State v. John Berry Jackson , 435 S.W.3d 819 ( 2014 )

Opinion filed May 30, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00315-CR
__________
THE STATE OF TEXAS, Appellant
V.
JOHN BERRY JACKSON, Appellee
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 7363
OPINION
Appellee, John Berry Jackson, was charged with the offense of possession of
methamphetamine, with intent to deliver, in an amount of four grams or more but
less than 200 grams. Jackson filed a pretrial motion to suppress the evidence. He
asserted that the police officers found the methamphetamine as the result of an
illegal search of his car. The trial court granted Jackson’s motion. The State has
filed this interlocutory appeal from the trial court’s order. In two appellate issues,
the State asserts that the trial court erred when it granted Jackson’s motion to
suppress. We affirm.
The evidence at the suppression hearing showed that Jackson was the subject
of a narcotics investigation in Mitchell County in November 2011. Law
enforcement officers believed that Jackson, who resided in Colorado City, was a
methamphetamine dealer. On November 22, 2011, the officers worked with a
confidential informant to set up a controlled buy of methamphetamine from
Jackson. The confidential informant purchased methamphetamine from Jackson,
who was in his Dodge Charger at the time of the sale. On November 29, 2011, the
confidential informant made a second purchase of methamphetamine from
Jackson. The officers received information that Jackson traveled to the Dallas-
Fort Worth Metroplex to obtain methamphetamine once every week or two weeks.
Investigator Billy Sides, a peace officer employed by the 32nd District
Attorney’s Office, prepared an affidavit for the installation and use of a mobile
tracking device pursuant to Article 18.21, section 14 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 18.21, § 14 (West Supp. 2013).
Investigator Sides presented his affidavit to the 32nd Judicial District Judge. In the
affidavit, Investigator Sides requested a court order that would authorize the
installation and use of a mobile tracking device on Jackson’s Dodge Charger. The
officers wanted to track Jackson’s vehicle so that they would know when he left
town. As required by Article 18.21, Investigator Sides stated in his affidavit that
he had reasonable suspicion that Jackson was engaging in criminal activity and that
the installation and use of a mobile tracking device on Jackson’s car was likely to
yield information that was relevant to the investigation of the criminal activity.
See id. art. 18.21, § 14(c)(5). In the affidavit, Investigator Sides detailed the facts
and circumstances that gave him such reasonable suspicion.
2
On December 2, 2011, the district judge issued an order in which he
authorized law enforcement officers to install a mobile tracking device on
Jackson’s car for the purpose of following and tracking the car. On December 6,
2011, officers installed a GPS electronic tracking device on the car. The GPS
device allowed the officers to monitor the location and speed of Jackson’s vehicle
at all times. The officers set up the GPS device to provide notification to
Investigator Sides on his cell phone whenever Jackson left Colorado City. The
officers did not obtain a search warrant.
On the morning of December 12, 2011, Investigator Sides received a cell
phone notification that Jackson’s car had left Colorado City. The officers started
to monitor the car. The GPS device showed that the car was headed toward the
Metroplex. At that time, the officers did not know who was driving the car, but
they later discovered that Jackson was the driver. An officer who was unaware of
the investigation stopped Jackson for speeding near Six Flags in Arlington. After
the stop, the GPS device showed that Jackson drove his car to a residential area in
Mesquite, where he stayed for about two hours.
Jackson left Mesquite and then drove back toward Colorado City. The
officers continued to track his car with the GPS device. Investigator Sides and
another officer drove to Taylor County in separate unmarked vehicles, and they
began to follow Jackson when they saw his car. At that time, Investigator Sides
saw that Jackson was driving the car. The GPS device indicated that Jackson was
driving at a speed in excess of the speed limit the entire trip. Investigator Sides
testified that the officers also determined, by the use of the speedometers in their
unmarked vehicles, that Jackson was speeding. Investigator Sides said that
Jackson drove at a speed between 73 and 74 miles per hour in areas where the
speed limit was 70 miles per hour.
