I respectfully dissent to the en banc court's denial of the motion for rehearing. Rutherford's testimony was obtained in violation of a specific Texas statute — article 20.17 of the Texas Code of Criminal Procedure ("Code"). Tex. Code Crim. Proc. Ann. art. 20.17 (Vernon Supp. 1999). This statute requires both the State and the defendant to tell the truth.
I agree with the majority that the trial court's denial of the motion to suppress cannot be based upon a violation of Rutherford's state or federal constitutional rights. Several federal cases and Butterfield v. State, 992 S.W.2d 448 (Tex.Crim.App. 1999), hold that neither the Fifth Amendment privilege nor due process rights bars a prosecution for perjury based on a prosecutor's misrepresentation that a person is not a suspect.See, e.g., United States v. Babb, 807 F.2d 272, 277-279 (1st Cir. 1986); United States v. Scrimgeour, 636 F.2d 1019, 1026 (5th Cir. 1981); United States v. Crocker, 568 F.2d 1049, 1053-56 (3rd Cir. 1977). However, Rutherford is not simply asserting his constitutional rights. He asserts, and I agree, that his testimony was obtained in violation of article 20.17 of the Code. Tex. Code Crim. Proc. Ann. art. 20.17 (Vernon Supp. 1999). This provision requires the State to inform a suspect that he is a suspect before he is placed before the grand jury. The State did the opposite. Because of this, the trial court properly suppressed Rutherford's testimony. Even the federal courts, which have rejected the federal constitutional arguments for suppressing perjured testimony, have exercised their supervisory powers to order the suppression of grand jury testimony where the prosecutors act in violation of a uniform procedure of warning target defendants that they are suspects. See Crocker, 568 F.2d at 1055-56 (citing cases from the Second and Third circuits). In this case, the State violated not only a uniform procedure, but a state statute. The State told Rutherford that he was not a suspect when, in fact, he was.
Under article 38.23 of the Code, evidence obtained in violation of any law of the State of Texas must be excluded from evidence. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 1999). In this case, Rutherford's testimony was obtained in violation of article 20.17 of the Code because the State failed to inform Rutherford that he was suspected of committing a crime before he testified before the grand jury. Tex. Code Crim. Proc. Ann. art. 20.17 (Vernon Supp. 1999). The majority holds that "because Rutherford's grand jury testimony did not exist before the alleged misrepresentation, the misrepresentation could not have been motivated by an effort to obtain evidence to use against Rutherford in an aggravated perjury prosecution." The majority relies on three cases to support its reasoning that the misrepresentation and Rutherford's grand jury testimony were not causally related: State v. Mayorga,901 S.W.2d 943 (Tex.Crim.App. 1995); Johnson v. State,871 S.W.2d 744 (Tex.Crim.App. 1994); and Cooper v.State, 956 S.W.2d 95 (Tex.App.-Tyler 1997, pet. ref'd). Each of those cases is distinguishable from the facts presented in this case.
In State v. Mayorga, Mayorga was charged with resisting arrest.901 S.W.2d 943 (Tex.Crim.App. 1995). She sought to suppress the evidence of her resistance because the arrest which she resisted was unlawful. Id. at 944. (The officers were attempting to arrest her for outstanding warrants, but no outstanding warrants actually existed.) The Court of Criminal Appeals held that where officers arrest a person based on objectively reasonable information, *Page 672 and that person resists arrest, the evidence of the resistance is not obtained in violation of the law as article 38.23 contemplates, and therefore, the exclusionary rule is not applicable. See id. at 946. The Court quoted the following explanation offered by the lower court:
Id. (emphasis added). The State did nothing wrong in Mayorga. The focus of the decision was on the objective reasonableness of the police officers' conduct and the absence of any ability of the officers to foresee obtaining evidence as a consequence of their actions.[W]hen a defendant [resists] at the time and place of arrest, the evidence of resistance comes into existence contemporaneously with the officer's attempt to arrest him. Because the evidence does not exist prior to the illegal arrest and may never exist, the police cannot suspect its existence and arrest a defendant for the purpose of gaining the evidence. The police correspondingly cannot foresee getting the evidence as a consequence of their actions; their decision to arrest cannot be motivated by the possible acquisition and use of evidence. Absent other facts inculpating the police conduct, the evidence of resisting arrest simply does not come into existence at a time and place or under circumstances to be within the field of exploitation.
