State v. Daugherty

Maloney, unnecessary Reh’g)(Baird, on because Overstreet attenuation JJ., reasons, incriminating concurring). join I appellant’s For these statement was Nonetheless, illegal only judgment of made before the arrest. the Court. majority relies Bell v. MALONEY, proposition Judge, concurring. 788 n. that “a custodial confession sometimes be disposition points I concur in the of of event, ...,” precustodial motivated seven, join the error six and and otherwise appellant’s preeustodi- in this was which case opinion point of the Court. In his sixth present being at the murder al admission to error, that not appellant complains he did majority’s Majority op. at 262. The scene. adequate warnings pursuant receive Tex. unpersuasive. reliance Bell is state- 38.22, § prior Code Grim. Proc. Ann. art. quote ment in Bell from Stevens’ Justice making videotaped In his oral statements. York, concurring opinion New Dunaway point, majority resolving this discusses 200, 220, 2248, 2260-2261, requires warnings given § to be (1979) in context 60 L.Ed.2d 824 by the “to individual whom the statement “temporal vagaries of the discussion of the epistle unnecessary made.” This to the Bell, proximity” factor. 788. disposition this point of error for two only place is found our First, majority reasons. as the notes foot- appears in in Bеll caselaw footnote four ad- six, supports note the record trial court’s dressing the same issue. finding appellant’s polygraph that examina- reasons, foregoing I concur Hidalgo’s appellant For the questioning tion and of. seven, single, points of six and and other- interrogation. constituted a with error continuous join warnings In wise Court. finding, view of this adminis- examination, prior polygraph tered to the undisputed,

fact which is to the extended Second,

videotaped appel- oral statements. argue

lant in his brief that his §

statement was taken in violation of 3 be- warnings given by

cause were

individual “to whom the statement is made.” that

Review of the statement of facts reveal objection lacking such an in the trial was Texas, Appellee, STATE point court I as well. would overrule this concluding supports error that record Danny DAUGHERTY, Appellant. Joe finding warnings that the trial court’s appellant prior polygraph received to the ex- 0924-94. No. Hidalgo’s amination extended to interview Texas, Appeals Court of appellant. Criminal En Banc. seven, alleges point appellant

In of error videotaped and his his oral statements June third in viola- written statement were taken law tion Texas because were

products illegal of an warrantless arrest.

agree with the determination illegal. agree I further arrest that the was harmless. error harmless, holding how-

addition to the error

ever, appellant’s finds “the

statements were admissible because appellant’s

taint cus- between arrest sufficiently [was]

todial statements attenuat- Majority op.

ed.” at 262. Discussion Daugherty V.A.C.C.P.1 1994). (Tex.App

S.W.2d 522 Worth . —Fort plurality had reasoned discovery doc “because the federal inevitable prohibitions to core trine not an Amendment, ex of the Fourth an rule, ception to the federal evi any mandate of 38.23 to exclude article violation of dence obtained in the United not, even neces Constitution sary require implication, a decision about have been evidence Id., anyway.” grant discovered 798. We petition discretionary ed for re the State’s view in this to reexamine this cause issue. that, Having today done reaffirm the holding of reasoning and Garcia. essentially this We are called in cause to decide what Article in law. “evidence obtained violation of’ the language In our view this brooks no inevit doctrine; actually “obtained in violation law” must be exclud might ed whether or not later been lawfully. “obtained” that, The dissenters would hold as with the taint, doctrine of attenuation “legally serves to break” the causal illegal acqui- connection between conduct and Dissenting op. It sition of evidence. necessarily “legal” is this “and not break Kearney, Westfall, Worth, Jeff Greg Port in some actual the chain of break causation appellant. for [that] is what breaks the causal connection Paul, Matthew Attorney, Assistant States Dissenting ...” op. 277. Thus the dissen- Austin, Sylvia Mandel, Assistant District At- essentially ters concede that torney, Worth, Fort state. legal is a fiction —that actually does not break the connec- causal tion. Yet seem to the dissenters believe ON OPINION STATE’S PETITION FOR because the United States DISCRETIONARY REVIEW adopted purposes this fiction for of its CLINTON, Judge. rule, own court-made somehow Following legal the lead of this Court’s this must also be fiction found within Garcia v. 829 S.W.2d 796 the of our statute. (Tex.Cr.App.1992), statutory Ap- strange the Second Court of This is a breed construc- peals recognize attempts this cause declined to an tion. The dissent to bolster discovery exception prior opinions to the statuto- claim with citation ry exclusionary holdings rule embodied Article Court. But the basis for the 38.23(a), supra, 1. Article reads: the America, laws of the United States of Constitution or against “No evidence admitted in officer or other shall be person any provisions in violation of the accused on the trial of criminal case.” Texas, Constitution or laws the State of or of Analogy crystal prior opinions is less than clear. The Johnson those itself, Indeed, other than Garcia which true It is Johnson hand, reject never dissenters out of we have (Tex.Cr.App.1994), the ac- squarely addressed whether Article 38.23 incоrporates at- that Article 38.23 the held discovery an doctrine. commodates According to of taint doctrine. the tenuation dissent, controlling, squarely basi- Johnson is Language Plain cally argument that “it adopting the State’s Article make no sense hold would intent, divining legislative look doctrine, not incorporates attenuation but the language first to of the statute. When the discovery Dissent- the inevitable doctrine.” meaning plain, we look further. the disagree. ing op. at 276. We (Tex.Cr. Boykin v. clear, lan App.1991). As Garcia made the perfect say sense to that Article It makes ac guage plainly of Article 38.23 does not the taint 38.23 accommodates attenuation discovery. a doctrine of inevitable discovery. commodate Un- but not inevitable construction, The inevitable doctrine assumes statutory the rules words der relationship illegality the and causal between according to common interpreted to be are It the assumes that the evidence meaning. evidence. usage ordinary See their 311.011(a). actually illegally. The doc Code, § was “obtained” Government Y.T.C.A. trine then whether the evidence would commonly gain asks “to The word “obtain” eventually have been event “obtained” or usually by planned action effort.” or attain (1977). fact Dictionary lawful means. But the that evidence Collegiate New Webster’s lawfully anyway “obtained” ordinary meaning may could have been ac- “obtained” it fact negate not the that was in fact doctrine inas- commodate the attenuation illegally. the as, “obtained” Under 38.23 on depending much how removed the possible legal attain inquiry regarding the is from attainment of evidence actual should never be ment of the evidence ordinary person would not con- illegality, illegality its causal reached. Once been “obtained” sider evidence have connection to the evidence have been estab so illegality. especially This is if the by that lished, evidence must be excluded. See meaning of “obtained” includes common State, supra, dissen concept “planned action or effort.” some legal fiction that stopped ters’ what-would-have-been illegally not If the had B, B; causal connection car, somehow breaks actual if not then not then defendant’s D, procurement of illegality C; C, D; between and actual not not if not then if then not decidedly Z; Z, not accommodated evidence is if the evidence— ... not then not not plain language of ordinary the statute. point beyond is a which there just understanding “obtained” does not claim, may Contrary to what the dissenters By argument Article apply. their makes the inevitable rejecting a strict be viewed as could “but/for” statutory exception Texas an to the true although it is for test causation — already exclusionary rule. But 38.23 the evidence for initial express exception, contains one see Subsec- obtained, that will not not have been would (b) thereof, according to rules of tion purposes of to be “sufficient” for the be held statutory construction, con- a statute where ordinary because evidence exclusion exception, an its terms must express tains meaning of does not extend “obtained” excepted. 67 Tex. all cases “attenuated,” remote, causal rela- or such Garcia, (1994); § Jur.3d Statutes is based on the tionship. This construction statute, construing a it is “In 38.23, not on express language of Article imply excep- ordinarily permissible to an obedience to United States blind engrafted ... tion Nor decisions. by implication merely because statute as it is on statu- doing argument, But this based good for so.” there to be reason seems (1994). construction, be made tory plausibly cannоt § 121 67 Tex.Jur.3d Statutes for doctrine. Inevit- Court.2 How United ever, assumes that this is a enacted because statute illegally was obtained. From there it further Legislature, required Texas we are to inter inquires pret language of the statute order to legally in any Nothing been obtained event. legislative implement enacting intent proceeding analysis regarding the at- supra; Boykin it. See V.T.C.A. tenuation taint doctrine alters the fact that Code, 311.003; § Government 82 C.J.S. plain language does not 322(b)(1). § glance, At first the dissenters provide inquiry potential legal for an into the appear statutory performing construc to be acquisition of evidence once has been es- tion, they frequently cite to “obtained actually tablished that “obtained in violation of’ law of Article law. violation of’ they quickly But V.AC.C.P. abandon this pretense in favor uncritical adherence to Causation