3
The officers informed Mitchell County Deputy Gary Clark that Jackson was
headed to Mitchell County and that Jackson was speeding. Deputy Clark had been
involved in the ongoing narcotics investigation of Jackson. Deputy Clark
positioned his patrol car in Mitchell County and waited for Jackson to arrive.
When Jackson arrived, Deputy Clark used his radar on Jackson’s car. The radar
showed that Jackson was driving between 73 and 74 miles per hour. Deputy Clark
stopped Jackson for speeding. Investigator Sides and the other officer arrived in
their unmarked vehicles and stopped at the scene. Deputy Clark contacted
Jackson, and Investigator Sides stood by Deputy Clark’s vehicle. Investigator
Sides heard the conversation between Deputy Clark and Jackson.
Investigator Sides testified that the stop of Jackson was legal for two
reasons. First, Investigator Sides said that the officers had probable cause to stop
Jackson because they observed him commit the traffic violation of speeding.
Second, Investigator Sides said that the officers had reasonable suspicion to
believe that Jackson had narcotics in his car and that the reasonable suspicion
justified the stop.
Within a few minutes of the stop, Deputy Clark asked Jackson for consent to
search Jackson’s car. Investigator Sides testified that Deputy Clark asked for
consent to search because the officers reasonably believed that Jackson had
narcotics in the car. Investigator Sides said that Jackson gave Deputy Clark his
consent to search. The officers searched Jackson’s car. They quickly found
methamphetamine in the trunk. Deputy Clark arrested Jackson for possession of a
controlled substance.
Jackson was immediately transported to the police department and then
interrogated by the officers. Investigator Sides testified that Jackson was
admonished of his rights. Investigator Sides said that Jackson acknowledged his
rights, willfully waived his rights, agreed to talk to the officers, and gave a
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recorded interview. During the interview, Jackson admitted that he purchased the
methamphetamine the officers found in his trunk and that he intended to sell it.
Jackson told the officers that the seized methamphetamine weighed two ounces.
Jackson acknowledged in the interview that he gave the officers consent to search
his car.
After the evidence was concluded, the trial court heard arguments from
Jackson’s counsel and the prosecutor. Following the arguments, the trial court
granted Jackson’s motion to suppress. The trial court entered the following agreed
amended findings of fact and conclusions of law in support of its ruling:
FINDINGS OF FACT
1. An affidavit for the installation and use of a mobile tracking
device pursuant to Article 18.21 § 14, Texas Code of Criminal
Procedure, was presented to the 32nd District Court Judge on
December 2, 2011.
2. The Order authorizing the installation of a mobile tracking
device was signed on December 2, 2011, and on December 6, 2011,
an electronic tracking device was installed on the light blue 2006
Dodge Charger, bearing license plate BW1V825, being used by
[Jackson] in Mitchell County, Texas.
3. On December 12, 2011, law enforcement used the tracking
device to track [Jackson’s] vehicle from Mitchell County, Texas, to
Mesquite, Texas, and back again.
4. [Jackson’s] movements in the car were closely monitored
by law enforcement, and very soon after crossing the line back into
Mitchell County, [Jackson] was stopped for speeding.
5. [Jackson] gave verbal consent to law enforcement to search
his vehicle.
6. [Jackson’s] car was searched, and when methamphetamines
were found, [Jackson] was arrested.
5
CONCLUSIONS OF LAW
1. The installation and use of the mobile tracking device
installed by law enforcement officers on [Jackson’s] vehicle
constitutes a “search” within the meaning of the Fourth and
Fourteenth Amendments to the United States Constitution (see United
States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012)[)].
2. A warrant was not obtained by law enforcement prior to the
installation and use of the mobile tracking device on [Jackson’s]
vehicle.
3. Aside from the information gathered from the mobile
tracking device, law enforcement would not have known where
[Jackson] was, would not have had reason to intercept [Jackson’s]
vehicle, and therefore did not have probable cause to search
[Jackson’s] vehicle.
4. Due to lack of probable cause, all information gathered by
law enforcement, including statements of [Jackson], from the time law
enforcement installed the mobile tracking device, is excluded from the
trial of this case.
