If so, this would trigger Mazuca’s emphasis on the third Brown factor, the purposefulness and flagrancy of official misconduct, which weighs heavily in favor of attenuation. Or was the officers’ verification of Appellee’s speeding (even as the search was on-going) itself the tainted product of the primary illegality? In that event, the court of appeals properly focused on the first Brown factor, temporal proximity. Emphasis on the temporal proximity factor favors the conclusion that Appellee’s roadside consent to search and his subsequent station-house admission were indeed “obtained” by exploitation of the illegal GPS tracking device.
We agree with the SPA that the independent verification of Appellee’s speeding in this case was just as much of
Moreover, the SPA is correct that, given such an intervening circumstance, Mazuca dictates that a reviewing court should emphasize the third Brourn factor, which asks whether the police purposefully and flagrantly disregarded Appellee’s Fourth Amendment rights. 375 S.W.3d at 306-07. The court of appeals conceded that there was no flagrant police misconduct. Jackson, 435 S.W.3d at 830. We agree. At the time Investigator Sides obtained the court order .to install the GPS tracking device on Appellee’s car, the Supreme Court had not yet declared that the installation and monitoring of such a device constitutes a search for Fourth Amendment purposes. A Texas statute expressly permitted peace officers to install and .use' such devices upon sworn application to a district judge providing reasonable suspicion of criminal activity for which the device will likely produce material information. Tex.Code CRIM. PROC. art. 18.21, § 14(a) & (c). Sides executed a sworn application pursuant to this statutory provision that met all of thé qualifications for the issuance of a court order, and the judge of the 32nd Judicial District Court issued it. Nothing in the record suggests that Sides had any inkling, before Jones, that adhering to the statutory scheme would not suffice to render installation and use of the GPS tracking device in all things legal.. He had no particular reason to believe or suspect that the statutory criteria of “reasonable suspicion” would prove to be (because a “search” for Fourth Amendment purposes ordinarily requires more) constitutionally deficient. Thus, the primary illegality in this case was not the product of a flagrant
It is undeniable that Sides’s use of the GPS tracking device was “purposeful,” in the sense that he expressly hoped to obtain evidence in his narcotics investigation against Appellee. But he did not knowingly violate Appellee’s constitutional rights in that pursuit. He also perpetrated no further constitutional violation in conducting his investigation.
CONCLUSION
Both the second and third Brown factors favor the conclusion that the taint of the unconstitutional' GPS tracking device search had dissipated by the time Appellee consented to the search of his vehicle and confessed that the methamphetamine discovered therein were his. We reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this opinion. Mazuca, 375 S.W.3d at 310.
.Such orders were authorized by statute upon, a showing of "reasonable suspicion that ... criminal activity' has been; is, or will' be committed[.]” Tex.Code Crim. Proc. art. 18.21, § 14(c)(5)(A). Sides’s affidavit seeking the court order for installation and use of the mobile tracking device presented facts from which he averred that reasonable suspicion existed, but it did not purport to provide probable cause. The court order accordingly found no more than “reasonable suspicion to believe that the installation and utilization of a mobile tracking device ... will produce . evidence of a felony[.]” .
. As the court of appeals noted, “[a]n officer who was unaware of the [narcotics] investigation -stopped [Appellee] for speeding hear Six Flags in Arlington.” Jackson, 435 S.W.3d at 823. That officer cited Appellee but did not arrest him.
. Clark did not testify at the hearing on the motion to suppress, and Sides did not testify that Clark was-involved in the narcotics investigation. But in Sides’s application for installation of the mobile tracking device, which was sworn to and admitted into evidence at the suppression hearing, he indicated. that Clark was involved in the controlled purchases of methamphetamine from Appellee.
. Sides testified that they did not linger long '.'in the field”:
It wasn’t very long. Long enough to just to find the dope. And then we brought the vehicle in. We had multiple officers there. I believe we brought his vehicle into the police department and took him into the interrogation room. I mean it was fast. We didn’t dwell out on the highway at all. Thus, it appears that both Appellee's consent to search the Charger and his confession that the methamphetamine was his came quite soon after the roadside' stop.
. Although we have highlighted the salient facts, we nevertheless recommend the court of appeals’s exhaustive and well rendered recitation. Jackson, 435 S.W.3d at 822-24.
. The prosecutor argued:
The intervening circumstances where the testimony that you addressed yourself, Your Honor, you stated that there was a radar indication that he was speeding. In addition, Mr. Jackson, Jr., ¾ stated later in his interrogation that he was speeding, and so he doesn't deny that that occurred; The entire time they were following him, there’s what’s called pacing, and the vehicle was pacing his speeds. So, there were plenty of indications that he was violating the law, which is all that’s required for a traffic stop.
