State of Texas v. Mazuca, Alvaro

of Texas The STATE MAZUCA, Appellee.

Alvaro

No. PD-1035-11. of Texas. Appeals

Court of Criminal

May Sept.

Rehearing Denied Burnett, County

Janet El Paso Public Paso, Office, Appellant. Defender’s El D.A., trial, Darnold, Paso, appellee filed a offense.2 Prior Tom Asst. El A. Austin, McMinn, stemming Attorney, suppress motion to State’s Lisa C. in this case. At from his detention for State. 19, 2009, hearing March the pre-trial arresting was the offi- State’s witness OPINION cer, Christopher Officer El Paso Police J., PRICE, opinion of the delivered the Grijalva. KEASLER, HERVEY, in which JJ., ALCALA, joined. Grijalva testified on December COCHRAN patrol was the Sun- assigned he felony prosecution possession the of El land Park Mall area on west side State ecstasy, appealed from Paso, along partner, Officer Mike appellee’s motion grant trial court’s Grijalva part Chavez. and Chavez were appellee that the con- suppress Command Regional Westside Center as a result of an tended was obtained respond a that does patrol, unit not TAC stop. The El Paso Court of traffic patrol performs calls but instead routine ruling the trial court’s Appeals affirmed specific assignments. particular On this unpublished opinion, holding day, patrol the TAC was with look- tasked appellee’s initial detention At approximately for traffic violators. emanating that the taint from a p.m., conducting the officers were 10:00 by illegality was attenuated Grijalva separate traffic when noticed that, immediately after the initial yellow Mustang pulled a into the outstanding found to have an appellee was parking Grijalva lot of the mall with what give to a might warrant rise perceived taillights. to be The defective grant- valid search incident to arrest.1 We Grijalva appeared to to emit taillights petition discretionary ed State’s by they light, white whereas statute should holding review examine now they completed be red.3 Once their traffic reverse. stop, Grijalva again ob- and Chavez once yellow Mustang, parked served the now AND PROCEDURAL FACTS At parking mall lot. around 10:20 POSTURE p.m., they Mustang begin observed the Suppress Motion alerting again. move After other mem- patrol, they for the the TAC it for appellee stopped indicted offense bers of possession taillight They with intent to deliver more infraction. perceived grams stop Mustang— than four but less than 400 of me- no other reason to thylenedioxy they suspect occupants methamphetamine, popularly did crime, ecstasy, degree felony nor were aware that the known as first other Mazuca, 08-09-00102-CR, weight, including aggregate No. or di- 1. State v. adulterants Paso, lutants, (Tex.App.-El Apr. WL grams more but four less than 2011) (not designated publication). 481.103(a) grams.”); ("Penalty Group § id. 3, 4-methylendioxy [inter ] consists of alia 481.113(a) § 2. See Safety Health & Code Tex. methamphetamine”). (d) ("[A] person & commits an if the offense knowingly ... person possesses with intent to 547.322(d) ("A § tail- See Tex. Transp. Code deliver listed in Penal- a controlled substance lamp plainly at a shall emit a red visible ty Group felony [which offense] 1,000 rear of the feet distance degree first if the amount of the controlled vehicle.”). is, applies which offense substance to any Grijalva occupants might subject retrieved the bag found that outstanding warrants. it contained baggies additional of marijua- na. iden-

While Chavez checked the driver’s responsibil- tification and of financial proof The owner and driver of the Mustang, Grijalva ity, approached passenger Medina, Isaac testified for defense at Mustang, where appellee side suppress the motion to hearing. Five sat, appellee and asked the for identifica- years before the traffic had modi- pro- tion. Without speaking, appellee taillights fied his “some include clear license, and both duced driver’s Chavez lights,” rear but they lights retained “red Grijalva and returned to their car to squad in the middle[.]” Medina had never before outstanding for When check warrants. ticket, gotten a and always the car had that computer appellee their showed the passed annual inspection. the state He at war- pair outstanding had least denied that his ever Mustang any “had rants, they contacted the office warrants any emitting white white taillights.” or— and confirmed the warrants were ac- Photographs of the rear the Mustang Grijalva tive.4 to the passenger returned were showing introduced into evidence the appel- Mustang side asked the condition of the taillights as of the time of step appellee lee to out. the com- When the stop. traffic State then The recalled him plied, Grijalva asked whether he was Grijalva to the stand him and showed the warrants, outstanding aware that he had photographs, which were in daylight. taken to which the “kind of appellee looked Grijalva taillights maintained that the [Grijalva] yes, said I have and then know I looked much different when illuminated at warrants.” then the Grijalva “escorted” whether, night. night Asked on the to car and him appellee squad “asked emminating “there was red [sic] put his hands the vehicle.” Intend- on ... taillights?”, replied: from those he pat safety appellee down for mostly “There was white. From what I if he purposes, Grijalva first “asked him distinctly saw it was white. I mostly don’t him, anything illegal any weapons had got recall if we close and saw that there anything point else. At which he stated But any red. the white dominated the yes, Grijalva he did.” him When asked red color.” had, appellee what answered there was in a black in his ecstasy pouch urged appellee Counsel

right pants Grijalva front pocket. subse- Grijalva’s testimony. court to discount quently “placed appellee] into custo- [the Your Hon- [DEFENSE COUNSEL]: down, dy,” patted him discovered or, I believe that the Court has the baggie well ecstasy seized as a small photographs of the in front of taillights marijuana, put appellee and then you taillights him. And as see squad appel- the back seat of car. The casing. a clear The bulbs themselves Mustang belonged lee volunteered that the cousin, You can You have are red. see that. and that there was “a black you. them in front of would zippered bag passenger under the front belong seat” that did not either red or at all. I his cousin. not lit And Grijalva tang, (apparently appellee's could not remember whether Isaac Medina appellee outstanding cousin), had three war- two or outstanding had "more than five” rants, and the warrants themselves were traffic warrants. offered into The driver Mus- evidence. finds that testimony the con- meanor of the witnesses think officer’s testi- Grijalva] [sic: and not believable.5 Officer Chavez’s trary is not credible mony had a belief that he reasonable part, prosecutor her reminded For 547.322 Transportation Code had been photographs trial court that the violated not be credible. been Grijalva had and that daylight taken having the tes- 3. The trial court heard al- argued, night. She observed them having evaluated the de- timony and ille- ternatively, if that even finds that meanor of witnesses out “there case law there states gal, have a Officer [sic] Chavez did if a warrant out there is yellow belief that reasonable defendant, illegal stop doesn’t taint the Mustang lights had white arrest.”6 The trial court warrants rear. those prosecutor produce asked the matter under advise- 4. The trial court evaluated cases took heard Medina ment. Isaac credible finds his to be Findings and Conclusions Trial Court’s and admitted photographs 2009, trial On March court fairly and as Defense exhibits 1-6 granting appellee’s signed order depict vehicle and accurately find- but did not enter suppress motion when as lights appeared [its] of law. That ings of fact and conclusions stopped on Decem- vehicle day, request same the State filed ber of of law.7 findings fact and conclusions 9, 2009, en- April duly the trial court On yel- 7. The finds that trial court [the] findings and conclusions.8