Insufficient Supreme decisions of the United States it, They proceed reasoning As we understand Court. from one sentence in the of the Williams, 1) Nix v. proceeds dissenters as follows: the Su- (1984), preme in pure not a 81 L.Ed.2d which the adopted Court has “but/ analysis Supreme for” implementing language causation in Court uses the “taint” elaboration, rule; 2) when, here, exclusionary оwn without court-made viz: “But the question in that, inevitably the Court has said under its would exclu- rule, sionary illegally the have been discovered without reference fact that obtained misconduct, error or there have been is no discov- by legitimate provide ered nexus taint and later means sufficient serves to Id., “legally evidence is admissible.” U.S. at break” causal connection be- 3) illegality evidence; at tween the 104 S.Ct. 81 L.Ed.2d at 390. in Johnson v. we From this reason concluded that refrain dissenters that does inevitable pure also somehow creates embrace “but/ 4) analysis; and, for” “break” in the causal causation “in- connection between because discovery” acquisition evitable legally breaks evidence. But connection, it, they explain just causal fail to how the causal con like the attenuation of Johnson, actually taint at nection doctrine issue in is broken must also 38.23(a). they prac be This And accommodated doctrine. while deft, fact, tically acknowledge is a argument deft that that the inevitable dis —so fiction, covery legal redder is a is almost inclined doctrine fail to to overlook the fact decides, explain begs, language that it rather than how of Article 38.23 central question implеments in this cause. would simply it. dissenters graft this doctrine of our pur- whole issue here is whether statute, independent practically criti poses 38.23(a), interpreting analysis cal at all. agree discovery” really that “inevitable break the causal connection between the ille- Exclusionary Exception? gality depends, and the evidence. That course, upon what Article obviously part dissenters believe says when it “evidence in violation process deciding whether evidence of’ purely question law. And this is of has been “obtained violation of’ statutory construction. Not even the Su- determining Fourth is Amendment whether preme presume Court would to instruct us on exclusionary applies. the federal rule Unless how our own statutes construed. Court would exclude the evi- implementing pursuant Were we a court-made dence to its exclusion- rule court-made rule, ary illegally we would simply of course be free to follow the lead the evidence 2. App.1991). Even we would then not be bound to do so. (Tex.Cr. Heitman 815 S.W.2d 681 sanction is apparent explain belief would “Whether obtained. case, imposed particular why they appropriately rule invoke federal 38.23(a). clear, sepa- make is an issue our decisions principles interpreting Article belief, question the Fourth rate from the But miscon- if this the dissenters’ seeking rights party Amendment strues the nature of federal by police rule violated invoke the were rule. question is cur- Only the former conduct. outset, we noted at the As us, rently it must before be resolved discov observed pre- ‍​‌​​‌​​‌‌‌​‌​‌‌​​‌‌‌​​‌​​​​‌​​​​‌​​​‌‌​​‌​​‌​​​‌‍by weighing the costs and benefits ery exception an “is not to core venting prosecution’s the use case- Amendment, prohibitions of the Fourth tangible inherently trustworthy in-chief of exception an a search reliance on evidence obtained in Today at the dis rule[.]” by a detached and neutral warrant issued conclusion, reject opining senters instead ultimately is to be magistrate that found defective.” prohibitions fact to core 906-07, U.S. at so, Fourth Amendment. This dissen (citations quota- and internal L.Ed.2d say, a be ters “because strikes balance omitted). It is from this treat- tions clear society’s deterring police interest in tween very that the “balance” be- ment Leon having public misconduct and the interest in cost and the societal tween deterrence juries a probative receive all about jus- today’s that dissenters believe exclusion 278, op. Dissenting citing at Nix v. crime.” the inevitable tifies сonclusion that Williams, 443, 104 supra, at 467 U.S. at S.Ct. “exception prohibitions is an core they In this are 81 L.Ed.2d part instead Fourth Amendment” is demonstrably mistaken. analysis deciding excep- an whether is exclusionary rule. need reach tion to the We Throughout majority opinion the exclusionary question rule the whether the therein, opinions every separate and in all already we have concluded applies after Supreme the Court characterized member prohibition Fourth Amendment that core excep- the as an inevitable transgressed. As the has been exclusionary tion than a to the rule. Less plain Court made Leon: decided, after month Nix was its court handed down United by wrong the Amend- “The condemned Leon, U.S. States v. S.Ct. unlawful fully accomplished ment (1984). first 82 L.Ed.2d There itself, and exclusion- or seizure search “good excep- faith” recognized so-called rule intended nor ary is neither rule, exclusionary refusing re- tion rights the invasion of the defendant’s cure quire suppression of evidence seized under already he has suffered.” which unsupported by probable search warrant 3411-12, Id., at at U.S. long seizing officer reason- cause so as (citations quota- at and internal L.Ed.2d judgment ably relied the erroneous omitted). tions magistrate issued the warrant that who illegal- has Clearly, been supporting supply did whether evidence documentation ques- separate Along way ly is a different and necessary probable cause. from rule whether an question clear that tion Court made apply. applies, rule should whether terms, it is shown evidence. question express whenever quite from the distinct of’ in violation law. Estab- oc- “obtained of the Fourth Amendment violation depend upon lishing Indeed, the Court characterized curred. sovereigns exclude showing “concededly Leon un- that other search at issue in as woefully Id., The dissenters are n. the evidence. constitutional.” is “ob- that evidence 82 L.Ed.2d mistaken to believe n. at 693- only if law say: of’ the violation 13. The went on to tained n. Fourth Amendment rule would language whether the of Article 38.23 “ac- operate to exclude it. only opinion commodates” them. The to con- analysis