. In adopting the parties’ agreed conclusions of law, the trial court reasoned that, "[a]side from the information gathered from the mobile tracking device, law enforcement would not have known where the Defendant was, would not have had reason to intercept the Defendant’s vehicle, and therefore did not have probable cause to search the Defendant's vehicle." (Emphasis added.) It might have been more germane to conclude that, without the information provided by the GPS device, law enforcement would not have been in a position independently to observe and stop Appel-lee for speeding, thus providing a legitimate opportunity to seek his consent to search the Charger (since, with consent, the officers did not need probable cause), which in turn led to his arrest and confession. This was essentially what the court of appeals later held in affirming the trial court’s ruling. See Jackson, 435 S.W.3d at 829 (“Deputy Clark’s stop of Jackson for speeding was closely connected to the officers' use of the GPS device. The planned stop stemmed from data gathered by the use of the GPS device; it did not result from a wholly separate observation by Deputy Clark.”) (internal quotation marks omitted).
. In its petition for discretionary review, the SPA does not now contest that the search involving the GPS tracking device was conducted without a warrant and in the absence of a magistrate’s determination. of probable cause.
. Not every Fourth Amendment violation results in the suppression of evidence. Mazuca, 375 S.W.3d at 300. Evidence is not subject to the. exclusionary rule simply because the police would not have discovered it "but for” the Fourth Amendment violation. Id. The question is whether the evidence' was obtained "by exploitation of” the Fourth Amendment violation “or instead by means -sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S:Ct. 407, 9 L.Ed.2d 441 (1963)). Factors to be considered in determining whether evidence must be suppressed include "[t]he temporal proximity of the arrest and [obtaining of the evidence], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct[.]” Id. at 302 (quoting Brown.v. Illinois, 422 U.S. 590, 603-04,. 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).
. 422 U.S. at 603-04, '95 S.Ct. 2254.
. The SPA, does not expressly argue that the court of- appeals also erred to hold that Appel-lee’s consent was- not an. intervening circumstance. We therefore limit our review to whether the court of appeals erred to hold that the verification of Appellee’s speeding did not constitute a sufficient intervening circumstance to attenuate taint.
. 375 S.W.3d at 302; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. It almost goes without saying that when police officers unlawfully detain an individual and only then discover an outstanding arrest warrant, they may — indeed, they should — arrest him pursuant to that warrant. Nothing about the fact of the illegal detention that led to the discovery of the outstanding warrant should adversely impact the State’s ability to prosecute the individual for the prior.offense that gave rise to that warrant. But, any evidence that comes to light only as a result of that illegal detention, and that is relevant to an offense other than • the prior offense for which the arrest warrant issued, will unquestionably be subject to suppression under the exclusionary rule of the Fourth Amendment and Article 38.23 of the Code of Criminal Procedure — unless, of course, the taint of the illegal detention is attenuated as judged by application of the Brown v. Illinois factors. See, e.g., State v. Moralez, 297 Kan. 397, 300 P.3d 1090, 1100 (2013) (‘‘[A]n arrest made pursuant to an outstanding warrant is not invalidated by a prior unlawful detention.”); State v. Bailey, 356 Or. 486, 338 P.3d 702, 712 (2014) (“Where a person's identity is made known to the police during an unlawful detention, and he or she is determined to be the subject of a valid arrest warrant, the police may lawfully arrest the person and conduct a lawfiil search incident to the arrest. However, the Brown framework nevertheless applies to the separate determination whether the causal connection between the unlawful detention and the discovery of evidence in the search incident to arrest has been sufficiently attenuated so as to dissipate the taint of the illegality.”). Whether evidence recovered following both the initial illegal detention and the discovery of the arrest warrant may also be subject to suppression in the prosecution of the offense-for which the arrest warrant issued is an open question that we need not address today.
. Indeed, in Brown itself, the Supreme Court regarded the administration of Miranda warnings as a kind of relevant (albeit never, by itself, dispositive) intervening circumstance even though the illegal seizure that led up to Brown’s confession (a warrantless arrest made without probable cause) was still underway at that time. Brown, 422 U.S. at 591-96, 95 S.Ct. 2254. ‘‘[T]he Miranda warnings, alone and per se, cannot always make
. Even if Sides instigated Appellee’s traffic stop on a pretext, hoping to obtain consent to search the car, such a pretext stop is not itself unconstitutional so long as there is an objective basis in the record to support it. Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001); Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Crittenden v. State, 899 S.W.2d 668 (Tex.Crim.App. 1995).
. See, e,g„ Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 485-486, 8.3 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 .U.S. 643, 656, 81 S.Ct. 1684, 6. L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 216-17, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); see also State v, Mazuca, 375 S.W.3d at 300.
Concurrence Opinion
concurred in the result.