tered written Mustang’s low emitted [taillights] conclusions, Those in relevant findings red December light on read: part, The having OF trial court evaluated FINDINGS FACT: credibility of the witnesses 11, 2008, approxi- 1. On December finds rea- that there was no other p.m. Grijalva mately 10:20 Officer son the detained [sic] El Chavez of the Paso Officer lights than white vehicle other yellow detained a Department Police the rear. parking vehicle lot of Mustang Things the Linens n on the Westside Paso,

of El Texas. ap- 14. The court that [the trial finds was not read his Miranda pellee] 2. The heard the tes- having trial court the de- timony warnings. evaluated Cullen, (Tex. only State 696 5. The before us contains black 7. See v. S.W.3d record (on request losing party, Crim.App.2006) reproductions photographs. and white required express court find- trial enter law). ings and conclusions of State, prosecutor cited v. 6. The Johnson State, 1973), (Tex.Crim.App. v. S.W.2d Reed signed, findings were 8. Those and conclusions (Tex.App.-Dallas no S.W.2d 940 however, judge judge by a different than the (Tex. pet.), and Lewis presided hearing over the on the who pet.). App.-Dallas no suppress on March rec- motion 19th—the why. ord reveal does not ques- 15. The trial court finds that the 3.The arrest warrants the Defen- did not purge dant the taint of the appellee] and the tioning [the illegal stops due to the contraband discovery of were action, temporal the close temporal proximity in close proximity and the fact that no Mi- but were in fact almost simulta- warnings randa read. were neous. conclusions, From findings these State appealed.9 ap- 17. The trial court finds that [the Appeal On not volunteer infor- pellee] did of appeals court deferred to the mation but rather answered the [of- credibility court’s determination with when questions provided ficer’s] respect Grijalva’s testimony regarding identifying information. of the stop accordingly basis and held ap- 18. The trial finds that [the arresting justifica- officers “lacked pellee] not free to leave tion the stop inception to make at its be- yellow Mustang the time that the white, cause car’s taillights were passenger that he was a in was Proceeding the officer testified.”10 detained. question whether the from that illegal ap- 19. The trial court finds that [the stop may by Grijal- been attenuated placed pellee] was under arrest va’s immediate outstand- outstanding warrants after he warrants, of appeals the court questioned by detained and Officer acknowledged case law this being after a passen- Chavez [sic] appeals holding and other courts of “that yellow ger in the [M]ustang warrant, discovery of a valid even by was detained Officer Chavez detention, involving an illegal situation Grijalva. Officer connection pri- breaks the between the

mary and the subsequently taint discover- Nevertheless, to ed evidence.”11 hold that CONCLUSIONS OF LAW[:J discovery appellee’s of the arrest war- 1. Mustang The driver of the not did dissipated the rants taint of unlawful violate Section 547.322 of the Trans- case, facts of the court of on the this portation on Code December observed, only to “en- appeals would serve 2008. upon seizure of inad- courage suspects 2. The Police Officers did not investigation equate grounds while an is

