Texas Stamp


PD-0170-22 06/22/2022

(1) “When a defendant commits a new offense immediately following an illegal search or seizure, does the new offense cease to be an intervening circumstance attenuating taint unless it is violent and/or unforeseen?”

(2) “Is an officer in a public place not in a ‘lawful place’ under a plain view analysis merely because a Fourth Amendment violation occurred?”  

An officer properly detained Massey at a gas station for a traffic violation but lacked reasonable suspicion for a frisk. During the frisk, Massey put his hand in his pocket, which caused the officer to grab Massey’s arm. Massey strained against the officer’s grip and ripped free. Massey reached into his pocket again and was withdrawing his keys as the officer drew his gun. The officer shouted instructions at him. Massey began walking away, and the officer drew his taser. Massey stood behind an air compressor and was reaching into his pockets again when the officer tased him in the back and then secured him. On the ground where Massey had been standing, the officer found methamphetamine.

Following his indictment for meth possession, Massey moved to suppress the meth as the fruit of the illegal frisk. The trial court denied the motion. It entered findings that the taint from the frisk was attenuated by Massey’s resistance and that—taint or not—the meth was discovered in plain sight, not as a result of the frisk. Massey then pled guilty and appealed both convictions.

On appeal, Massey reasserted his suppression arguments. The court of appeals considered the three factors guiding an attenuation analysis: (1) temporal proximity between the officer’s illegality and the discovery of evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Based on cases from other jurisdictions, it held that whether subsequent criminal offenses constituted an intervening circumstance depended on the gravity of the subsequent offense and degree to which it is an “expectable result of illegal police action.” It concluded that Massey’s resisting a search and evading detention on foot were petty and relatively predictable crimes and thus were not an intervening circumstance. In the absence of an intervening circumstance, the temporal proximity is the paramount factor and thus there was no attenuation. It also found the plain-view argument inapplicable because the officer was not lawfully in a place where the evidence could be plainly viewed, having violated the Fourth Amendment in arriving at that place (due to the illegal frisk). It rejected the State’s argument that being in a public place could undo the effect of that frisk.

The State argues that it is not the severity or extreme-ness of a suspect’s act that makes it an intervening circumstance—only whether it is an arrestable offense because that is what would give rise to probable cause for an arrest and justify any search incident to it. No Texas cases have suggested that only some criminal offenses are sufficiently intervening to purge a taint—nor should they. One cannot lawfully resist a search even if it is unlawful. And even though an unlawful detention is a defense to evading, the detention here was lawful, even if the frisk was not. The State reiterates its argument that the officer was in a public place when he viewed the meth and cites an out-of-state case holding that, despite an earlier Fourth Amendment violation, plain view could justify a seizure when evidence became “plainly viewable” due to the defendant’s conduct in removing drugs from his pocket and throwing them on the ground. It faults the court of appeals for considering how the officer got to where he was as being an improper reliance on the officer’s subjective intent. It contends that while the chain of causation from Fourth Amendment violation to drugs being left in public may be relevant to the plain-view doctrine, it does not factor into the “lawful place” prong.     

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