duct an such thus far is Garcia. Stare Decisis For the reasons opinion, stated in that herein, additional reasons set out we now Finally, the dissenters assert their hold that Article contemplate 38.23 does not decisis, view is also dictated citing stare exception. The court State, (Tex.Cr. Vanderbilt v. 629 S.W.2d 709 appeals did not err in this сause to fail to App.1981), State, and Bell v. 724 S.W.2d 780 apply one. (Tex.Cr.App.1986), if controlling were precedents. Dissenting op. at 279-280. Nei truly ther is. ap Vanderbilt this Court Harm? parently decided granted petition We also the State’s was an to the in order to review the contention that rule; Article 38.23 was never mentioned.3 appeals failing court of erred to conduct an None of the Texas cases Vanderbilt cites as analysis for ruling harm after the trial court having applied principle of inevitable dis granted appellant’s should have motion to covery specifically refers to Article let suppress evidence. Error in the admission alone analysis offers suppressed evidence that should have been Parker, parte Article 38.23. See Ex subject analysis to a harm under Tex. (Tex.Cr.App.1972); S.W.2d 585 Santiago v. 81(b)(2). R.App.Pro., Rule We have essen State, 444 (Tex.Cr.App.1969); S.W.2d 758 before, tially today held expressly Johnson v. 496 S.W.2d 72 (Tex.Cr.App reiterate, appellate direct court must .1973); McMahon v. 582 S.W.2d 786 81(b)(2) conduct a Rule analysis harm sua (Tex.Cr.App.1978); Noble v. sponte, without necessity prompting by (Tex.Cr.App.1972); State, S.W.2d 83 Pitts v. State, perceives type whenever it this 614 S.W.2d 142 (Tex.Cr.App.1981); Nicholas error in the record. See v. Weatherford State, 502 S.W.2d 169 (Tеx.Cr.App.1973). State, 12, 828 (Tex.Cr.App.1992). S.W.2d 13

All of these appear eases to have been decid ed on the basis of the federal Accordingly, judgment we vacate the Thus, rule. Vanderbilt and the cases it cites appeals the court of and remand the cause to hardly can be considered stare decisis for the that court for proceedings pursuant further view advanced today. the dissenters 81(b)(2). to Rule Bell,

In supra, this Court held that attenuation of taint applicable doctrine was BAIRD, Judge, concurring. to and similarly have held as to the State, (Tex. inevitable doctrine.4 In Garcia v. 829 796 S.W.2d However, like the today, dissenters would Cr.App.1992), plurality do held there was no merely Bell seems grafted to have discovery exception these inevitable to Tex.Code federal rule doctrines into Texas Crim.Proc.Ann. art. 38.23. I dissented then jurisprudence, criminal any analysis without join now I the Court. decided, later, 3. At the time Vanderbilt was the United appel in one of the untainted searches of yet adopted Court had not They lant’s residence. are therefore admissible inevitable exception doctrine as an discovery. under the rationale of inevitable the federal Williams, rule. See Nix v. State, 773, (Tex.Cr.App. Miller v. 667 S.W.2d 778 However, supra. the United States 1984), and cases cited therein." Id. at 793. Al Supreme Court had held that the federal exclu- though extensively Bell mentions Article 38.23 sionary applicable rule was to the states. See regard to the attenuation of taint Ohio, 643, 1684, Mapp v. 367 U.S. 81 S.Ct. 6 does not mention Article 38.23 at all in connec (1961). L.Ed.2d 1081 tion with the inevitable doctrine. Fur thermore, appears the Miller case to have been 4. In Bell this Court concluded that the evidence rule; based on the federal once during appellant's seized the first search of the again, Article 38.23 was not mentioned in the residence should have been excluded as the fruit illegal opinion, of an arrest. The Court stated and cases cited in Miller are the then “clearly these items would have been recovered same as the cases cited in Vanderbilt. Legislature. my pret by the separately to reasons for so the law enacted write state And, doing. jurists, obliged implement we are Boy expressed Legislature. will Garcia, prior our Subsequent and (Tex.Cr. State, 782, kin v. S.W.2d twice opinions today, Legislature con- App.1991). Because 38.23 does not ex art. Legislature vened. The 73rd convened its for pressly contain an 12, 1993, Regular January and Session discovery, are not authorized create we 31, adjourned May die 1993. 74th sine exception. such an Legislature Regular convened its Session on January 10, adjourned sine die comments, join I With these However, May in neither session opinion. Legislature 38.23. did amend art. State, 267, 271-272 In Mann v. McCORMICK, Judge, Presiding (Tex.Cr.App.1994), we ‘When the stated: concurring dissenting. meets,

Legislature particular after a statute disposition construed, chang dissent to judicially has been without statute, discoveiy presume legislature issue. issue ing that 38.23(a), should con this ease is whether intended the same construction VAC.C.P., “inev applied tinue to that statute.” The accommodates legal principle discovery” out Nix v. Marin followed the itable doctrine set Williams, years adopted eighty-six ago Lewis v. 467 U.S.

State, (1984). 58 Tex.Crim. 127 S.W. L.Ed.2d 377 This doctrine allows (1910). Accordingly, presume the we must admission of evidence the interpreta Legislature approved “wholly independent” Garcia by means discovered also, Gonzales v. tion art. 38.23.1 See violation. See constitutional (Tex.Cr.App.1991) 447-49, 104 818 S.W.2d (Baird, ‍​‌​​‌​​‌‌‌​‌​‌‌​​‌‌‌​​‌​​​​‌​​​​‌​​​‌‌​​‌​​‌​​​‌‍J., dissenting), Dillehey v. (Tex.Cr.App 829 S.W.2d (Tex.Cr.App.1991) .1992), plurality of this Court decided the (Baird, J., dissenting). discovery doctrine federal inevitable 38.23(a). granted We century ago, More than a Chief Justice Prosecuting Attorney’s petition dis Slayton of the Texas Court statеd: cretionary review reexamine duty ... It of to administer is the a court decision. written, not to the as it is and make law law; may however harsh a statute and majority’s analysis, As I understand the be, seem to or whatever seem to be 38.23(a) “plain” language Article does the omission, ... courts cannot make the dis- not federal inevitable accommodate not apply, cases to it does to which “as- covery that doctrine doctrine because assuming pertain without functions relationship the causal between sumes” a govern- legislative department of the Relying the evidence. on the ment. “obtained,” meaning of “ordinary” the word Cross, Turner 83 Tex. 18 S.W. v. language of majority “plain tells us the (1892). inquiry not for an provide does 38.23 legal acquisition potential [the] into Slayton’s remain true.