probable suspi- cause or reasonable for the purpose establishing conducted cion a traffic perform discovering to cause or probable the exis- date. tence For this rea- of search warrants.”12 44.01(a)(5). illegal, deciding 9. Tex.Code Crim Proc. art. that the initial detention was primary such but held that taint from Mazuca, supra, at *3. illegality dissipated by immediate dis- covery Id. at arrest warrant. 420-21. Id. Fletcher[,]" the "This case differs from Reed, opined, appeals here "in the trial court 3). supra, (quoting Id. 948 n. rejected only stopping the basis for Mus- appeals court of also contrasted this case i.e., tang, allegedly taillights.” its defective (Tex.App.- Fletcher v. 90 S.W.3d 419 us, however, Fletcher, Mazuca, supra, pet.). at *3. It Amarillo no seems may appeals we find Amarillo court of assumed without whatever authoritativeness impulse.”17 Accordingly, every son, rejected “first appeals the court Grijalva’s argument necessarily violation State’s Fourth Amendment outstanding traffic war- appellee’s of the suppression just in the of evidence results ille- primary the taint of the purged rants because, violation, but evi- granted We gality stop.13 exposed. dence would never have been As discretionary review petition State’s Wong Supreme Court observed Sun holding its contention that address States: United opinion in John- conflicts with this Court’s all We need hold that evidence is State,14 and, with pointedly, more son v. poisonous simply tree” “fruit of be- other courts of holdings several would cause it not have come but in Texas.15 police. actions of the Rather, apt question the more OF THE ATTENUATION “whether, granting establishment of the TAINT DOCTRINE illegality, the evidence to which primary Wong Sun and Johnson objection has been instant is made come by exploitation illegality of that The Fourth Amendment exclu sufficiently instead means distin- a function sionary exclusively rule serves guishable purged primary deterrence, undue discourage taint.”18 per upon privacy encroachment citizenry.16 Because integrity sonal expressly We invoked this attenuation of social costs involved in of the substantial Johnson,19 principle function, howev exercising deterrent Johnson was without a warrant er, exclusionary arrested rule application resort,” and, contended, probable as a not a without operate should “last have, anly holding respect effectively way -by its available Fletcher to — it.”) (in- removing disregard diluted attenuation of would not be the incentive to assumed, by omitted). that it with- quotation measure citation ternal marks and deciding, illegality of the initial deten- out tion. 586, 591, Michigan, v. U.S. 17. Hudson 547 2159, (2006). S.Ct. 56 126 165 L.Ed.2d Mazuca, supra. 13. 487-88, 471, 407, S.Ct. 18. 371 U.S. 83 9 1973). (Tex.Crim.App. 72 14. 496 S.W.2d (1963) Maguire, 441 Evi (quoting L.Ed.2d Guilt, (1959)). Although dence of 221 (b) (c). 66.3(a), year, & Last Tex.R.App. P. exclusionary appellee also invoked reme Elias, that, "[wjhile v. we in State observed 38.23, dy of Article Proc. art. Crim Tex.Code yet directly weigh in on Court has 38.23(a), expressly we have held the at issue, jurisdic- that a we note number of other applies also tenuation taint doctrine intervening have held that an arrest tions determining whether evidence has been un circumstances, may, warrant under certain lawfully purposes of ‘'obtained” for this state taint, depending upon serve to attenuate an State, provision. 871 law Johnson v. S.W.2d application of factors of attenuation 1994). (Tex.Crim.App. 750 Bell v. Cf. Illinois[, 590, 603-604, 422 v. U.S. 95 Brown (Tex.Crim.App. 787 (1975)].” S.Ct. L.Ed.2d 1986) (invoking the attenuation taint doc- (Tex.Crim.App.2011). S.W.3d applying exclusionary trine Article 38.23's respect of Texas rule to violations statu- Ohio, 643, 656, Mapp v. 16. See 367 U.S. tory provisions). (1961) ("[T]he 6 L.Ed.2d 1081 S.Ct. exclusionary purpose of the rule is to deter— respect guar- S.W.2d at compel for the constitutional 19. 496 arresting officer trans- and the cause.20 When attenuation of taint doctrine in Illinois,26 station, to the ported Johnson he Brown v. Brown was arrested outstanding for discovered an warrant his “without probable cause and without a county.21 arrest from another emanating warrant.”27 The arresting officers took Subsequent him to the police interrogation, station for warrant, photographed, Johnson was and issuing him his Miranda warnings at the used in a photograph photographic appeal, argued outset.28 On Brown line-up from which victim of the rob- resulting confession should have been bery prosecuted for which Johnson was suppressed under the Fourth identify able to him.22 In motion Amendment it product because was the challenged suppress, Johnson the admissi- his Supreme arrest.29 The Illinois identification, bility of photographic disagreed, holding Court that the taint of contention that the being photograph used primary illegality was attenuated when product was the of the illegality stemming offending officers issued Brown his from his initial unlawful arrest.23 We re- Miranda warnings taking before his con- jected this contention on appeal, direct fession, assuring thus its voluntariness.30 that, if holding the arrest was ille- “[e]ven Carefully delineating Fourth and Fifth gal, appear would de- [Johnson’s] however, rights, Supreme Amendment tention at the time of the picture taking reversed, holding by them- illegal.”24 was not We went on to con- selves, Miranda warnings cannot serve as clude that the “identification event to purge sufficient by would have been obtained regardless illegality anof unconstitutional arrest sufficiently distinguishable means from the purposes applying Fourth underlying to be illegality purged exclusionary Amendment While rule.31 taint[,]” citing authority primary or absence of Miranda warn- presence Wong passage above Sun.25 ings apparent and the voluntariness of the Brown Illinois certainly confession are factors for courts Johnson, to consider in determining sup- after whether years Two the Su upon Wong Sun preme Court elaborated no pression required, are means rights Id. at 73-74. of his set bail” and counsel was him; appointed line-up was conducted Id. 21. at 74. authority "under the of the commitment” and arrest). not exploitation of the initial Id. 22. at 73-74. 590, 2254, 26. 422 U.S. 95 S.Ct. 45 L.Ed.2d Id. at 23. 73. (1975). 416 24. Id. at 74. At time Johnson was decid- 591, 27. Id. at 95 S.Ct. 2254. ed, 1973, yet in Court had become this to discretionary court. review 2254; 594, 28. Id. at S.Ct. v. Ari- 95 Miranda zona, 436, 1602, 16 384 U.S. 86 S.Ct. L.Ed.2d Louisiana, Id. See v. 25. also Johnson 406 U.S. (1966). 356, 365, 1620, 92 S.Ct. 32 L.Ed.2d 152 (1972) (identification line-up conducted fol- Brown, 596, supra, 29. 95 S.Ct. lowing argued what Johnson an uncon- stitutional arrest did constitute fruit of the 30. Id. at S.Ct. 2254. Wong poisonous tree under in of Sun events, intervening namely, brought “he was 601-03, committing magistrate before a advise him 31. Id. at 95 S.Ct. to addition, discovery an In tem- Texas have held that of “[t]he factors.32 warrant, illegal arrest after an detention the arrest and the con-

poral proximity of fession, intervening consequent cir- or arrest but before discov- of presence contraband, cumstances, and, “may” purpose ery and seizure of particularly, the connection be- are serve to break the causal flagrancy of the official misconduct factors, illegality tween subse- Applying these all relevant.”33 primary to quent purge seizure so as Supreme Court concluded sup- comprehensively taint. The first and most been Brown’s confession should in this line of is opinion reasoned cases pressed.34 in Appeals that of the Dallas of Court ap- the proper The case involves instant Characterizing Reed v. State.36 the issue of doc- plication of attenuation taint Texas,37 one first in impression” as “of Brown, trine, confession, in but appeals in Reed boiled down as of immediately that is seized contraband follows. following an unconstitutional detention [WJhether, an during when the course of discovery of an outstand- arrest. Will the illegal appellant detention relatively arrest warrant few determining purpose appel- stated illegal that ensue between the moments identity, a valid lant’s warrant and the seizure of contraband appellant upon was discovered arrest invariably intervening serve as an event establishing identity ap- appellant’s primary the taint of the purge sufficient pellant authority was arrested under year opinion In our last in illegality? warrant, during found contraband Elias, we observed that “this State inventory subsequent book-in search yet directly weigh has in on against ap- into evidence admissible issue,”35 Johnson, and then least since pellant because the existence of the war- Brown, But a were decided. number of rant sufficiently attenuates connec- have, appeals courts of Texas as have tion between the detention and many jurisdictions other across the coun- of the contraband.38 try. acknowledging opinion While Court’s Appeals in Texas Courts Johnson, proceeded Reed court specifically by a line cases reference spanning last resolve this issue years, twenty several courts in to the attenuation factors identified unrepresented interrogation; Id. at 95 S.Ct. 2254. and under moreover, arrest warrant ob- 603-04, (internal cita- Id. at 95 S.Ct. 2254 tained after the could not serve omitted). tions adequate as an circumstance attenuate where evidence used 604-05, 34. Id. at 2254. See also S.Ct. probable cause for the warrant was establish York, Dunaway v. New 442 U.S. illegality). primary itself a fruit of the (1979) (confession S.Ct. 60 L.Ed.2d 824 suppressed should have been as fruit of the 667, (Tex.Crim.App.2011). 35. 678 339 S.W.3d poisonous where "[n]o tree events [Dunaway's] broke connection between 1991, (Tex.App.-Dallas 36. S.W.2d 940 no confession”); illegal Taylor detention pet.). Alabama, 687, 691-93, 457 U.S. 102 S.Ct. (confession (1982) L.Ed.2d 37. Id. at 945. Taylor's though illegal the fruit of arrest even place after it did take until six hours arrest, custody, police 38. where he remained Id. Brown, excluding question appellant whether tion to the identification sec warnings (pre- Reed received Miranda police tion department] [of was done sumably because the case did not involve for the purpose of ... a providing pretext confession, of a attempted suppression Having search.”41- found both an contraband). only of but intervening event and the any absence of