The State contends in its first issue that the officers stopped Jackson based
on a reasonable suspicion that he committed a traffic violation and that he
possessed illegal contraband, that he subsequently consented to the search, and
that, therefore, neither probable cause nor a search warrant was required to search
his car. The State asserts that, under these facts, the United States Supreme
Court’s holding in United States v. Jones, 132 S. Ct. 945 (2012), is not relevant to
this case. In its second issue, the State contends that, if the installation and use of
the mobile tracking device on Jackson’s car constituted an illegal search under
Jones, Jackson’s commission of the speeding offense and his consent to search
were intervening circumstances that attenuated the taint of the illegal search.
6
Accordingly, the State argues that the trial court erred when it granted Jackson’s
motion to suppress.
Jackson contends that, under Jones, the warrantless installation and use of
the GPS device on his car constituted an illegal search and that the evidence the
officers obtained as a result of the use of the GPS device was tainted by the
primary illegality of the officers’ use of the device. He asserts that his speeding
violation and consent to search did not attenuate the taint of the illegal search.
Therefore, Jackson argues that the trial court did not err when it granted his motion
to suppress.
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). We
apply a bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex.
Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). First, we afford almost total deference to the trial court’s determination of
historical facts. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App.
2011); Valtierra, 310 S.W.3d at 447. The trial court is the sole trier of fact and
judge of the credibility of the witnesses and the weight to be given their testimony.
Valtierra, 310 S.W.3d at 447; Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim.
App. 2007). Second, we review de novo the trial court’s application of law to
facts. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Hubert, 312
S.W.3d at 559. We will sustain the trial court’s ruling if it is reasonably supported
by the record and is correct on any theory of law applicable to the case. Valtierra,
310 S.W.3d at 447–48; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006).
After the officers used the GPS device on Jackson’s car in this case, the
Supreme Court decided Jones. In Jones, the Supreme Court held that the
warrantless installation and use of a GPS device on a suspect’s vehicle to monitor
7
the vehicle’s movements constitutes a search within the meaning of the Fourth
Amendment. 132 S. Ct. at 949. As the trial court concluded in this case, the
officers’ installation and use of the GPS device on Jackson’s vehicle constituted a
search under Jones.
In Jones, the government argued that the installation and use of a GPS
device was not a search under the Fourth Amendment. The government argued in
the alternative that, if the officers’ use of the GPS device constituted a search, the
search was reasonable and lawful under the Fourth Amendment because the
officers had reasonable suspicion and probable cause to believe that Jones had a
leadership role in a cocaine distribution conspiracy. Id. at 954. The Supreme
Court concluded that the government had forfeited this argument by failing to raise
it in the trial court. Thus, the Court declined to consider whether the warrantless
use of a GPS device to track a vehicle’s movements is lawful under the Fourth
Amendment if it is supported by probable cause or reasonable suspicion. Id.
Warrantless searches are per se unreasonable under the Fourth Amendment
unless the State can prove that the search was conducted pursuant to a recognized
exception to the warrant requirement. Arizona v. Gant, 556 U.S. 332, 338 (2009);
Wiley v. State, 388 S.W.3d 807, 818 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d). In this case, the State obtained a court order that authorized the installation
and use of a GPS device on Jackson’s car. The order was based on Investigator
Sides’s reasonable suspicion affidavit. The State has not argued on appeal that an
officer’s reasonable suspicion that a suspect is engaging in criminal activity is
sufficient under Jones to render a search using a GPS device reasonable and legal
under the Fourth Amendment. Therefore, we do not decide the issue. The State
has not shown that its warrantless search with the GPS device on Jackson’s car met
an exception to the warrant requirement. Under this circumstance, we must deem
8
that the State’s installation and use of the GPS device was illegal for the purpose of
our analysis. Hubert, 312 S.W.3d at 560.