Chief Justice words that it appellate evidence once it been established It our courts inter- is role of plurality opin respond by Legislature does presumption supported fact that 1. point plurality opinion in last ions. case on is the Tex.Code Crim.Proc.Ann. art. was A (Tex.Cr. Legislature September effective 843 S.W.2d amended Grunsfeld response plurality made in App.1992), 1987. The amendment was of this Court held wherein 37.07(3)(a) Supreme opinion оf the States to the United art. did Crim.Proc.Ann. Tex.Code Leon, permit unadjudicated States in United of the admission of (1984). very legis 82 L.Ed.2d 677 non-capital cases. The next fenses in 37.07(3)(a) was amended. lative session art. Judge signifi- no there is McCormick states Sept. Leg., § 5.05 eff. Legislature's following Acts 73rd ch. Gar- cance inaction opinion. 1993. was a But cia because Garcia actually majority says inevit- ‘obtained in of law.” the federal violation the evi- doctrine considers presented claims the issue here Federal dence violation of the question statutory construc- “obtained” “purely but the admitted as Constitution evidence is tion,” and criticizes what characterize as “exception” to the federal adherence “uncritical to decisions Therefore, majority, according to the rule. States United Court” construe 38.23(a) language ex- “plain” of Article Texas statute. purposes Texas cludes the evidence for But, majority opinion we then learn the judiciary jurisprudence since the ultimately relies on federal constitutional power legislate “exceptions” have the decisions to conclude the inevitable federal 38.23(a).1 language “plain” of Article discovery doctrine the evidenсe assumes important ' It that Article remember was “obtained in violation of the law.” De- 38.23(a) rights.2 It is grants substantive spite criticism about “uncriti- provides for purely a remedial statute that cal adherence to the United decisions of the exclusion evidence that is “obtained Court,” their Here, asserts appellant violation of the law.” ultimately rely on constitution- mine federal Therefore, a Fourth Amendment violation. al for our of the critical decisions resolution remedy ap- whether the question of whether the federal plies depends resolution of the substan- discovery doctrine considers the evidence question tive of whether federal federal in violation “obtained of the law.” The res- discovery doctrine considers remedy olution whether in Article “obtained” in Fourth violation of the 38.23(a) applies purely question turns on prove when the Amendment State can of federal constitutional law. preponderance of the evidence that the discovered would have the evidence And, say the federal inevitable “wholly independent” constitu- does not consider evidence “ob- 447-48, tional violation. See 467 U.S. at tained” violation of Constitu- the Federal 104 S.Ct. at therefore, tion; “plain” of Arti- cle does not exclude evidence. Appellant argues, appar- Moreover, under the inevitable dis- ently agrees, the federal inevitable covery doctrine, the word “obtained” takes doctrine considers the evidence “obtained” entirely meaning on an different than its the Fourth violation of Amendment. “ordinary” So, majority meaning. errs to disagrees, argues is not rely “ordinary” meaning the word “obtained” violation of the Fourth Amend- in determining “obtained” ment in absence of a causal sufficient 38.23(a) accommodates illegali- the federal inevitable nexus the evidence and the between ty, applies doctrine. causal and this rule whether the majority “exception” put 1. The also relies on the sole son” is intended the same restrictions support position to Article in that persons of its upon private places that the law construction, "according statutory to the rules of This is not the state actors. case. Sometimes express exception, where a statute contains an private persons can obtain evidence in violation excepted.” must in terms all cases not See acting such as at the of the law when are 38.23(b), V.A.C.C.P., ("good excep Article faith personnel get law enforcement behest of tion”). might The reader find it ironic that this See, State, e.g., v. confession. Alvarado legislative "exception" to Article 38.23 came State, 1993); (Tex.Cr.App. S.W.2d 17 Cates v. interpreta as a result about of another erroneous (Tex.Cr.App.1989); S.W.2d 170 Paez v. Garcia, by of tion Article 38.23 this See Court. Therefore, (Tex.Cr.App.1984). a de S.W.2d 34 J., (Miller, concurring); at 829 S.W.2d 801-02 presents nothing for review when he fendant (Tex.Cr. Green 615 S.W.2d 711-13 complains private person that a evi (McCormick, J., App.1980) dissenting). 38.23(a), or that dence in violation of Article certain evidence was obtained in violation of 38.23(a), example, part, 2. For Article relevant in However, 38.23(a). species Article this is the of provides that no evidence an "obtained officer statutory majority person" construction the to do other in law shall be seems or violation of the argue per- phrase Some "or admitted. other in this case. “attenuation,”3 really in break in form of issue this case involves a comes source,” straight-forward application or “independent “inevitable discov- of Johnson. Johnson, ery.” argues The State also that since the seven members this Court held applicable attenuation and inevitablе doc- federal attenuation doctrine Johnson, 38.23(a). specific trines at are variations on a common Article 871 S.W.2d Now, later, essentially years barely four of theme and share the same ratio- two nale,6 it would no sense to hold these seven members decline to follow John- make Article 38.23(a) incorporates the son. attenuation doc-

trine, but not the inevitable doc- However, says majority per- “makes it trine. say fect accommo- sense doctrine, argument dates not is consistent this the attenuation inevit- discovery.” They explain nothing recent in Court’s decision Johnson “regarding the (Tex.Cr.App.1994), in Johnson attenuation of 749-51 plain which held the federal attenuation doctrine is taint doctrine alters the fact that 38.23(a). vote, applicable provide does By a 7-1 of Article 38.23 not for legal acquisition inquiry potential a clear this Court reached this into the by determining decision that the federal at of evidence once it has been established that actually in not ‘obtained violation law.” tenuation doctrine does consider evi So, according majority, dence “obtained” in violation of the law be to the Johnson proposition cause read for the that Arti- that doctrine considers evidence should be sufficiently for attenuated from the taint cle does not call a determination Johnson, police illegality. of whether the evidence was “obtained in See (the attenuation doctrine is a method for violation of the law” once has been estab- “ determining actually in the evidence was ‘ob lished the evidence was “obtained whether ” law). of the I do tained’ violation of the violation law.” not read Johnson legal supporting kind of circular rea- Similarly, under the federal inevitable thing soning. The critical about Johnson discovery doctrine considers the evidence remedy determining was that whether “sufficiently attenuated” from the taint 38.23(a) applied, relied on Johnson police illegality, prove if the can law to conclude the fed- federal constitutional inevitably evidence would have been discov- eral does not consider attenuation doctrine wholly independent ered “obtained violation evidence Nix, 467 constitutional violation. See U.S. at (the Johnson, law.” 871 S.W.2d at (when challenged attenuation doctrine is method deter- would have been discov- “ mining the evidence was ‘ob- ered “without error or reference ” law). tained’ violation misconduct, there is no nexus sufficient ”) attempts distinguish provide (emphasis supplied). a taint Therefore, explaining if the its burden of this case from Johnson State meets evidence, proof by preponderance of under the attenuation doctrine the causal doctrine, just and the ac- connection between federal inevitable quisition does is broken because like federal attenuation beyond ordinary point is a which the consider the evidence “obtained violation “there Johnson, just understanding ap- 871 S.W.2d at ‘obtained’ the law.” See However, ply.” the attenuation and inev- 750-51. Illinois, 590, 601-02, that U.S. 6.The rationale of these doctrines is admit- 3. 422 95 Brown ("atten- (1975) ting proper S.Ct. 45 L.Ed.2d 416 balance be- the evidence strikes doctrine). uation” society’s deterring police mis- tween interest having juries public and the interest in conduct 441-43, Nix, S.Ct. at 4. See 467 U.S. at 104 2508 probative all evidence of a crime. See receive doctrine). ("independent source" Nix, 443-45, 2509; at 467 U.S. at 104 S.Ct. Brown, 2254. 422 U.S. at 95 S.Ct. at 447-49, Nix, at 5. U.S. discovery” 104 S.Ct. 2511 467 at ("inevitable doctrine).