Addressing the temporal-proximity fac- purposeful flagrant police misconduct, or first, appeals tor court of observed: the court appeals held that the trial case, present we conclude that court properly Reed’s denied motion to the temporal proximity between first suppress.42 illegal second legal arrest and the arrest decided, Since Reed number of does not bear on the attenuation. This other court of appeals opinions have cited

factor has been cited considered authority it as for the proposition exclusively in cases where confessions or intervention of a valid arrest warrant be- statements were obtained from a sus- tween an illegal detention and pect subsequent illegal to an arrest. We subsequent discovery and seizure of also reason unlike confession contraband will suffice to attenuate the cases, where the statements can be seen primary illegality.43 taint of the Unlike arrest, as a psychological product of the Reed, however, subsequent these court of the diminution of the likelihood of the appeals opinions to turn exclusively seem physical evidence as a re- factor, on the intervening-circumstance sult of as arrest cannot be a if that factor Thus, categorically function of the alone were suffi- passage time. we temporal attenuation, conclude that the proximity cient to establish without factor is of no moment this case.39 need to incorporate purpose-and-fla- grancy analysis.44 factor into the Al- Turning next to the intervening-circum though yet this Court has factor, address the stances the Reed held “that question which of the Brown proposition Johnson stands for the factors context, discovery of an outstanding apply warrant dur should how ing an illegal detention of an individual apply, should courts in a num- highest breaks the connection between the discov jurisdictions of other have. ber primary ered evidence and the taint.”40 seemingly Notwithstanding the determina Other Jurisdictions holding,

tive nature of this the court of Practically every jurisdiction other nevertheless went to address question address the of attenuation of taint purpose well, finding physical misconduct “nothing seizure of record that the transporta apply indicates that has deemed it appropriate three State, (internal omitted). ref’d); pet. 39. Id. at 946-47 citations Lewis v. S.W.2d 51 (Tex.App.-Dallas pet.); no Fletcher v. Id. at 947. State, (Tex.App.-Amarillo 90 S.W.3d 419 State, pet.); no Hudson v. Id. at 948. pet.). (Tex.App.-Amarillo no Id. 821; 44.Brooks, Welcome, supra, supra, at (Tex.App.- 43. Brooks v. 830 S.W.2d 817 133-34; Lewis, 54; Fletcher, supra, supra, pet.); Houston no [1st Dist.] Welcome v. 420-21; Hudson, supra, at 787. State, 1993, (Tex.App.-Dallas 865 S.W.2d 128 304 practically rant —as determinative of at- temporal proximi-

of the Brown factors45— circumstances, But the latest trend seems pur- tenuation.47 and ty, intervening downplay tempo- for courts to both the be police mis- or posefulness and, extent, proximity ral factor to lesser emphases. conduct—albeit with variable in intervening circumstance factor no other court since example, For while purposefulness-and-fla- preference proximity temporal has Reed declared factor, reasoning that is graney irrelevant, many have down- wholly courts directly factor most serves third that particularly its when played significance, of the exclu- policy deterrence fuels sepa- an warrant discovery of rule favor sionary place.48 in the first We illegal stop an from the seizure rates emerging trend. have tend- of Other courts contraband.46 ed, after like own courts of our year’s the trend Illustrative of is last Reed, briefly mention all three of opinion Supreme of the Arizona inter- highlighting trial, while Brown factors v. At Hummons State Hummons.49 namely, certain seized vening circumstance claimed that contraband factor— discovery person war- be suppressed of an arrest from should interceding Elias, discussing agree intervening n. supra, at 678 35. We with circumstances primary illegality finding factor and factor determina- the State when to be Jones, confession, tive); 526, generate State v. 270 17 P.3d does statement Kan. viz., 359, factor, (2001) (resolving remaining Brown whether the 360-61 the attenuation subject given warnings, exclusively respect to the his Miranda issue almost so, when, intervening discovery logical application. if has no circumstance of the an arrest between time of the State’s Brief at 22. warrant challenged stop and the seizure of contra- 841, band); 83, Page, State v. 140 Idaho 103 P.3d Hillyard, People 46. See v. 197 Colo. 589 454, (2004) 939, (noting (1979) (en banc) 459 the three Brown fac- (citing P.2d 941 Brown finding discovery but, seemingly but of an tors suppression contra- context outstanding band, practically to be determi- warrant only "degree applying police miscon- "dissipating native in an unlawful taint of intervening relevant circum- duct 1085, seizure”); stances”); Green, Jacobs v. 128 P.3d United States v. 111 F.3d (same). 515, Cir.1997) (Okla.Crim.App.2006) 1089 (7th (applying 521 the three noting temporal prox- Brown factors but 1139, Frierson, imity, militating suppression, 48. State v. 926 So.2d 1144-45 while favor Hill, (Fla.2006); dispositive); Simpson, is not State 725 States v. 439 v. So.2d United 1282, 490, (8th (La.1998) (same); Cir.2006); People States v. 1284 United v. F.3d 495-97 Johnson, 538, Brendlin, 262, 496, (7th Cal.Rptr.3d F.3d & n. 7 45 85 383 544-45 Cal.4th Cir.2004) 1074, (2008); (applying the three Brown 195 P.3d 1079-81 United States factors Faulkner, 1009, (8th noting "when a due v. F.3d Cir. but lawful arrest 1015-17 Gross, 2011). intervening outstanding an warrant is cir- But see United States v. 393, cumstance, (6th Cir.2011) temporal component (finding no tire F.3d 401-06 less police respect relevant than in situations where the attenuation of taint with to the intro- evidence, illegal though exploit predict- physical an detention create a duction of even response (e.g., puiposefulness-and-flagrancy able consent to did "not confession or factor Martin, search)”); weigh heavily determina- State 285 Kan. attenuation (2008) tion[,]” (applying the arrest war- P.3d Brown because noting temporal proximity, rant in the sei- factors but between the State[,]” heavily weights against while "it means zure that evidence "resulted from given indistinguishable dispositive, is not war- that are purposeful dissipate rant and lack miscon- the warrant thus does duct). in this of the unlawful detention case”). Thompson, 47. See State v. 231 Neb. (1989) (2011). (citing N.W.2d 49. 227 Ariz. 253 P.3d 275 Brown but product upon cause it was the of an det illegal in a discovered search ention.50 The trial court denied the mo incident to arrest. If purpose of an suppress, holding illegal stop tion to that the seizure is discover a encounter, essence, not a warrant —in constituted a consensual to discover an in- tervening detention trigger sufficient Fourth circumstance —the that a actually warrant Amendment concerns.51 The intermediate discovered cannot affirmed, . validate admission of appellate court but on a the evidence that different basis, is the fruit of illegality. even if declaring Hummons detained, illegally subsequent If, as court of appeals suggested, a search backpack of his exposed warrant automatically dissipated the contraband occurred after illegality, the arrest taint law enforcement could ing officer discovered Hummons had then create new form police investi- an outstanding gation routinely arrest warrant.52 The Ari illegally seizing indi- viduals, zona Supreme granted knowing review of the subsequent Court discovery of a provide intermediate court’s attenuation of taint warrant would justification after-the-fact analysis.53 illegal con- duct.57 Applying the three attenuation factors reason, For Supreme Arizona Brown, Arizona Supreme Court subsequent determined that “the

