Hard cases make bad law. This is such a case.
The State failed to prove by clear and convincing evidence that the taint resulting from the illegal arrest had dissipated when, five action-packed minutes later, Larson gave the officers consent to search. Because this legal issue is fact sensitive, the facts surrounding the unlawful arrest and the consent to search are critical.
On November 18, 1992, Tim Rice, through his brother, contacted Howard Dunham, a Texas Ranger, concerning two murders in Marion County. The following day Dunham went to Idabel, Oklahoma, and met with Tim Rice for about eight hours. Rice informed Dunham and other law enforcement personnel that Louanne Larson had shot and killed two men. Rice, who along with Tim Rule had disposed of the bodies, led the law enforcement officers to the bodies of Cedric Baker and Eddie Wardlaw.
After confirming the deaths, Dunham believed that a search of Larson's apartment and Lou's Place, the nightclub where the murders occurred, might be needed. Dunham conferred with Charles Bailey, the Titus County district attorney, about obtaining a search warrant. Bailey advised Dunham that rather than obtaining a search warrant he should arrest Larson and attempt to get her to consent to a search of her residence and business premises.
Thereafter, on the morning of November 20, Dunham went to Tony Hileman, the district attorney of Marion County, for assistance in obtaining arrest warrants for Larson and Tim Rule. Dunham signed the two defective "affidavits for information" that were provided by the Marion County district attorney's office and which formed the basis for the illegal arrest warrants issued by F.L. Garrison, 115th District Court Judge, Marion County, at about 10:45 a.m.7
Thereafter, seven law enforcement officers, including Ranger Brantley Foster and Dunham, proceeded to Larson's apartment. Several officers, with guns drawn, knocked on the apartment door. When a man named Jack Sanders answered the door, the officers proceeded to the bedroom. At 11:35 a.m., Foster, Dunham, and another officer entered the bedroom, where Larson and Rule were naked and asleep. When they were awakened, Rule was groggy and both Rule and Larson appeared startled. In a loud voice to gain control and attention, Foster told them that they were under arrest and not to move.
Rule got out of bed and dressed, then the male officers left the bedroom with him. Larson remained behind and got dressed while Liz Templin, a female Marion County deputy sheriff, remained with her.
After Larson got dressed, Foster and Dunham re-entered her bedroom. Dunham read Larson her rights. Larson signed a consent form for the search of her apartment at 11:40 a.m. Later, at 12:33 a.m., Larson signed a consent form for the officers to search Lou's Place and her personal automobile. As Dunham said, "[I]t all happened rather quickly."8
With these facts in mind, it is appropriate to undertake to apply the law to the facts. I agree with the majority that we must analyze the attenuation issue pursuant to Brown v.Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), to determine whether the State proved by clear and convincing evidence that the taint of the illegal arrest was sufficiently attenuated from obtaining Larson's *Page 211 consent. Following Brown, the Texas courts look to four relevant factors to determine whether the taint was attenuated: (1) whether Miranda9 warnings were given; (2) the temporal proximity of the arrest and the consent or statement;10 (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. Johnson v. State, 871 S.W.2d 744, 751 (Tex.Crim.App. 1994). The majority has analyzed the evidence concerning these factors and has determined that: factor one (Miranda warnings were given) favors the State; factor two (temporal proximity) favors Larson; factor three (intervening circumstances) favors Larson; and factor four (purpose and flagrancy of official misconduct) favors the State.
I agree with the majority about factors one, two, and three. I believe that the fourth factor is a neutral consideration. Some of the reasons why I disagree with the majority's conclusion that the fourth factor, the purpose and flagrancy of official misconduct, "falls in favor of the State" are the following: the police requested Larson's consent to search — she did not volunteer her consent; Ranger Dunham initially proposed to obtain a search warrant because he knew Larson's house and business needed to be searched, but after consulting with the Titus County district attorney, he decided to proceed to arrest Larson and obtain her consent (indicating that the police planned from long before they obtained the arrest warrant to get Larson to consent to a search); the officers testified they knew that in order to obtain an arrest warrant they needed to allege facts within their knowledge, and they knew that the affidavits for information did not contain any facts; and the trip "to jail," during which Larson was interrogated for one hour and ten minutes, indicates that the purpose of the trip was not to transport Larson to jail but to obtain her statement.