277 discovery majority justifies holding with its begin itable doctrines the The also “ premise challenged creating that is ‘in the evidence distinction between some kind of illegal governmen- some of product sense’ the “exception call an to the federal what Nix, activity.” tal 104 See 467 U.S. at exclusionary “exception rule” and an to core But, (emphasis original). S.Ct. at 2509 the prohibitions of the Fourth Amendment.” United Court has declined Garda, 829 S.W.2d at 798. generally See adopt a render “but for” rule “that would majority says federal attenuation the any light inadmissible evidence came falls latter while under the the fed- began through a chain causation of discovery doctrine eral inevitable falls under Leon, illegal arrest.” United States v. the the former. As understand 897, 919, U.S. 104 S.Ct. says if analysis, federal law the evidence (1984); Brown, L.Ed.2d see also “exception as an to the federal admissible 601-03, at 95 S.Ct. 2261. Under the atten- rule,” “plain” language then the doctrine, uation if evidence is admissible of Article excludes evidence. prove the State can “obtained” evi- But, says if federal law the evidence is ad- primary that “purge dence “exception prohibitions as an missible core Brown, taint.” See U.S. at Amendment,” “plain” of Fourth then the This, necessarily some ac- of language Article does not exclude causation, tual break in chain of is what is more or what the evidence. less breaks the causal connection between the says. From all this flows the illegality acquisition of the evidence majority’s holding in this case. under the attenuation doctrine. id. See support Leon in relies on Similarly, ability prove the State’s “exception to federal rule” inevitably would have discovered the evi- .“exception prohibitions vs. core by legal dence means is what breaks Amendment” ma- Fourth distinction.7 The causal illegality connection between the jority supports proposition claims Leon acquisition evidence under illegally has been ob- “whether evidence federal doctrine. See separate question tained is a different and

Nix, 447-49, 467 U.S. at at 2511 S.Ct. [the federal] from whether rule (when challenged apply.” then claims would have been discovered “without refer- supports proposition that Leon the feder- misconduct, ence to the error or there al inevitable doctrine assumes taint”) is no provide nexus sufficient violation of the “obtained (emphasis supplied). Under this exactly This is not correct. law.” What whether the is the eause-in-faet or a really says is: Leon acquisition but-for cause of the the evi- Nix, simply dence is irrelevant. See ap- sanction “Whether the Brown, 447-49, 2511; U.S. at 104 S.Ct. at ease, propriately imposed particular in a 601-03, 422 U.S. at 95 S.Ct. at If the 2261. сlear, sepa- is ‘an our decisions make issue proof by prepon- meets its burden question whether the Fourth rate from evidence, derance of the then law rights party seeking to Amendment evidence, if, fact, treats police, by police the rule violated invoke were independent “wholly discovered the evidence Leon, conduct.’” U.S. at constitutional violation.” (emphasis supplied). at 3412 S.Ct. ‍​‌​​‌​​‌‌‌​‌​‌‌​​‌‌‌​​‌​​​​‌​​​​‌​​​‌‌​​‌​​‌​​​‌‍Therefore, U.S. at The federal attenuation inevitable dis- the attenuation and inevitable doc- covery trines call doctrines assume the existence for the same treatment under 38.23(a), violation. When the feder- and Johnson should control a constitutional disposition question applied al presented evidence, this ease. admission of no one allow the "good exception” 7. Leon addressed the faith not involved in case. rule, which, course, exclusionary federal of 278 designed to principles it is

claiming Fourth Amendment the constitutional a defendant’s But, protect). rights fed- have not been violated. discovery doc- eral attenuation and inevitable Also, understanding my how the federal legally break causal

trines connection exclusionary operates provides is that rule violation and the between the constitutional remedy excluding that is “ob a evidence acquisition evidence. of the tained” violation Constitution. See Ohio, 672-76, 81 Mapp v. 367 U.S. S.Ct. evi- Leon sets out various situations where (1961) (Har 1684, 1701-08, 6 L.Ed.2d 1081 Fourth dence “obtained in violation lan, J., If the is admis dissenting). “exception” is admissible as Amendment” discovery under federal inevitable sible Leon, exclusionary rule. to the federal See to the fed any “exception” or other doctrine at How- 468 at 104 3414-16. U.S. S.Ct. rule, exclusionary then the evidence has eral ever, in Leon Supreme it is clear the Court of the not been “obtained” violation Con doctrine, the federal attenuation considered may a though there have been con stitution discovery like the federal inevitable Leon, 468 at violation. See U.S. stitutional causal break the connection between 910-11, 104 S.Ct. acquisition police illegality and the Leon, Nix, reading A and Broum is fair Nix, id,.; at 467 U.S. evidence. See see Supreme “exceptions” the the various (when 447-48, 2511 the chal- 104 S.Ct. at exclusionary has created to federal Court lenged would have been rule, and inevitable especially the attenuation police discovered “without reference to discovery the causal con- “exceptions,” break misconduct, no error there is nexus or suffi- any illegality acqui- nection between taint”) sup- provide (emphasis cient policy This is done sition evidence. Therefore, plied). really no differ- makes striking proper balance reasons such as ence whether federal inevitable deterring police society’s interest in between “exception to as an doctrine characterized public having interest misconduct and rule” or as an “ex- federal juries probative evidence about a receive all prohibitions ception of the Fourth to core 443^5, Nix, 467 at 104 crime. See U.S. because, it is no matter how Amendment” has Legislature also invit- at 2509. The S.Ct. characterized, discov- the federal inevitable to consider these kinds ed this Court ery does not consider the evidence doctrine construing provision of the factors when Leon, the law.” “obtained violation of See Criminal Procedure. See Code 3414-15; at 468 U.S. at S.Ct. VJLC.C.P.; 1.26, V.A.C.C.P. 2511; 447-48, at 104 S.Ct. at U.S. hold foregoing, I would it is Based on the 602-03, Brown, at U.S. S.Ct. unnecessary “judicially legislate” fed- as an “ex- eral inevitable Moreover, be- distinction 38.23(a), ception” to Article because “exception tween to the federal language Article accommo- “plain” “exception prohibitions of rule” to core vs. doctrine. dates is a distinction with the Fourth Amendment” significance. The Court legal Finally, principles stare decisis alone that its various constitutional made clear require this hold taken account in this into decisions area doc accommodates the inevitable relating to the acknowledges considerations even trine. principles it is part rule the constitutional doctrine has been Leon, designed protect. 468 U.S. at jurisprudence See since least of this State’s (the 910-11, perception at 3414 and after the 1969—before Bell v. underlying various constitutional decisions— Nix. decided denied, (Tex.Cr.App.), mis- cert. that the connection between crime be suffi- 93 L.Ed.2d conduct and evidence of (1987); permit Dickey use of the 716 S.W.2d ciently attenuated to (Tex.Cr.App.1986); Wicker product of consider- evidence at trial —is (Tex.Cr.App.), cert. de- 141-42 relating rule ations