The State contends that the holding in Jones is irrelevant to this case. To
support this contention, the State asserts that the stop of Jackson’s car was legal for
two reasons: (1) that Deputy Clark had reasonable suspicion that Jackson
committed a speeding offense because Deputy Clark saw Jackson commit the
offense and (2) that the officers had reasonable suspicion that Jackson possessed
methamphetamine in his car. The State argues that, because the stop was legal and
because Jackson subsequently consented to the search, Jones does not apply to the
facts of this case.
A police officer may lawfully stop a driver who commits a traffic violation.
Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). An officer has
probable cause to stop and arrest a driver if the officer observes the driver commit
a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005).
In this case, Deputy Clark observed Jackson commit a speeding offense. That
observation gave Deputy Clark probable cause to stop Jackson. However, this
conclusion does not end our analysis because the illegal search with the GPS
device contributed to the stop.
The officers believed that Jackson traveled to the Metroplex to purchase
methamphetamine. The officers used the GPS device on Jackson’s vehicle to learn
when he left town. Thus, as a result of the use of the device, the officers were able
to closely track Jackson’s movements and speed at a particular time when they
thought he was on a trip to purchase methamphetamine. As stated above, the trial
court found that “law enforcement used the tracking device to track [Jackson’s]
vehicle from Mitchell County, Texas, to Mesquite, Texas, and back again” and that
“[Jackson’s] movements in the car were closely monitored by law enforcement,
and very soon after crossing the line back into Mitchell County, [Jackson] was
9
stopped for speeding.” These findings were supported by the evidence. The GPS
device showed that Jackson was speeding during his trip. Because the GPS device
provided knowledge of Jackson’s location to the officers, Investigator Sides and
another officer were able to locate Jackson’s car in Taylor County and then to
follow Jackson from Taylor County to Mitchell County. They informed Deputy
Clark when Jackson approached Mitchell County. In the absence of the use of the
GPS device, the officers would not have known Jackson’s location.
The data obtained from the use of the GPS device enabled the officers to be
in a position to stop Jackson for speeding in Mitchell County. Without that data,
the stop likely would not have occurred. The evidence supported the trial court’s
conclusion that, “[a]side from the information gathered from the mobile tracking
device, law enforcement would not have known where [Jackson] was [and] would
not have had reason to intercept [his] vehicle, and therefore did not have probable
cause to search [his] vehicle.” The illegal use of the GPS device played an integral
part in the execution of the officers’ plan to stop Jackson in Mitchell County and
then to request his consent to search the car.
The State contends that “there was sufficient reasonable suspicion to stop
[Jackson] for possession of a controlled substance due to his status as a
probationer, his recent purchases of narcotics from a confidential informant,
knowledge of his tendency to procure narcotics in Dallas, and his travel to Dallas
and back in one day.” A police officer may stop and briefly detain a person for
investigative purposes when the officer has reasonable suspicion to believe the
person is violating the law. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.
2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A police
officer has reasonable suspicion to detain if he has specific, articulable facts that,
combined with rational inferences from those facts, would lead him reasonably to
10
conclude that the person is, has been, or soon will be engaged in criminal activity.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
We note that the evidence showed that Jackson sold methamphetamine to
the confidential informant; Jackson did not purchase methamphetamine from the
informant. Jackson was on probation for assault and not a drug-related offense.
The officers’ knowledge of Jackson’s trip to Mesquite was of paramount
importance to their determination that they had reasonable suspicion to believe that
he possessed methamphetamine. Without the use of the GPS device, the officers
would not have known that Jackson left Colorado City, that he traveled to
Mesquite, that he stayed there for only a short period of time, and that he returned
to Mitchell County. Had the officers not known about Jackson’s trip to Mesquite,
they would not have had reasonable suspicion to believe that he possessed
methamphetamine.
Based on the evidence, we conclude that the stop, Jackson’s consent to
search the car, the discovery of the methamphetamine, and Jackson’s statements to
the officers cannot be separated from the information obtained from the use of the
GPS device, which constituted a search under Jones. Therefore, we conclude that
the stop violated the Fourth Amendment. The State’s first issue is overruled.