agreed with the intermediate court that discovery of warrant impor- is of minimal the temporal proximity sup- factor favored tance” in the analysis.58 attenuation of taint pression, since the seizure of contra- contrast, band within a few of the By occurred minutes purpose flagran- “[t]he stop.54 agreed cy conduct, But it lower also of illegal the third Brown fac- tor, court’s assessment that “this least is the ... goes very pur- heart and important Brown factor.”55 The Hum- pose exclusionary Noting rule.”59 mons court lower next confirmed the itself Brown had deemed the third court’s that the conclusion factor “particularly” important,60 the qualified arrest warrant indeed in- as an Hummons observed: tervening circumstance.56 But found such regular Factors as an officer’s that the regard lower court had erred to routines, practice and an officer’s reason essentially this factor determinative encounter, initiating the clarity itself, observing that the intermediate conduct, forbidding law court had objective appearance and the consent importance

overemphasized may important inquiry. all By conduct, warrant as an focusing may circumstance officer courts in attenuating ordinary distinguish detention’s between encounters (citations 50. Id. at 277. 57. quotation Id. internal marks omitted). 51. Id. 58. Id. 52. Id.

53. Id. at 276. 59. Id. Id. at 278. Brown, 603-04, (citing supra, Id. 2254). Id. S.Ct.

56.Id. non, pri- illegal flagrancy, fulness and vel to devolve into sei- happen

that the intentionally illegal illegal police seizures mary conduct—whether zures they discovering deliberately perpetrated war- what the of purpose the illegal stop specific to be an in rants.61 know generate will hope expectation or that it thus the three Brown factors as Applying justification legitimate some after-the-fact Supreme Arizona prioritized, the search, to arrest have oth- and/or any from the initial that taint found particular- in erwise conducted themselves attenuated, focusing particularly ly disregard right pri- to egregious the of evidence in the record lack the vacy personal integrity that and/or officer had de- suggest detaining the For, protects. when Fourth Amendment stop in the of liberately hope made the case, physical is the the this admit outstanding revealing an arrest warrant fortuity of an evidence because the a justify that would search.62 happens warrant to come to arrest Conclusion perverse- the is before evidence discovered the agree Supreme Arizona We ly encourage, rather than dis- serves view, In our general assessment. Court’s courage, official misconduct and renders certainly the Brown factor is rele- first the Fourth Amendment toothless. but, vant,63 though usually even it favors police To find of summarize: When suppression evidence that is discovered illegal physical shortly in an evidence after the immediate aftermath of and seize will in the pedestrian illegal stop, or roadside it some- an absence the dis be, outstanding in covery in context of an arrest warrant prove times evidence, between, physical physical seizure of “the least im- evidence should or dinarily factor” —at be if portant suppressed, least relative to even highly purposeful while are hesitant to is not or fla other two. And we misconduct grantly categorical confirm as matter that the abusive Fourth Amendment scenario, temporal a valid rights. circumstance of arrest Under proximity “of is But importance” paramount warrant is minimal factor. —after all, it, usually outstanding no an warrant dis without there can when is illegal stop when covered between the and the physical attenuation evidence, immediately physical impor seizure of is unearthed after agree temporal proximity that it not be tance of factor de should over- —we scenario, the inter emphasized the ultimate detriment creases. Under goal vening necessary of deterrence that animates the circumstance but never, itself, exclusionary agree wholly fac Finally, rule. we determinative calculation, important purpose- more factor is the tor attenuation ity prove will Id. at 279. the determinative factor exclusionary apply. whether rule should Id. case, example, instant Officer Grijalva outstanding war- discovered an Thus, argument reject we State's arrest, appellee's period the brief rant for "only apply the first Brown factor should illegal stop time from the to the disclosure taking of after a confession or statement compellingly in would of contraband counsel arrest, suppression in the absence of favor of even physical evidence as this case.” State’s Indeed, scenario, any particular purposefulness or given at 22. in a Brief perpetration illegal stop. temporal proxim- will often be the case that flagrancy of the purposefulness po- weight assessment of the and credibility of and/or non, misconduct, But, testimony.66 lice vel becomes of vital once resolved pre- questions that our importance. To extent all of historical fact and weight the appeal in analysis credibility Brown on direct John- and of the light the exclusive placed practically emphasis son most favorable to the trial court’s resolu- on the of an ar- issues,67 circumstance of the an legal appellate tion court rest warrant the justify to admission of then conducts a review de novo of the following stop, evidence an we dis- proper application of law to the factual approve it.64 disputes credibility issues as thus re-

solved, in say order to whether the trial ANALYSIS judge legal has reached the correct conclu- respect legal sion with to significance “the Review Standard of the of facts he has found.”68 case, In the instant at the State’s Here, request, express the trial court entered the trial court found as a matter findings written of fact and conclusions of historical yellow of fact that “the Mus- respect appellee’s tang’s law with tail lights light” to motion red at emitted suppress.65 reviewing to of the trial time give refused to on a ruling sup Grijalva’s testimony court’s ultimate motion to credence to at press, give suppression an must appellate hearing “almost that he had “had a total deference” trial court’s to the resolu reasonable belief’ that a traffic code viola- tion of issues of fact and to historical its tion occurred. The State does not Elias, imply supra, (quoting We do not mean that Johnson See at 673 State v. wrongly Ross, challenged decided facts. The on its (Tex.Crim.App. 32 S.W.3d Johnson, photographs evidence in 2000), from quotes which in turn Guzman identified, which he were not taken im- (re- (Tex.Crim.App.1997)) mediately following Johnson’s deten- viewing court a trial defers "to court’s deter- by preceded discovery tion and were of mination of the historical facts that the record outstanding warrants his arrest. There supports especially the trial court’s when fact opinion purposefulness no mention in of our findings are based on an evaluation of credi- detaining or officer’s conduct demeanor”). bility and operate prevent that would of outstanding breaking warrants from ("The appellate See id. court should af- illegal stop causal connection between the ford the same deference amount of to trial Thus, taking photographs. and the we rulings 'application courts’ of law to fact question have no reason our now to ultimate questions,' questions also known ‘mixed conclusion in Johnson fact,’ law and if the resolution those ulti- regardless by "would have been obtained questions mate an turns on evaluation of distinguishable sufficiently means from the demeanor.”). credibility and underlying purged illegality pri- mary taint." 496 at 74. S.W.2d Sheppard, 68. State v. S.W.3d Cullen, ("Effective supra, 65. See ("[F]actual (Tex.Crim.App.2008); also id. see requirement opinion, date of this is: what, when, where, findings are who did upon losing request party on a how, why. They credibility or include also evidence, suppress motion to the trial court They legal determinations. do include findings. By shall state its essential ‘essential rulings suspicion' 'probable on ‘reasonable findings,' we the trial court mean that must cause’; legal subject those are conclusions findings make of fact and conclusions law review, deference."). de novo adequate appellate provide court with a upon basis which to review the trial court's facts.”). application of the law the contend that the trial court’s outstanding historical least two arrest warrants and now Thus, confirming that were active. credibility its determi- finding of the trial court was correct to con- while record unsupported nation are temporal proximity clude that not, the trial stage, does contest ecstasy illegal stop seizure consequent legal court’s conclusion that factor supports suppression, does not probable cause or “did not heavily weigh very interven- suspicion perform a traffic reasonable ing circumstance the of appellee in which stop” Mustang of the the valid The trial court arrest warrants.69 take this was a We therefore passenger. that “the also concluded given as a and turn to the legal conclusion weighed suppres- action” in favor of properly trial question whether the sion, findings but it made no of fact tai- of applied the doctrine of attenuation indeed, to And the lored this conclusion. of to facts the case to determine the particularly developed record well stop have re- whether the unlawful should respect with to this issue.70 But what suppression ecstasy in found sulted in evidence there is the record was undis- pocket. in the appellee’s not, view, in the puted support and did our application trial court’s of the law to the Application Law to Facts of facts. in Grijalva ecstacy found the the