CONCURRING OPINION
Hervey, J., filed a concurring opinion in which Keasler, Richardson, and Newell, JJ., joined.
I join the opinion of the Court but write to further explain how the suppression of the. evidence in this case will not serve the underlying policy reason for the exclusionary rule and how the focus of the Brown test shifts depending on the facts of each case.
The purpose of the exclusionary rule is to deter police misconduct, which is well documented by this Court and the United States Supreme Court.
When determining whether evidence should be suppressed, the United States Supreme Court has stated that not all evidence found is “fruit of the poisonous tree.” Rather, a court must determine if the evidence “has been come at by exploitation of [police misconduct] or instead by means sufficiently distinguishable to be purged, of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (internal quotes omitted). There are two ways by which tainf of prior illegal conduct can be attenuated. See Hudson, 547 U.S. at 593, 126 S.Ct. 2159.. First,.if the causal connection between the illegal conduct and the acquisition of the evidence is too remote. Id. Second, -even if there is a causal connection, the evidence should-not be excluded if the “interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Id. To determine the nature of the casual connection, this Court considers three factors: (1) temporal proximity of the illegal conduct to the obtainment of the evidence, (2) the presence of intervening circumstances, and (3) the purposefulness or flagrancy of the official misconduct. See Brown, 422 U.S. at 603-04, 95 S.Ct. 2254. In this case,,the second Brown factor is the most relevant.
An example of an intervening circumstance that broke the chain of causation between the illegal conduct and acquisition of the evidence can be.found in our decision of Mazuca. In that case, police pulled over the appellant on the. belief that white light was emanating from his tail lights, which was later shown not to be true. Thus, the police had no reasonable suspicion to detain him. Mazuca, 375 S.W.3d at 296-97. However, during the unlawful stop, the officers discovered that the appellant had at least two warrants out for his' arrest. After taking him into custody, one of the officers asked the appellant if he had anything illegal on his person, to which h¿ responded that he did. During a search of the appellant, the officer found ecstasy. Id. at 297. The appellant argued that the discovery of the narcotics should have been suppressed because the traffic stop was illegal. However, we held that the exclusionary, rule did not apply because the discovery of an arrest warrant after illegally stopping the appellant was an intervening circumstance that rendered the causal connection between the illegal stop and .the seizure of evidence “too remote” to merit suppression. Id. at 308-10. We also found it relevant that the police did not purposely or flagrantly violate the appellant’s rights. Id. at 310. Proximity is thé most important factor when there is not an intervening circumstance, but. when, as in this case, One is present, the most important factor is whéther the police’s illegal conduct was purposeful -or flagrant.'
Applying these principles to Appellant’s case, the majority correctly identifies the illegal conduct — using the GÍ& device to .track Appellant — and that collecting the GPS data tainted the traffic stop and subsequent discovery of the drugs. But that does not resolve the'issue before us because we must also decide whether the illegal conduct that tainted the traffic stop is so remote from the discovery of the
I agree with the majority that Appellant’s act of speeding was an intervening circumstance that rendered the preceding illegal conduct of the police “too remote” to warrant suppressing the discovered drug evidence.
. Here, although it was illegal for the police to track Appellant’s whereabouts through a GPS device without a warrant, there is reason to believe that the police did not engage in ■ that illegal conduct flagrantly. See Maj. Op. at 733-34. First, the United States Supreme Court decision requiring a warrant to obtain GPS location information was not handed down until after the investigation in this case was completed. United States v. Jones, -— U.S. —, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Second, as the majority notes, the record reveals no suggestion that the officer believed his actions were illegal. See Maj. Op. at 733-34
Dissenting Opinion
DISSENTING OPINION
filed a dissenting opinion.
The majority concludes that the taint of the illegal GPS device used to track Appel-lee’s movements had dissipated by the time Appellee consented to a search of his vehicle. Because the search of Appellee’s vehicle was a direct result of the unconsti- , * tutional tracking, I cannot agree with the majority’s decision.
Even though the majority is hesitant to label it as such, this stop was obviously made on a pretense with the officers hoping to be able to search the car. However, even though there was consent to search, there was never an untainted reason to request such consent in the first place. If you were to consider this as. a random stop, there is nothing in the record that indicates that a search of the car would have been justified. There was nothing suggesting that illegal items would be found in the car, nor did the officers discover any outstanding warrants. Therefore, there existed no reason, independent of the illegal GPS tracking, for the officers to ask for consent to search the car.
What has actually taken place here would be as if the officers had entered a moped in the Tour de France, and then the majority justified the officers’ triumph by saying that their cyclist had not taken performance-enhancing drugs.
. For all you non-cycling enthusiasts, a moped is a bicycle with a gasoline engine and is comparable to what we have here-an automobile with a tracking device.