279 nied, appli- 469 105 L.Ed.2d Bell held the attenuation doctrine was U.S. S.Ct. 88 (1984); State, “may 204 Vanderbilt 629 S.W.2d simi- cable to Article have denied, (Tex.Cr.App.1981), discovery 722-28 cert. larly as to doc- held the inevitable L.Ed.2d 169 majority needs to read Bell trine.” (Tex. State, (1982); Pitts v. S.W.2d 142 Bell, again. majority In a of this Court was State, Cr.App.1981); McMahon v. addressing when it Article 38.23 held the (Tex.Cr.App.1978); S.W.2d 786 Nicholas v. was under the inevitable admissible State, (Tex.Cr.App.1973); Bell, at discovery doctrine. See (Tex.Cr.App. Johnson v. 496 S.W.2d 72 However, majority refuses (Tex.Cr. 1973); Noble S.W.2d 83 “analysis Bell it contains no follow because App.1972); Santiago v. 444 S.W.2d 758 language Article 38.23 whether the ‘accom- ” Garcia, (Tex.Cr.App.1969); see also discovery modates’ the inevitable doctrine. (in (Miller, J., concurring) S.W.2d at 801-03 following prior this Court’s Instead ma- discovery applicable evitable doctrine jority holdings, majority adopt decides to long this State before the four-judge plurality a decision Garcia be- Nix). decided “only is opinion cause it conduct” an majority opinions These are Court’s this analysis whether Article accom- applied discovery which have modates the inevitable doctrine. majority agrees If doctrine. of this Court following “analysis” is the substantive law, principle on a then that constitutes from that Garcia: “holding” of this Court. See 40 Dix & R. G. Dawson, Criminal Practice and Procedure 38.23(a) ], face, absolutely “[Article (Texas 1995). Principles 14-15 Practice requires the exclusion of all evidence require stare decisis this Court to follow its the Fourth seized violation of Amend- majority hоldings. earlier This is so basic ment, and because the federal inevitable requires authority. that it citation to exception not an Bell, prohibitions of the Fourth Amend- exception majority

With the core ment, majority prior declares that this Court’s to the federal hardly holdings rule, “can be considered stare de- the mandate of article they “appear cisis” because to have been to exclude obtained in decided on the basis federal exclusion- violation of the United States Constitution ary My response is, rule.” what.” this “so not, by necessary implication, even point majority is a of this has require ques- a decision about whether held on inevit- numerous occasions that the evidence would have tioned been juris- part Garcia, anyway.” discovered 829 S.W.2d prudence of State. should This Court continue to holdings follow these and leave is more or extent of less the Garcia’s any changes legisla- to Article 38.23 to the “analysis.” Cases such Bell and as Vander- Garcia, ture. See 802 fh2 S.W.2d at “analysis” at least much as bilt contain (Miller, (once J., concurring) a court has importantly, More this Court decided this. statute, interpreted subsequent legislative after com- Johnson Garcia and approval inaction amounts of that court’s pletely inconsistent this Court’s more interpretation). majority opinion in Johnson. recent addition, In distinction be- “exception tween to the federal addition, this Court’s earlier ma- “exception prohibitions rule” vs. to core enough jority opinions “analy- do not contain meaningless the Fourth is a Amendment” majority in this case should sis” to suit the So, really distinction. makes no difference point that the irrelevant. The might whether these cases have been decided part doctrine has been a of this on the basis of the federal rule. jurisprudence least 1969. State’s since And, rely people on this. It This leaves Bell. Even the come require poorly-reasoned acknowledge Court in more than of this plurality depart Legislature to from did act in the situa- decision this Court’s Grunsfeld jurisprudence. well-settled Judge analogy tion. Baird’s to Grunsfeld inapposite. is if point this case is The brings Judge concurring us to Baird’s presume anything to from the this Court is Judge position opinion. Baird’s is must “we act, Legislature’s Judge Baird failure to as presume Legislature approved of Gar should, more claims we then makes sense However, interpretation cia’s of art. 38.23.” presume legislative approval of this to plurality opinion particular a decides holdings majority dating numerous Court’s dispute prece- before the Court and is no single to back at least 1969 instead of State, Vargas dential value. v. See Judge plurality opinion. respect, Baird With (Tex.Cr.App.1992). yet principled has to advance a reason for Garcia, four-judge In plurality decided deviating position from he took Gar- doctrine does federal cia. 38.23(a). However, ap- to parently four-judge plurality another in Gar- majority appellate “a holds direct White, Miller, Campbell Judges and 81(b)(2) cia— Rule court must conduct a harm Baird —would have decided the inev- analysis sponte, necessity sua without the applicable Arti- itable to like prompting by the cases this. State” 38.23(a). So, question cle becomes which majority’s I agree with the ultimate While plurality position pre- in Garcia are we to issue, disagree disposition of this must with Legislature approved? Legislative sume the “analysis,” it is. their such as bearing after has ho inaction Garcia on State, majority v. cites Weatherford case, question presented by this because (Tex.Cr.App.1992), sup 828 S.W.2d majority of this Court in Garcia did not However, holding. port their Weatherford agree the federal presented nothing has to do the issue 38.23(a). inapplicable doctrine was analysis necessary here. “Much more be Moreover, given this numerous ma- Court’s say” confidently that an fore Court jority holdings years Legis- over appellate sponte court sua intermediate must them, Judge lature’s failure to overturn 81(b)(2) analysis in conduct a Rule harm position that Baird’s current this Court this, especially cases like since the legislative approval presume of a should now disposing discovery” is “inevitable single plurality opinion in untena- just trashing twenty-five sue finished ble. jurisprudence years this Court’s because Citing v. 843 S.W.2d Grunsfeld enough “analysis.” contain See Au Judge (Tex.Cr.App.1992), Baird claims J., (Clinton, tran Legislature respond opin “does concurring). However, majority ions.” of this agree legislative did that the 1989 Finally, ar- appellant’s brief advances two Grunsfeld 37.07, V.A.C.C.P.,8 amendments guments, supported by citation to various prohibited un'adjudicated the admission of ex Court, claiming opinions of this the Court part as of a traneous offenses defendant’s Appeals sponte did not err to decline to sua “prior Grunsfeld, criminal record.” 81(b)(2) analysis. Rule harm conduct a And, Judge cor S.W.2d at 522-48. Baird First, appellant argues that this since rectly out, points Legislature acted 81(b)(2) placеs has held Rule the burden on amend Article 37.07 to reverse this Court’s prove contribute the State to an error did not majority holding in Grunsfeld. punishment, to the verdict or then State timely in a event, has the burden raise issue Judge point is we Baird’s Second, argues the appellant manner. presume legislative approval plu- of a trying argue in the rality an issue it waived Legisla- Garcia because guise Obviously, Appeals of a ture to act on it. the Court “under has failed (Tex.Cr.App. Murphy of a 777 S.W.2d 44 8. These amendments came about as result 1989) prior interpretation reh’g). (op. erroneous of Article 37.07 523; Grunsfeld, 843 S.W.2d at Court. See analysis.’” ‘harmless error was in give paint the area to estimate on a opinion wholly “analyze” job Flamingo fails to these con- admitted he had “analysis” appellant tentions. The lack of Hart driver’s license. ordered 81(b)(2) get on the Rule issue creates a risk that out of the vehicle noticed two small twenty-five years jewelry now this from Court could boxes on seat next to where give decline appellant sitting. opened stare decisis effect to that had Hart been part of addressing rings, boxes and found five one of which had 81(b)(2) engraved Rule appel- issue because does not con- a namе it which on was tain enough “analysis.” jewelry Appellant got lant’s. claimed he previous day at a flea in market Roa- comments, join only I part With these noke. of judgment remanding the Court’s the case appellant driving Hart for arrested without to the Court of Appeals conduct a Rule 81(b)(2) appellant a license and read his analysis. harm I Miranda every- dissent to warnings. thing Hart summoned a wrecker to tow else.

