Brick v. State

• Decision Date: 21 October 1987
• Docket Number: No. 207-86,207-86
• Citation: 738 S.W.2d 676
• Parties: Donald Ray BRICK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 676

738 S.W.2d 676

Donald Ray BRICK, Appellant, v. The STATE of Texas, Appellee.

No. 207-86.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 21, 1987.

Ken J. McLean, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., & Calvin A. Hartmann, Lyn McClellan & Jaime Esparza, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Following his plea of guilty before the court appellant was convicted of the second degree felony offense of possession of marihuana in a quantity of 50 pounds or less but more than 5 pounds. Article 4476-15, § 4.051(b)(4), V.A.C.S. His punishment was assessed at ten years, probated, and a fine of $5,000.00. Along the way the trial court overruled appellant's motion to suppress the marihuana, which appellant contended was discovered as a result of his illegal arrest and the subsequent warrantless search of his house.

On appeal to the Fourteenth Court of Appeals appellant argued that the arresting officers lacked probable cause either to arrest him or to search his house, that his arrest was unlawful in that it failed to meet any of the exceptions to warrantless arrest enumerated in Chapter 14, V.A.C.C.P., and that any consent to the warrantless search of his house was obtained through an exploitation of his illegal arrest, and hence inadmissible under Article 38.23, V.A.C.C.P. The court of appeals affirmed the conviction in an unpublished opinion. Brick v. State, No. B14-84-871CR (Tex.App.--Houston [14th], delivered December 26, 1985). Finding simply that the consent which had given rise to the warrantless search of his house had been given "voluntarily" by appellant following his arrest, the court of appeals declined to address the legality of that arrest, either from the standpoint of whether the arresting officers had probable cause to effect it, or of whether they reasonably believed appellant was "about to escape," Article 14.04, V.A.C.C.P., such that an arrest warrant was not required. In his petition for discretionary review appellant assails the failure of the court of appeals to address the legality of his arrest, contending that the arrest was in fact unlawful, and that this initial illegality fatally tainted his consent to search the house. We granted appellant's petition to examine this contention. Tex.R.App.Pro., Rule 200(c)(3) and (6).

I.

The facts of the case, viewed in the light most favorable to the trial court's disposition of the motion to suppress, are fairly straightforward. Sometime during or prior to the evening of May 7th, 1984, Officer W.L. Kendrick of the narcotics division of the Houston Police Department received information from a confidential informant that the residents of 9619 Orangevale--appellant and two roommates whose names the informant did not know--were harboring "some cocaine" in their home. The informant, who had supplied correct information on two prior occasions, described the exterior composition of the house and its interior layout, and predicted that a maroon Corvette bearing a certain license plate number would be found there. This car, he said, belonged to appellant. At about 7:00 p.m. Kendrick and Officers Duke and Eslab proceeded to the address given and found a house matching the informant's exterior description and a maroon Corvette bearing the foretold license plate number. The car was found to be registered in appellant's name. On the basis of this corroboration Kendrick returned to the station "to type the search warrant."

Between 8:00 and 9:00 p.m. the informant again contacted Kendrick and told him appellant "was going to leave the residence and probably not return for a day or two." Shortly thereafter Eslab and Duke, maintaining surveillance on the house, informed Kendrick that a person "believed to be" appellant was getting into the Corvette with a woman. Kendrick had "finished the warrant" by this time, but had not heard from the District Attorney's office as to what judge was on call to sign it. He advised Eslab and Duke to arrest appellant.

Eslab and Duke followed appellant and his companion to a nearby convenience store and arrested them both as they came out. Appellant was immediately handcuffed, after which Duke informed him that the officers "were in the process of having a narcotics warrant drawn up for his residence." Appellant indicated "he would cooperate in any way[,]" and he agreed to sign a consent form. ¹ Still waiting for the District Attorney's office to call, Kendrick was notified of this turn of events. Consequently he "disregarded the search warrant" and drove out to the convenience store. Upon Kendrick's arrival, appellant was given a consent form which he read and indicated he understood. He was then uncuffed long enough to sign and date it. ² Subsequently appellant's house was searched. Approximately ten pounds of marihuana, three and a half grams of cocaine and $26,000.00 in cash were found in his bedroom.

At the pretrial hearing on the motion to suppress appellant virtually conceded that consent was given voluntarily. During the prosecutor's redirect examination of Kendrick, defense counsel interjected:

"... [the consent form] was voluntarily signed by [appellant]. My dispute will be with the legality of the arrest."

True to his word, counsel argued in his summation to the trial court:

"... I'm certainly aware that consent obtained by police officers to search a residence is not involuntary, because there is conversation regarding that if you don't sign the consent, we can get a search warrant, anyway, and would cite the Court that authority. However, I don't think it's the issue in the case."

Having thus again practically admitted that appellant's consent was voluntary, counsel proceeded to argue that irrespective of the voluntariness of the consent, it was nevertheless tainted because "secured through the exploitation of an illegal arrest[.]" Appellant took the same tack on appeal, asserting in his brief that "[t]he consent was obtained through the exploitation of appellant's unlawful and illegal arrest and, therefore, cannot be used as a basis to uphold the search." In making this argument appellant relied by analogy upon, inter alia, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), in which apparently voluntary confessions following illegal arrests were held inadmissible as fruit of the poisonous tree.

The court of appeals focused almost exclusively, however, on the question whether appellant's consent to search was voluntary. Noting that the fact of arrest alone will not operate to vitiate voluntariness of consent, the court of appeals concluded that under the totality of the circumstances, voluntariness was shown. Only passing reference was made to appellant's contention, viz: "Appellant's consent removed the taint of an illegal arrest, if any, and vitiated the need for a showing of probable cause." In giving such short shrift to the essence of appellant's complaint, the court of appeals erred.

II.

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) the Supreme Court opined:

"... We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)."

371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. The first occasion this Court had to apply the attenuation of taint analysis in the context of consent following an illegal arrest came in Potts v. State, 500 S.W.2d 523 (Tex.Cr.App.1973). There it was held that "even assuming that the arrest and detention were illegal, [defendant's] consent to search, voluntarily made, 'dissipated the taint of the arrest' and made the fruits of the search admissible into evidence. Phelper v. Decker, [401 F.2d 232 (CA5 1968) ]." 500 S.W.2d at 526-27. It will be observed that the analysis in Potts, supra, sounds very like that which the court of appeals made in the instant cause. Subsequent caselaw, however, has rendered such a simple analysis untenable.

To begin with, Phelper v. Decker, supra, did not hold that voluntariness of consent following an illegal arrest would automatically attenuate the taint of the illegality and thus render admissible the fruit of the consensual search in every case. Though predating Brown v. Illinois, supra, by some seven years, Phelper recognized circumstances to be considered in determining whether taint has been attenuated which sound much like those later set out in Brown. One consideration was said to be "the proximity of the illegal arrest to the procurement" of the evidence sought to be suppressed. 401 F.2d at 237. Another was said to be "intervening occurrences between the illegal arrest and the acquisition of the evidence sought to be used." Id. The "most important" consideration was deemed to be "whether the arrest was illegal as a matter of failure to comply with technical requirements or whether the arrest and subsequent search and seizure amounted to a gross violation of legal processes." Id., at 237-38. "Taking all these factors into consideration, along with the State Trial Judge's and jury's finding that Phelper's consent was voluntary and the product of his own free will," ³ the Fifth Circuit concluded that the consensual search was not tainted. Id., at 238. Later Fifth Circuit decisions applying Phelper, however, were to find dissipation of taint when consent to search after an arguably illegal arrest was voluntary, given in...