appellee’s pants pocket and seized it within purposefulness, As to the rec illegal stop Grijalva minutes of the not before ord shows that and Chavez were —but of determining appellee part specifically first had a unit tasked on that that Grijalva’s fail- that 69. The trial court considered so the trial court could make more ex warnings findings give appellee plicit respect particular ure with to a to Miranda discovering ecstasy litigated expressly a factor fa- issue had been at the before that argues hearing voring suppression. appellee suppress. now on motion to Tex.R.App. legitimate (citing that a be- & this was consideration S.W.3d at 676-77 P. 44.4). appellee cause the admitted the ecsta- We see no occasion likewise to re Elias, sy pocket Grijalva actually arresting in con- mand the instant In before case. it, pat-down ducted the search that secured officer that fail testified he observed Elias signal and admission came as a direct result to a turn a within hundred feet of Thus, intersection, Grijalva’s appel- query. custodial but the trial court make failed to specific finding part respect lee’s of cau- a to admission was chain with the credibili illegal stop ty potentially dispositive testimony. sation that extended from Here, testimony of the evidence used Id. there was little at the ultimate seizure against hearing Appellee’s suppression specifically pertaining Brief him. at 13-15. But factors, challenge ad- appellee does not here the attenuation of taint none that missibility only particularly of his to have called the trial admission seems for itself— Grijal- ecstasy quite credibility it is de evident from court to evaluate witness —and party reopen va's that he would have discovered meanor. Nor did either seek to ecstasy any part hearing supplement suppression in event as of his search person appellee’s respecting of tire incident to his arrest record additional at with evidence outstanding under the warrants. Under these tenuation of taint. See Black circumstances, (tri- we (Tex.Crim.App.2012) do not consider the lack of 633-35 S.W.3d warnings any hearing Miranda to be factor of sub- reopen al court has discretion to on weight at stantial all. suppress may motion to evidence revisit ruling previous supplemental its Elias, therein). Consequently, presented we held that it would be contin nothing gained we see to be from a remand gently appropriate for the court of court, proper presen- "the remand the cause to the trial under under Rule 44.4 assure Procedure, Appellate appeal. case Rule 44.4 of the Rules of tation of” the on support traffic day looking Grijalva’s with violators. record a conclusion that they mak- There is no indication that were during conduct the course of this eon- purpose stops traffic other cededly illegal flagrantly traffic than to enforce the traffic laws or that' derogation appellee’s Fourth they hope the specific expec- harbored or Amendment rights.71 Grijalva not de- did they tation might obtain the consent appellee, mand that the passenger motorists search their vehicles car, identification; supply merely asked identify outstanding motorists for it. Once the appellee pro- assented to might warrants so conduct information,72 vide that Grijalva immedi- Nor searches incident arrest. does argues appellee Grijalva 71. The nated red We color." note that Chavez traffic to have initiated the court concluded that the conduct taillights the basis of defective was itself "flagrant" not, such specifically, officers was — illegality a blatant as to constitute some'evi- purposeful. also Law Conclusion of purposefulness flagrancy dence of both Lopez-Valdez While makes it that evident Gri- part. Appellee’s on their Brief at He 19-22. jalva and Chavez should have known better upon Lopez-Valdez, in relies United States v. stop than to conduct a traffic for the reason acknowledged did, which the Fifth Circuit nothing present in the record estab- law, police under Texas "state officers do they actually that may lishes did know. This authority stop with vehicles cracked explain why the trial court failed to conclude taillight 'permit! lenses that some white i.e., ] purposeful, that their conduct was a mere " light light.’ to be emitted with red 178 F.3d all, pretext fishing expedition. for a After 282, (5th Cir.1999) (quoting Vicknair why police would a officer with an ulterior 180, (Tex.Crim.App. motive, hoping subsequent that events will 1988)). Moreover, the Fifth Circuit held that grounds uncover reasonable a to conduct stop obviously a traffic on this is so basis search, deliberately choose he what knows in- unlawful that the Government could not genuine does not constitute a traffic violation good exception voke the faith of the exclu- purportedly objective making as the basis for sionary rule to admit the fruit of the search stop? the initial for the trial con- As court’s following stop the unlawful because well- "no that clusion the officers’ conduct was fla- police reasonably trained Texas officer could text, grant, post, expressed reasons in the light appearing believe white red that with fairly supports we do think the record light through taillight a cracked con- red lens "granting conclusion. Even the establish- law[,]” stituted a violation of and "if traffic Sun, primary illegality,” Wong of ment stop officers are allowed to vehicles based supra, at 83 S.Ct. conduct upon subjective that their belief traffic laws any egregiously officers was not at time abu- have been even no violated where such viola- impropriety [stop] sive. While of ”[t]he fact, occurred, has, potential tion light Lopez-Valdez, Grijal- of was obvious” in pretext abuse of traffic as ef- infractions any va did not exhibit of that "awareness fecting stops seems boundless and the costs fact[,]” stop and the manner which the rights privacy Id. at excessive." ”give[] perpetrated appearance does not It that is true the trial court in case surprise, of been calculated to cause expressly Brown, found the officers "did not have fright, supra, at confusion.” [or] yellow Mustang a reasonable belief that the 95 S.Ct. 2254. lights had white to the rear” and that the lights "Mustang’s light" Finding red court tail emitted at In its of Fact the trial stop. Findings time appellee of Fact 3 & found “did not volunteer respectively. But the trial court made no information but rather answered the officers express finding respect provided identify questions of fact with to wheth- when he [sic] taillights may er the But this not mean have emitted some white information.” does (if light. appellee readily silently) and some red In his redirect that the did not testimony, Grijalva Grijalva’s request comply to have for identifica seems acknowl- tion, edged taillights may nothing improper about have been and there was light, respect although Grijalva’s request. mixture red and With the driver white stopped "the for a infrac continued to maintain that white domi- of an automobile traffic warrants, satisfactorily factor addresses ately a check for as conducted fashioning a rule that that concern without during to do routine he was entitled altogether would remove the long so as that warrant check traffic discovery of an arrest warrant as a factor legitimate duration of extend the does not analy- relevant the attenuation stop beyond scope of its the traffic sis, appeals opinion tended as court So, while original justification.73 appeals adopted do. never illegal, Grijalva went itself effectively approach presume that would would have beyond the bounds what flagrant purposeful police miscon- constitutionally permissible had the been and/or primary illegality duct from the fact of the its justified inception. in fact been assessing rather than the character alone circumstances, applying the Under these illegality, any subsequent law, opin- it in this explicated we have conduct, to determine whether ion, of the case in undisputed facts they actually pur- indicates that behaved review, we that the our novo conclude de particular posefully flagrantly officers, arresting although behavior of that the court of case. We hold outset, was not so clearly unlawful rely upon presump- erred to this de facto flagrant particularly purposeful and ruling tion to affirm the trial court’s appellee’s outstanding appellee’s suppress. Applying motion may not serve to break arrest warrants analysis today, appropriate we hold the illegal the connection between causal that the trial have that court should denied ecstasy stop the of the and motion. appellee’s pants pocket, purging thus the hold that the trial primary taint. We CONCLUSION court erred to conclude otherwise. Accordingly, judgment we reverse the The court of nevertheless af- appeals. the court of We the remand judgment the of the trial court out