In its second issue, the State contends that, if the use of the GPS device on
Jackson’s car was an unlawful search under Jones, Jackson’s commission of the
speeding offense and his consent to search were intervening circumstances that
attenuated the taint of the search. The federal exclusionary rule is a deterrent
sanction that bars the prosecution from introducing evidence obtained in violation
of the Fourth Amendment. Davis v. United States, 131 S. Ct. 2419, 2423 (2011).
The Texas statutory exclusionary rule is broader than the federal exclusionary rule;
the Texas rule applies to evidence that is obtained in violation of the federal and
state constitutions, United States laws, and Texas laws. See CRIM. PROC. art. 38.23
11
(West 2005); Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010).
Specifically, Article 38.23(a) of the Code of Criminal Procedure provides that
“[n]o evidence obtained by an officer or other person in violation of any provisions
of the Constitution or laws of the State of Texas, or of the Constitution or laws of
the United States of America, shall be admitted in evidence against the accused on
the trial of any criminal case.” The primary purpose of Article 38.23(a) is to deter
unlawful actions that violate the rights of criminal suspects in the acquisition of
evidence for prosecution. Wilson, 311 S.W.3d 459.
The “fruit of the poisonous tree” doctrine serves to exclude as evidence
direct and indirect products of Fourth Amendment violations. Wong Sun v. United
States, 371 U.S. 471, 484 (1963); State v. Iduarte, 268 S.W.3d 544, 550 (Tex.
Crim. App. 2008). However, evidence is not classified as a fruit that must be
excluded merely because it would not have been discovered but for the violation.
Wong Sun, 371 U.S. at 487–88; Iduarte, 268 S.W.3d at 550. “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 that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.’” Wong Sun, 371 U.S. at 488 (quoting JOHN
MACARTHUR MAGUIRE, EVIDENCE OF GUILT 221 (1959)).
Thus, if the evidence seized is sufficiently attenuated from the violation of
the law, the evidence is not considered to be obtained in violation of the law for the
purpose of Article 38.23. Johnson v. State, 871 S.W.2d 744, 750 (Tex. Crim. App.
1994). Evidence will not be excluded under Article 38.23 if the taint from the
illegality has dissipated by the time the evidence is acquired. Wehrenberg v. State,
416 S.W.3d 458, 469 (Tex. Crim. App. 2013). To determine whether the
discovery of physical evidence is sufficiently attenuated from the violation, we
consider three factors: (1) the temporal proximity of the detention and the seizure
12
of physical evidence, (2) the presence of intervening circumstances, and (3) the
purposefulness or flagrancy of the police misconduct. State v. Mazuca, 375
S.W.3d 294, 301–07 (Tex. Crim. App. 2012).
When police officers find and seize physical evidence shortly after an illegal
stop, in the absence of the discovery of an outstanding arrest warrant in between
the stop and the seizure, that physical evidence should ordinarily be suppressed,
even if the police conduct is not highly purposeful or flagrantly abusive to Fourth
Amendment rights. Id. at 306. Under this scenario, temporal proximity is the
paramount factor. Id. In this case, the officers did not discover an outstanding
warrant. The officers obtained Jackson’s consent to search Jackson’s car within a
few minutes of the stop. They immediately searched the car and found the
methamphetamine. At most, a slight temporal separation existed between the stop
and the seizure of the methamphetamine. Based on this fact, the temporal
proximity factor, which is the paramount factor in this case, weighs in favor of
suppression. The officers interrogated Jackson at the police department soon after
they found the methamphetamine. Thus, the temporal proximity factor also favors
the suppression of Jackson’s statements to the officers.