The flagrancy of the official misconduct is not so great, but the purpose of the conduct was to obtain Larson's consent to search. The decision not to obtain a search warrant because obtaining her consent would be a legally preferable option indicates conduct that seeks to evade the legal requirements for a search — conduct close to misconduct. Likewise, the long time taken for what should have been a short trip indicates that the officers' purpose was not to transport her to jail, as indicated, but rather to question her. This conduct could be said to be devious. I cannot agree that the purpose — to evade the legal requirements for a search of a person's home — and flagrancy of official misconduct is so on the side of the officials that this fourth factor favors the State.
However, my disagreement with the majority is on more fundamental bases than a different view of this fourth factor. The core flaw in the majority's opinion is the total failure to conduct any balancing test or analysis of the four factors. Perhaps its failure to weigh those factors is explained by the reality that any rational weighing of those factors reveals that the State has not met its burden to show by clear and convincing evidence that the taint resulting from the illegal arrest had dissipated when Larson consented to a search of her home.
Indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality. New York v. Harris,495 U.S. 14, 19, 110 S.Ct. 1640, 1643-44, 109 L.Ed.2d 13, 21 (1990); Brown v. Illinois, 422 U.S. 590, 598, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416, 424; see also Wong Sunv. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453 (1963). The initial wrong consists of the police's having control of the accused at the time of the consent. See Daniel A. Klein, Annotation, When isEvidence which is Obtained after Unconstitutional Search orSeizure Sufficiently Remote from such Search or Seizure so asnot to be Tainted by, and not to be Inadmissible as Fruit of,such Search or Seizure — Supreme Court Cases, 109 L.Ed.2d 787, 793 (1990). Beginning with *Page 212 the clearly unlawful arrest of Larson, the question becomes whether the causal connection between the illegal arrest and the acquisition of evidence is so remote and attenuated as to purge the taint of the constitutional violation and make the evidence admissible. See Harris, 495 U.S. at 18-20, 110 S.Ct. at 1643-44, 109 L.Ed.2d at 21; Nardone v. UnitedStates, 308 U.S. 338, 340-41, 60 S.Ct. 266, 267-68, 84 L.Ed. 307, 311-12 (1939). This question is only slightly addressed by the majority, which seems to have been mesmerized by the evidence indicating that Larson at some time may have worked, in some capacity, with the police department of Pittsburg, Texas. This is discussed as a "fifth factor," and it is this fifth factor on which the majority rests its decision.11
The concurring opinion also has embraced the error of the majority. Not only does the concurring opinion elevate the scant evidence of Larson's "police experience," it also exaggerates her intelligence and pulls from thin air Larson's "contemptuous estimate of the capacity and skill of the minions of the law." Larson v. State, 890 S.W.2d 200, 209 (Chadick, J., concurring). Any review of this record reveals that Larson's actions in the criminal episode were not those of a shrewd criminal but were more akin to those of Stanley Laurel or Oliver Hardy of Laurel and Hardy, or to those of the Three Stooges. Nonetheless, her actions are portrayed by the concurring opinion to be more comparable to Sherlock Holmes' nemesis, Moriarity. The concurring opinion seems more to expose the deficiencies of, rather than to strengthen the majority opinion.
I cannot agree that the State has proved by clear and convincing evidence that the taint resulting from the illegal arrest had dissipated five minutes after the illegal arrest when the only things that transpired were: (1) Rule got dressed, (2) Larson got dressed, (3) the officers read Larson her Miranda rights, (4) the officers asked Larson for her consent to search; and (5) the officers got Larson to sign the consent form. Furthermore, I disagree with the manner in which the majority treats the attenuation question.
I respectfully dissent.