firmed pro- cause to trial court for further the overriding of what it deemed an concern ceedings opinion. with this consistent contrary ruling “encourage” that a would police stops a undertake unlawful on MEYERS, J., dissenting filed opinion. a establishing pretext, purpose “for the J., JOHNSON, filed a dissenting probable discovering cause or exis- opinion. certainly tence of arrest warrants.”74 We However, KELLER, P.J., WOMACK, J., we and share that concern. think that and prioritizing purposefulness dissented. Davis, tion, may supra; George, supra; “an demand identifica 73. St. Kothe v. officer State, 240, tion!;.]” 54, State, (Tex. Davis v. 947 S.W.2d 245 152 & 36 S.W.3d 63-65 n. 1997). (Tex.Crim.App. n. Even if a detain- 6 Crim.App.2004); Brigham, United States v. may similarly "demand” iden- officer not (5th Cir.2004); George 382 F.3d 507-08 passenger, tification that is not what Schmolesky, & E. Dix John M. Prac- Texas indisputably Grijalva evidence shows 13:32, §§ Criminal Practice and Procedure tice: State, George St. did in this case. See (3rd ed.2011). 13:48 (Tex.Crim.App.2007) S.W.3d ("[WJhile may question passenger officers Mazuca, Reed, supra, (quoting supra 74. at 948 request separate without identification 3). n. suspicion passenger, reasonable compel may passenger to answer or not

imply compliance request with tire required.”). MEYERS, J., opinion. fact, a dissenting findings filed Based on these the trial the following made conclusions of majority The result fashioned law: opens police ignore door

probable requirement cause and make driver Mustang The of the did not stops adequate grounds traffic without violate Section 547.322 Transpor- majority’s doing analysis so. The on tation Code December weight of cor- may the Brown factors 2. The Police Officers did rect, but the result the trial discounts cause probable suspicion or reasonable findings credibility court’s as to the perform a traffic stop on date. officers. 3. The arrest warrants of Defen- A reviewing court should almost “afford purge dant did the taint rulings total deference to the trial court’s to the flagrancy police due questions on appli of historical fact and on action, the close temporal proximity and questions cation of law fact turn that no warnings Miranda were upon credibility demeanor....” Guz read. State, (Tex.Crim. man v. 955 S.W.2d weighing purpose App.1997); see Keehn v. Brown, police conduct under (Tex.Crim.App.2009). major- majority reasons that the applica- court’s

ity give proper fails to deference law tion of the in determining facts rulings, in particular court’s the fol- that the action flagrant was not lowing: supported by evidence record. having The trial court tes- heard the However, Maj. 308-09. op. at there is no timony evaluated the de- indicating that the officers were meanor of the witnesses finds that Offi- justified make because cer Chavez’s had a taillights emitted red rather light, than that Transportation reasonable belief J.) only light. (Johnson, white See Dissent Code 547.322had been not be violated to (discussing application 312-13 of Texas credible. 547.322). Transportation § Code The col- 3. The having trial court heard the tes- photograph taillights of the vehicle’s timony de- evaluated the provided was the trial court showed meanor of the witnesses finds that Offi- taillights compliance that the were in with cer Chavez not have did a reasonable the law. The officer testified con- yellow belief that Mustang the white had trary, lending support thus trial lights to the rear. court’s determination that the 7. yel- The trial court that [the] finds was credible and that the officers’s lights low tail Mustang’s emitted red flagrant. conduct was The trial court’s light on December supported by determination was the rec- 11. The court having trial evaluated ord and involved an evaluation cred- credibility of the witnesses finds that Thus, ibility appropri- of the officers. there was no other reason de- for the the reviewing ate action of court is to defer of the vehicle other than the tain[ment] to the trial court. white lights rear. 16. The trial court Although majority accepts finds that Alvaro the trial conclusions, 307-08, suspected maj. Mazuca had not been it op. court’s by crime or wrong doing ques- contrary when he comes to a decision determin- was by tioned stop Officer Chavez. that the taint of the was illegal was appel- (Tex.Crim.App.1988). Vicknair by attenuated stopped by officer a tail- majori- police If I because arrest warrants. lee’s cracked, light “per- lens and the crack the trial give would deference to ty, I also light some with considering the fla- mitted white be emitted findings when court’s light.” stopping red Id. at 187. After action and conclude grancy Vicknair, police pounds found five of mari- sup- that the taint of the detention court juana appeal, in his car. Id. On ports suppression drugs. taillight found that cracked Furthermore, practical effect of the effect, the statute did not violate then in majority’s holding encourage police is to 6701d, 111, ev- required § Art. which stop unlawfully motorists officers ery motor with equipped vehicle must will be discov- hope that an arrest warrant lamps light at least two tail that emit a red A process. ered in the law enforcement from 1000 the rear. plainly visible feet to may lawfully a motorist officer statute, Id. at The current Tex. probable when the officer has cause 547.322(d) Transp. § substantial- Code a traffic has oc- believe that violation ly the the statute at issue in same as curred. Walter v. taillamp “A shall emit a red Vicknair. (Tex.Crim.App.2000) (citing Whren v. 1,000 light plainly visible at a distance States, 806, 810, 116 United 517 U.S. S.Ct. feet from the rear of vehicle.” (1996)). 1769, 135 L.Ed.2d 89 As deter- opinion, quoted its this Court by by supported mined the trial court and appeals. court of record, officers here had neither probable suspicion nor reasonable There is no evidence in this cause whatsoever emit appellant’s believe that the driver violated section record that car failed to Accordingly, visible plainly 547.322. red at a distance rear, sup- by rightfully required and the evidence seized was 1000 feet to the agree contrary, arresting § I pressed court. On the red appeals, outcome of the officer testified did emit a respectfully light visible to him at all times at an dissent. no