As to the second attenuation factor, the State argues that Jackson’s
commission of the “new” speeding offense in Deputy Clark’s view and Jackson’s
consent to search were intervening circumstances that attenuated the taint of the
illegal search. The State asserts in its brief that “[Jackson’s] stop was not based on
the presence of the mobile tracking device, which [Deputy Clark] did not have
access to, but rather the use of a Stalker radar unit deployed from [Deputy Clark’s]
patrol vehicle.” The State also asserts that “[t]his wholly separate observation and
action in response to a criminal violation attenuates any taint from the deployment
of the mobile tracking device.” However, as we have explained in detail above,
Deputy Clark’s stop of Jackson for speeding was closely connected to the officers’
13
use of the GPS device. The planned stop stemmed from data gathered by the use
of the GPS device; it did not result from a “wholly separate observation” by
Deputy Clark. The stop was “come at by [the] exploitation” of the information
obtained during the illegal GPS search. See Wong Sun, 371 U.S. at 488.
The State relies on Holmes v. State, 962 S.W.2d 663 (Tex. App.—Waco
1998, pet. ref’d, untimely filed), and Matienza v. State, 699 S.W.2d 626 (Tex.
App.—Dallas 1985, pet. ref’d), for the proposition that, “[r]egarding intervening
factors, the commission of a new offense has generally attenuated the taint of prior
unlawful police activity.” Both of those cases are distinguishable from this case.
In Holmes, a police officer illegally detained the defendant. Holmes, 962
S.W.2d at 669. The officer found two partially smoked marihuana cigarettes in the
defendant’s car. Id. at 667. The officer handcuffed the defendant and put the
defendant in the front seat of the police car. The officer placed the marihuana
cigarettes on the driver’s seat of the police car and then continued to work the
scene. When the officer returned to his car, the marihuana cigarettes were gone.
The officer determined that the defendant had attempted to eat them. Id. The court
held that the defendant’s voluntary commission of the offense of attempting to
destroy the evidence was an intervening circumstance that operated to purge any
taint from the illegal detention. Id. at 669.
In Matienza, a police officer detained the defendant outside the defendant’s
apartment. Matienza, 699 S.W.2d at 627. During the detention, the defendant
pulled a loaded gun out of his pocket and pointed it at the officer. The officers
arrested the defendant for attempted capital murder of a police officer and for
unlawfully carrying a weapon. In a search incident to the arrest, the officers found
cocaine. Id. The court held that the defendant’s voluntary criminal act of pointing
the gun at the officer constituted an intervening offense that purged the taint of any
illegality of the initial detention. Id. at 628.
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In both Holmes and Matienza, the defendants committed new and serious
offenses after they were detained. In this case, Jackson was stopped for driving
three or four miles per hour over the posted speed limit. The stop was directly
related to the officers’ use of the GPS device. Jackson cooperated with the officers
after they stopped him. He did not commit a new offense after the stop. We
conclude that Jackson’s speeding offense was not a sufficient intervening
circumstance to dissipate the taint of the primary illegality.
The State also argues that Jackson’s consent to search was an intervening
circumstance that attenuated the taint of the illegal search. To establish the validity
of consent after an illegal search or seizure, the State must prove by clear and
convincing evidence that the taint inherent in the illegality had dissipated by the
time consent was given. Brick v. State, 738 S.W.2d 676, 680–81 (Tex. Crim. App.
1987); Orosco v. State, 394 S.W.3d 65, 75 (Tex. App.—Houston [1st Dist.] 2012,
no pet.). In that respect, we consider the following factors: (1) the temporal
proximity between the unlawful seizure and the given consent; (2) whether the
warrantless seizure brought about police observation of the particular object for
which consent was sought; (3) whether the seizure resulted from flagrant police
misconduct; (4) whether the consent was volunteered or requested; (5) whether the
defendant was made fully aware of the right to refuse consent; and (6) whether the
police purpose underlying the illegality was to obtain the consent. Brick, 738
S.W.2d at 680–81.
In this case, Jackson consented to the search soon after Deputy Clark
stopped him. The temporal proximity factor weighs in favor of suppression.