away jewelry. the truck and inventoried the Appellant custody was from KELLER, JJ„ released join WHITE and afternoon. concurring dissenting opinion. and Appellant subsequently by was convicted a MANSFIELD, Judge, dissenting. jury burglary jury of aof habitation. The Because I Texas believe Code of Criminal also paragraphs ‍​‌​​‌​​‌‌‌​‌​‌‌​​‌‌‌​​‌​​​​‌​​​​‌​​​‌‌​​‌​​‌​​​‌‍found two enhancement Procedure Article 38.28 not bar the use jury be punishment true. The assessed in Texas of the United States ninety years confinement in the Texas De Court’s inevitable doctrine an- partment of Criminal Justice —Institutional Williams, nounced in Nix v. 467 U.S. Appeals Division. The Court of re Second (1984), 81 L.Ed.2d 377 appellant’s versed conviction and remanded respectfully dissent. Daugherty cause for a new trial.1 Appellant (Tex.App was observed Southlake Po- . —Fort 1994). subsequently lice Worth This Court morning Officer Hart Septem- on the granted ber neighborhood 1989 in the State’s the State Prosecut that was ing having problems Attorney’s petitions discretionary burglaries. re As Officer approached truck, Specifically, granted Hart view. appellant’s the State appellant Prosecuting Attorney’s petition proceeded up ducked. Hart for discre the street and tionary parked. determine if He review to the federal appellant getting then observed truck, applicable out of un walking up his nearby to a is, house, law, der Texas knocking Texas Code of on the door and Crimi putting then 38.23, nal his hand on Procedure Article the Texas Appellant the door knob. statu then tory exclusionary appeals, went around rule. The court of to the back of the house out of relying sight. later, plurality opinion on this Hart’s A Court’s appellant short time (Tex.Crim. house, Garcia v. 829 S.W.2d 796 returned to the front looked around, App.1992), got truck, held there was no into inevitable dis his and drove off. covery exception to Article 38.23. pulled appellant

Hart then over a few Texas Code of Criminal Procedure Article away. approached blocks appellant When he provides: proof ask for of insurance and his driver’s license, (a) prybar Hart sticking observed out or No evidence obtained an officer from under the driver’s seat as person any provision well as screw other in violation of pair gloves drivers and a on the floor in the Constitution or laws of the State Texas, Appellant front of the front seat. stated he or of or the Constitution laws of the Furthermore, appeals preceded The court found the trial court erred the arrest. the court admitting jewelry evidence of the appeals other relying court on found the trial erred in appellant, holding items seized from the search justify the inevitable doctrine to question justified could as a valid Garcia, citing question, supra. search in search incident to arrest since the an search America, Garrison, United shall be admit- 480 U.S. (1987). against good exception accused

ted L.Ed.2d 72 faith trial of criminal case ... rule has also found been (b) apply to warrantless search conducted in provisions It is an (a) pursuant good faith to a statute found later of this that the evi- Subsection excep good faith by a to be unconstitutional. The dence was obtained law enforcement acting objective found to to a good officer faith reli- tion search incident to аn arrest based on a ance warrant issued neutral seizure magistrate probable erroneously cause. computer based on error which indicated outstanding officer there was if To determine Illi against arrest the defendant. warrant Texas, given doctrine exists Krull, 1160, 340, 107 nois v. 480 S.Ct. 94 U.S. necessary analyze it is both the federal — Evans, (1987); L.Ed.2d v. 364 Arizona and Texas Constitutions and Article 38.23. -, 1185, 115 131 34 U.S. S.Ct. L.Ed.2d (1995). illegally in viola Evidence Discovery I. The Inevitable Doctrine is may Fourth be used tion Amendment Exception Well-Established As an testify. impeach defendant should he Exclusionary the Federal Rule. Illinois, 307, 110 James v. 493 U.S. S.Ct. right people “The to be secure (1990). 107 676 L.Ed.2d effects, persons, papers their houses and seizures, against and unreasonable searches Supreme and other federal Court violated, shall not be and no shall Warrants exception recognized courts have another issue, cause, probable supported exclusionary inevitable discov- rule —the affirmation, particularly Oath or and describ- ery doctrine. searched, persons ing place to be 431, 104 Williams, v. 467 U.S. S.Ct. Nix Const., things or U.S. Amend- to be seized.” (1984), Supreme 377 L.Ed.2d IV. ment Court, case, explained in a the ratio murder give As a means to effect to the Fourth exclusionary rule: nale behind prohibition Amendment’s of unreasonable implementing It clear that the cases seizures, Court searches exclusionary “begin rule with the developed the rule. v. Weeks premise challenged that evidence is in States, United U.S. 34 S.Ct. illegal product govern- some sense the (1914). L.Ed. 652 Evidence obtained as Crews, activity.” ment United States of a seizure in result warrantless search and 463, 471, 1244, 1250 [63 100 S.Ct. U.S. violation a defendant’s Fourth Amendment (1980). course, Of this does 537] L.Ed.2d by rights could not be authorities inquiry. prosecution If the not end the against him into evidence at trial. admitted by preponderance can establish statutory There no federal ultimately that information or evidence comparable to Article rule 38.23. exclu- by inevitably discovered would been sionary applicable rule was made volunteers’ lawful means —here Mapp states and to local entities the deterrence rationale has search —then Ohio, 6 L.Ed.2d U.S. 81 S.Ct. that the should be so little basis (1961). reject logic, Anything less would received. has, time, Court for some experience and common sense. recognized “good faith” a so-called consistently ad- The core rationale to the rule. The extending the ex- this for bar of evidence ob- vanced rule admission clusionary that is the acting in rule to evidence police officers reasonable tained police has been by a fruit of unlawful conduct on a search warrant issued reliance socially admittedly in- drastic and later this magistrate but found be neutral costly needed to deter course is probable cause. United valid lack Leon, and statu- from of constitutional violations States v. accepted (1984). tory protections. This Maryland v. 82 L.Ed.2d 677 Discovery argument way to ensure such II. The Inevitable Doctrine Contrary protections is to Texas exclude evidence seized Is Not to the Con- of such or as a result violations notwithstand- stitution to Article high Recognized by ing letting persons cost of Be obvi- Should ously guilty go unpunished for their Court. rationale, prosecution crimes. On Constitution, I, The Texas Section put position is not to in a better than it provides: been if

would have had tran- spired. per- shall people “The be secure their Nix, 441-45, 104 467 U.S. 2508-09. sons, houses, papers possessions, from searches, all seizures or and no unreasonable physical