unstated distance to rear. Since JOHNSON, J., a dissenting filed one appellant’s testified that car failed opinion. light, emit a red was no visible there justify the original basis all to deten- Ignorance of the law is no defense. We tion. times, all many heard that statement Id. at usually in the context a defendant who not he

claims to have known of the law he or The officer further testified that If an aver- at the Police charged violating. she with been instructed Houston age plead Academy, citizen cannot ignorance supervisors as well as his law, how we to law-enforce- if a tail department, are condone a that officer, charged knowing light ment who is on a motor vehicle was lens enforces, using you the law ‘cracked the extent could he or she that that justify light through excuse to a traffic that is bla- observe white coming a tantly improper? This decided in rear’ this constituted violation of that requiring 1988 the law an automobile of this State. The court of traffic laws display light appeals rejected “good red to the rear did not officer’s concerning govern mean that light all other colors of are faith” belief the law State, motorist a motor ing stopping driving barred. Vicknair v. 751 S.W.2d 180

313 State, tail light Cr.App.1977); vehicle a “fractured” v. Soileau 156 “This was a warrantless arrest. A lens: 244 Tex.Cr.R. S.W.2d 226 may (1970). officer arrest an offender peace opinions The in each of those for com without warrant offense clearly cases reveal that there was some in presence mitted or within his an legitimate evidence of traffic 6701d, view. Pro. Ann. art. Tex.Code stop. does Such not exist here. (Vernon 1977). However, § what Because the evidence was seized as a this officer testified he observed did not result of an unlawful it became § constitute an offense under 111 of art. 38.23, under supra. inadmissible Art. 6701d, and the officer’s well-intentioned Id. at 190. mistaken that it will but belief did not U.S., legitimate this search. Scott v. At they the time stopped appellee, U.S. 128 56 L.Ed.2d [98 168] S.Ct. case assigned duty officers were (1978). intent, ‘Instead of motive or looking traffic hopes violations. One must view the circumstances ob assigned who that officers are to enforce they jectively sup to determine whether traffic laws know what those laws require, port justification.’ Nickerson it appears but that were these officers State, (Tex.App. that, for years, unaware more than 20 1983). -Dallas If circumstances do light had been clear that “red the rear” support justification not claimed for only light not require did red to the rear. search, illegal- argues judge While the state ly suppressed. must seized Tex.Code light couldn’t tell whether red (Vernon 1979).” Pro. art. Crim. 38.23 day- pictures because the were taken in Id. at 187-88. light, red is red in both darkness gave

The sole reason officer daylight. appellant’s stopping vehicle was however, The judge, trial does seem appellant believed had committed a tail He ruling understand the Viclcnair. light “infraction” the traffic laws. pictures taillights saw color stated, Given what we have we find and light. red The ruled emitted justified hold that the officer provided has state us with black-and- stopping appellant’s vehicle for rea also photographs. judge white son, probable nor did he have cause to found the officer’s as to appellant’s vehicle. Also see and taillights condition of was not credible. State, compare Willett v. 454 S.W.2d 398 present were hearing We State, (Tex.Cr.App.1970); Hall v. judge therefore cannot the officer’s credi- (Tex.Cr.App.1973); S.W.2d 788 Pruitt v. bility ap- ourselves. As court of (Tex.Cr.App.1965). S.W.2d stated, peals Furthermore, hunch, the inarticulate We afford almost total deference to suspicion, good or faith of arresting trial court’s determination historical officer was not sufficient to constitute record, supported by facts that are arrest, search, probable cause or de are particularly findings when such tention of appellant passengers. and his (Tex.Cr. State, based on an evaluation of witnesses’ Talbert v. 489 S.W.2d 309 credibility The trial and demeanor.... App.1973). Contrast the above cases State, judge sole trier of with such is the and exclusive cases as Praska v. sup- motion (Tex.Cr.App.1977); Drago hearing S.W.2d at a on a v. ^[553] S.W.2d (Tex. press. If the trial court has made fact en- reviewing

findings, a court does PFEIFFER, Appellant, Lavern de- A. factual review but in its own gage the trial court’s fact cides whether rec- by the findings supported are sentiment .... same

ord share [W]e Texas, Appellee. The STATE of our sister “trepidation” some of No. 06-11-00001-CR. concluding expressed courts have discovery of arrest war- an an officer’s Texas, Appeals Court of conducting an deten- rant while Texarkana. attenuation tion would sufficient provide finding of remove taint from the July Submitted: “en- do want to contraband. We upon suspects courage the seizure July 6, 2012. Decided: investiga- inadequate while an grounds 24, 2012. July Overruled Rehearing of es- purpose tion is conducted tablishing discovering cause probable

the existence of arrest warrants.” For reasons, uncover- we conclude the

these

ing of arrest warrants failed Appellee’s attenuation so as to provide sufficient ecstasy from

insulate the err in

taint.... court did not [T]he suppress.

granting Appellee’s motion Mazuca, 08-09-00102-CR, No.

State v. *2, *3, (Tex.App.- *7 WL (not 2011) Paso, Apr. designated

El omitted). (internal citation

publication)

I would that the court of hold

correctly recognized without traffic

highly improper officers name, appellee’s not have learned

could warrants, or him

found active searched contraband, all fruits recovered We, ap- like the court of

poisonous tree. defer-

peals, “afford almost total should

ence to a trial court’s determination of that are supported

historical facts

record, particularly findings when such are of witnesses’ credi-

based on evaluation

bility sup- and affirm its demeanor”

pression the evidence that was obtained stop. improper

because of the traffic I

respectfully dissent.

Case Details

Case Name: State of Texas v. Mazuca, Alvaro

Court Name: Court of Criminal Appeals of Texas

Date Published: May 23, 2012

Citation: 375 S.W.3d 294

Docket Number: PD-1035-11

Court Abbreviation: Tex. Crim. App.