Jackson did not volunteer his consent to the search. Rather, Deputy Clark
requested his consent. There is no evidence that the officers made Jackson aware
that he could refuse consent. Based on the evidence, the trial court could have
reasonably concluded that the police purpose underlying the use of the GPS device
15
was to effectuate a traffic stop of Jackson and then to request his consent to search
at a particular time when the officers believed he possessed methamphetamine. As
explained in our discussion of the third attenuation factor below, the seizure of the
methamphetamine did not result from flagrant police misconduct. A majority of
the Brick factors favor suppression. Based on the evidence, we cannot conclude
that the State met its burden to prove that the taint of the illegal search had
dissipated when Jackson consented to the search. Therefore, Jackson’s consent
was not a sufficient intervening circumstance to dissipate the taint of the primary
illegality.
As to the third attenuation factor, which is the purposefulness or flagrancy of
the police misconduct, the record shows that the officers acted in good faith when
they used the GPS device on Jackson’s car. Investigator Sides obtained a court
order that authorized the installation and use of the GPS device. The officers
complied with Article 18.21, section 14 of the Code of Criminal Procedure. The
Supreme Court decided Jones after the officers used the GPS device on Jackson’s
car.
The officers’ good faith reliance on Article 18.21, section 14 establishes that
the misconduct was not flagrant. The officers did not intend to conduct an illegal
search. The purpose of the use of the GPS device on Jackson’s car was to further
the narcotics investigation. The stop did not result from a routine, random traffic
stop that was made to enforce the traffic laws. Instead, the officers targeted the
stop of Jackson in an effort to obtain his consent to search his car. See Mazuca,
375 S.W.3d at 309. Although the officers used the GPS device in connection with
their efforts to effectuate a stop and to obtain consent, we conclude that the
purposefulness or flagrancy factor weighs in favor of the State because the officers
acted in good faith when they used the device.
16
Based on our consideration of the three attenuation factors, we conclude that
the discovery of the methamphetamine and Jackson’s statements to the officers
were not sufficiently attenuated from the illegal GPS search to purge the taint of
the illegality. As stated above, when no intervening circumstance exists, temporal
proximity is the paramount factor in the attenuation analysis. Mazuca, 375 S.W.3d
at 306. Because the methamphetamine was discovered a short time after the
officers stopped Jackson’s car and because there was no intervening circumstance
that provided justification for the search of Jackson’s car, we conclude that the
taint of illegality had not been purged.
Some federal courts have held that evidence obtained as a result of a GPS
search that was conducted before the Supreme Court issued its opinion in Jones is
admissible under the good faith exception to the federal exclusionary rule. United
States v. Fisher, 745 F.3d 200, 206 (6th Cir. 2014); United States v. Andres, 703
F.3d 828, 834–35 (5th Cir. 2013). Under the good faith exception, “searches
conducted in objectively reasonable reliance on binding appellate precedent are not
subject to the exclusionary rule.” Davis, 131 S. Ct. at 2423–24. In Fisher and
Andres, the courts held that it was objectively reasonable for the officers to believe
that warrantless tracking was permissible under binding appellate precedent in
their respective circuits and that, therefore, the good faith exception to the
exclusionary rule applied. Fisher, 745 F.3d at 206; Andres, 703 F.3d at 834–35.
At oral argument, the State relied on Taylor v. State, 410 S.W.3d 520 (Tex.
App.—Amarillo 2013, no pet.). Based on Taylor, the State asserted that the
evidence obtained in this case was not subject to the exclusionary rule because the
officers acted in good faith reliance on the law. The Texas legislature has created a
statutory good faith exception to the Texas exclusionary rule in Article 38.23(b) of
the Code of Criminal Procedure. The scope of the Texas good faith exception is
more limited than the scope of its federal counterpart. Article 38.23(b) provides
17
that “[i]t is an exception to the provisions of Subsection (a) of this Article that the
evidence was obtained by a law enforcement officer acting in objective good faith
reliance upon a warrant issued by a neutral magistrate based on probable cause.”
CRIM. PROC. art. 38.23(b) (emphasis added). Thus, an officer’s good faith reliance
on the law or existing precedent is not recognized as an exception to the Texas
exclusionary rule. The trial court did not err when it granted Jackson’s motion to
suppress. The State’s second issue is overruled.
We affirm the order of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
May 30, 2014
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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