“Exclusion of any place, or to warrant to search seize nothing be discovered adds to ei- person thing, shall or issue without describ- integrity ther the or fairness of a criminal be, ing near nor them as without triаl.” U.S. at S.Ct. at 2510.2,3 cause, probable supported oath or affir- I, mation.” Article Section 9 the Texas absurdity The Court demonstrates the essentially Constitution identical to the excluding evidence that would have been in- Fourth Amendment to the United States evitably by legal merely discovered Constitution. by discovery because its initial illicit effect, In prosecution methods. the would be generally has This Court followed United position police left in a worse had no error or Supreme Court Fourth Amendment misconduct occurred the I, jurisprudence interpreting Article Sec interpreted rule be to bar forever use of the free, however, interpret tion 9. We are to question merely evidence in because its ini- I, greater Article Section to find it offers discovery tial was in violation the exclu- protection against unreasonable searches and By sionary permitting rule. the to State Heit counterpart. seizures than its federal introduce evidence that would have been ob- State, man v. (Tex.Crim.App. 815 S.W.2d 681 by tained licit means —absent 1991). date, however, majority To of this police misconduct —the and the defen- State Autran In v. Court has to do declined so. placed position dant are the same as if no (Tex.Crim.App.1994) police place: misconduct had ever taken the (plurality opinion), four members of this gained no advantage and the defen- find, concerning in a Court did case an inven prejudice.4 dant has suffered no tory search closed found in the containers clear, law, vehicle, I, It is under federal trunk constitutional of a 9 would Section discovery the require inevitable the well-es- a warrant to search containers generally tablished. whereas the Fourth Amendment Nix, 2. respectfully disagree obtained information as to 2. I must footnote body discovery location victim's from the with defen- questioning dant as the result of one found to be in doctrine’s entire foundation is sentence in right his violation of Sixth Nix. Amendment coun- Supreme sel. The Court found body, photos clothing Supreme articles 4.We also Court has held note evi- autopsy pursuant results of the were admissible at the dence found to execution of a valid provided retrial defendant’s under the inevitable search warrant admissible infor- (The Supreme by wholly doctrine. Iowa Court found mation used obtain the warrant is during preponderance body the evidence unconnected to information uncovered earlier, search, i.e., "independent would have been discovered within a short time invalid States, essentially Segura 3380, the same as it was condition actual- source" doctrine. v. United (1984); ly illegally found S.Ct. absent information obtained 82 L.Ed.2d 599 defendant.) States, Murray from the v. United 487 U.S. Nix, (1988) (citing supra, L.Ed.2d 2535). majority” 3. The notes that Court the "vast of all 487 U.S. at 108 S.Ct. at The inde- courts, federal, recognize pendent both state and an inev- to the inevit- source doctrine similar Nix, discovery exception itable doctrine. 467 U.S. at 443- rule. 467 U.S. at footnote S.Ct. at exceptions Ac- rule permits inventory searches. as warrantless exigent cordingly, emergency I would hold that or circumstances doctrine application ‍​‌​​‌​​‌‌‌​‌​‌‌​​‌‌‌​​‌​​​​‌​​​​‌​​​‌‌​​‌​​‌​​​‌‍pres- thereby doctrine’s of taint attenuation I, by holdings casting is not barred ent case Section doubt our Johnson (Tex.Crim.App.1994) of the Texas Constitution. 871 S.W.2d 744 (Tex.Crim. Bass 732 S.W.2d 632 (or rather, predecessor, Article 38.23 words, In other Court App.1987). would 727a) seventy originally Art. was enacted interpreting Article 38.23 so be barred from years ago, years ten after evolving Supreme into take account Weeks, holding in creat- supra, Court’s which jurisprudence respect the fed Noting exclusionary rule. ed the federal Legisla I submit the eral rule. govern- applied Weeks to the federal did intend ture this.5 ment, Legis- is reasonable to conclude the in- enactment of Article 38.23 was lature’s agree that if this Court found the would tended to extend to the citizens Texas to be invalid against protection same unreasonable I, use Section then its under by gov- and seizures state and local searches precluded 38.23. The under Article given had been ernmental entities this, however. I also hold against United States majority’s point that ex- understand the Fourth Amendment violations committed clusionary rule admission of evidence bars government. Legislature law, in violation of state or federal obtained 38.23(b) incor- subsequently added Article exceptions which do allow ad- but there are porate “good exception” so that evi- faith though it was mission of such evidence (cid:127)even ¡aw. acting good dence obtained an officer Yet the in violation by a upon a warrant faith reliance issued my ignores majority, opinion, the most magistrate probable cause neutral based on discovery aspect significant of the inevitable to the exclu- would not be inadmissible due have been doctrine: while sionary rule as a result a defect found initially illegally, it is admissible subsequent to the warrant its execution. show, by preponder- if can evidence, that it been anсe would opin majority, relying on our legal means. It inevitably obtained (Tex. ion S.W.2d 796 Garcia my significant aspect, opinion, holds, effect, Crim.App.1992), that because discovery inevitable plain language does not men Article 38.23’s incorporation under Article preclude its then, doctrine, tion the inevitable 38.23.6 definition, I precluded. its use Texas is agree. does not offer do not respectfully dissent. history any legislative or other evidence support position its legislative intent any to be

that Article 38.23 was intended federal, judge-

thing more or less than its Indeed, logi equivalent.

made carried conclusion, majority’s holding

cal would 38.23, of Article such

preclude, as violative Leg- jewelry had boxes occurred concurring opinion If search 5. The notes had arrest, incorporate the it have been valid as islature intended after the has had doctrine into Article concededly valid to a arrest. search incident opportunities so. since Garcia to do at least two application of doc- First, plurality opinion with is a a limited evidence of the would allow admission into trine value; hence, legislative precedential action prior search which occurred results of the premature, Legislature’s failure would be have been dis- arrest because would Second, significance. to act has little legal, post-arrest pursuant search. covered preclude the find 38.23 not to certainly Legislature negate as to our could amend Article 38.23 so finding.

Case Details

Case Name: State v. Daugherty

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 26, 1996

Citation: 931 S.W.2d 268

Docket Number: 0924-94

Court Abbreviation: Tex. Crim. App.