Russell v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: CAMPBELL; CLINTON; TEAGUE
• Citation: Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986)
• Decision Date: 28 May 1986
• Docket Number: No. 705-84,705-84
• Parties: Donna Renae RUSSELL, Appellant, v. The STATE of Texas, Appellee.

Page 7

717 S.W.2d 7

Donna Renae RUSSELL, Appellant, v. The STATE of Texas, Appellee.

No. 705-84.

Court of Criminal Appeals of Texas En Banc.

May 28, 1986.

Nancy Gail Huggins, Jan E. Hemphill, Dallas, for appellant.

Henry Wade, Dist. Atty., & Jeffrey B. Keck, Andy Anderson & Mary Ludwick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING ON PETITION FOR

DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant, a juvenile certified for trial as an adult, was convicted by a jury of the offense of murder. V.T.C.A., Penal Code, § 19.02. Punishment was assessed by the jury at confinement for 99 years in the Texas Department of Corrections.

The Fifth Court of Appeals reversed the conviction, finding that evidence of appellant's guilt should have been suppressed because it was the product of an illegal arrest, thus violating the Fourth Amendment. ¹ Russell v. State, 672 S.W.2d 583 (Tex.App.--Dallas 1984). The Court of Appeals relied upon the test enunciated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) in determining that the taint of an illegal arrest had not been attenuated when appellant consented to a search of her home and subsequently confessed. We initially denied the State's petition for discretionary review. However, upon rehearing, we granted review to determine 1) whether the Court of Appeals should have applied the Brown test under the instant facts, and 2) whether the test was applied correctly. We need not address the second question because we find that no arrest, whether legal or not, occurred prior to appellant's consent to search her home. ² We will reverse and remand.

On January 18, 1982, while extinguishing a house fire in Dallas, firemen discovered the body of an elderly female. That same day, Police Officer King spoke with appellant, who lived across the street from the burned house, concerning the cutting of telephone wires at a different house in the same neighborhood. Appellant was transported to the police station by Officers King and Graves, given Miranda warnings, and questioned as to the fire and the cut telephone wires. Appellant voluntarily accompanied the officers to the police station.

Appellant denied committing the murder and was returned to her home. However, she agreed to return to the police station the following morning. On January 19, 1982, Officer Graves picked up appellant at her home and transported her to the police station where she was again advised of her Miranda rights. Appellant was taken to the police department's polygraph examination room and remained there with the polygraph examiners.

During the examination, appellant ran out of the polygraph room, which was on the second floor of the police station, and onto Main Street in downtown Dallas. The polygraph examiners informed Officer Graves of the incident, and he told them to go after appellant. Appellant soon returned to the police station. The record is silent as to the circumstances surrounding her return. ³ Upon appellant's return, she was provided cigarettes and a soft drink and allowed to calm down. Appellant then signed a consent form, allowing officers to search her home. Officers searched her home and found bloody clothing. Upon being told of the results of that search, appellant orally confessed to the murder of the elderly woman found in the burned house. At that point, appellant was formally placed under arrest. Appellant then provided additional incriminating statements concerning facts surrounding the murder. Both oral statements were reduced to writing and signed by appellant. The police then searched appellant's home again and found the hammer used to kill the deceased.

The Court of Appeals held that "the pursuit and return [of appellant to the police station] amounted to a show of official authority such that 'a reasonable person would have believed that he was not free to leave.' " Russell v. State, 672 S.W.2d 583, 587 (Tex.App.--Dallas 1984), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). The Court of Appeals also found that this "arrest" occurred without probable cause, thus creating an illegal arrest. Id. The Court of Appeals then considered whether the evidence obtained subsequent to that arrest was tainted by the initial illegal arrest and concluded that it had been tainted. Id.

The State argues that the Court of Appeals unnecessarily applied the Brown test because appellant had not proven that any arrest, whether legal or not, had taken place prior to giving her consent to search her home. ⁴ After examining the record, we agree.

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has placed the burden of proof initially upon the defendant. Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Cr.App.1970). ⁵ As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. Id., relying upon United States v. Thompson, 421 F.2d 373, 377 (5th Cir.1970) and Rogers v. United States, 330 F.2d 535 (5th Cir.1964), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186. Cf. United States v. Bachner 706 F.2d 1121, 1125-26 (11 Cir.1983). A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Mattei, supra, at 766, quoting Rogers v. United States, 330 F.2d, at 542.

Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. ⁶ Id. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. Rumsey v. State, 675 S.W.2d 517, 520 (Tex.Cr.App.1984), quoting United States v. Thompson, 421 F.2d, at 377. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1961); Williams v. United States, 382 F.2d 48, 50 (5th Cir.1967). If the State is unable to produce evidence of a warrant, then it must prove the reasonableness of the search or seizure. LaLande v. State, 676 S.W.2d 115, 116 (Tex.Cr.App.1984); Hooper v. State, 533 S.W.2d 762, 767 (Tex.Cr.App.1976) (Opinion on Rehearing); Washington v. State, 518 S.W.2d 240, 242 (Tex.Cr.App.1975).

In the instant case, appellant had the initial burden of proving that 1) a seizure occurred and 2) without a warrant. ⁷ From Officer Graves' testimony it is obvious that no warrant was obtained. However, there is no evidence to support the conclusion that appellant was "seized" sometime after running from the police station and before returning and giving her consent to a search of her home.

The Supreme Court has developed an objective test for determining whether a person has been seized:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [footnote omitted] Examples of circumstances that might indicate seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. [citations omitted] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. [emphasis added]

United States v. Mendenhall, 446 U.S., at 555, 100 S.Ct., at 1877. See also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

In the instant case, appellant presented no evidence concerning the circumstances of her "seizure." ⁸ Neither appellant nor the polygraph operators testified. Appellant's attorney did ask Officer Graves on cross-examination whether she was placed under arrest upon being brought back to the police station. Officer Graves testified, "At that time she was still under investigation for the cutting of the wire, but the main reason I had them go get her was because her mind at that period of time was hysterical and I was worried about her safety." During subsequent questioning, Officer Graves stated, "At the point in time when I arrested Donna was immediately after the first voluntary statement."

While we might infer from Officer Graves' testimony that he intended for the polygraph operators to restrain appellant and force her to return to the police station, such evidence "is irrelevant except insofar as that may have been conveyed to the [appellant]." United States v. Mendenhall, 446 U.S., at 554, n. 6, 100 S.Ct., at 1877, n. 6. Appellant has offered no evidence that she was aware of Officer Graves' intentions. She has also offered no evidence that she was physically threatened or restrained, verbally intimidated, or otherwise compelled by others to return to and remain at the police station.

This Court could only conclude that appellant was "seized" by indulging in speculation as to what convinced appellant to return to the police station and remain. While such a conclusion might be an attractive solution to a difficult question, it would require this Court to ignore its responsibility to decide questions based on facts as presented in the record. Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981). Having found that appellant failed to meet her burden of proof, we must conclude that no Fourth Amendment seizure has been established.

In the absence of a seizure prior to appellant giving her consent and subsequent confession, the Court of Appeals should not have found that appellant's consent was obtained by exploitation of an illegal...