The State did do something wrong in this case. That is a big difference. The prosecutor's action was not objectively reasonable and the grand jury testimony did come into existence under circumstances within the field of exploitation. Deferring to the trial judge with regard to historical facts, the trial court rejected the notion that Rutherford was not a suspect:
THE COURT: All right. Now answer me with a straight face. When Mr. Rutherford was called in front of that grand jury, are you telling me he is not a suspect?
MR. THORNBERRY: That is what I am telling you.
THE COURT: Okay. I find that incredulous, based upon the police reports of an investigation that went on for almost three years. I mean, they issued a subpoena for that IRS check three years prior to even calling him in front of a grand jury.
In Mayorga, the Court noted that excluding the evidence in that case would have no other result than to stymie a police officer in carrying out his duties in the future. In this case, excluding the evidence would have the result of enforcing the statutory obligation to warn a grand jury witness of his status as a suspect. Such a warning obviously impacts the witness's choice as to whether he should invoke his Fifth Amendment privilege.
Similarly, in Cooper v. State, the evidence sought to be suppressed related to actions taken by the appellant in response to objectively reasonable actions of a police officer.956 S.W.2d 95 (Tex.App.-Tyler 1997, pet. ref'd). In that case, a police officer observed suspicious activity and stopped to investigate.See id. at 96. He asked appellant to identify himself, and appellant refused to answer and sought to escape. See id. Appellant hit the officer, and the incident escalated into a struggle over a pistol. See id. Appellant was charged with aggravated assault on a police officer. See id. The court relied on the reasoning in Mayorga that no evidence of the offense would have come into existence if appellant had acted reasonably in response to the officer's objectively reasonable actions. See id. at 98.
Finally, in Johnson v. State, the evidence sought to be suppressed was obtained after an arrest warrant was obtained that "attenuated" the prior warrantless arrest. 871 S.W.2d 744 (Tex.Crim.App. 1994). Importantly, the court noted four factors that should be considered in applying the attenuation doctrine: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. *Page 673 See id. at 751. These four factors are applied to determine whether a causal relationship exists between the legal violation and the obtaining of evidence. The Court concluded that the intermediate court's analysis of the attenuation issue was adequate to conclude that the taint was attenuated. See id. The intermediate court reasoned that appellant had been given hisMiranda warnings, the arrest warrant arrived before appellant signed the written statement, and the police did not act in a flagrant and purposeful manner. See id.
Although the majority opinion refers to the attenuation doctrine, it does not discuss the four relevant factors. Applying the factors to the facts in this case, it is apparent that the attenuation doctrine does not remove the taint of failing to inform Rutherford that he was a grand jury suspect.
Although the warnings given a suspect were provided to Rutherford, it was after he was repeatedly assured that he was not a suspect. The misrepresentations were made in proximity with Rutherford's testimony and without any intervening circumstances. Finally, the official misconduct was purposeful and flagrant. The trial judge found the prosecutor's statement that Rutherford was not a suspect "incredulous." Given the records that the prosecutor had subpoenaed regarding Rutherford during the three year investigation and the fact that Rutherford is listed as a suspect in the police investigative documents, there is ample evidence to support the trial judge's finding.
All of the cases cited by the majority involve circumstances where the police officers' actions were objectively reasonable. No facts were present in those cases that inculpated the police conduct. In our case, not only did the prosecutor violate a state statute, but she totally misrepresented the true state of affairs.
Given the documentation in the prosecutor's possession, including the police investigative reports that list Rutherford as a suspect, the decision to question Rutherford under the guise that he was not a suspect was probably motivated by the desire to obtain additional evidence to be used against him. I would grant the rehearing en banc.
Justice ALMA L. LOPEZ, and Justice CATHERINE STONE, joined