dissenting.
The majority attempts to establish a broad policy of deference to the courts of appeals. According to the majority, we should act as the “caretaker of Texas Law, not the arbiter of individual applications,” reserving our powers of review “to dispel any confusion generated in the past by our own case law, to reconcile settled differences between the various courts of appeals, and to promote the fair administration of justice by trial and appellate courts throughout Texas.” Maj. op. pgs. 360-361. I agree that, as a general rule, we should defer to the courts of appeals when they resolve points of error by correctly applying the holdings of this Court. See, Riley v. State, 830 S.W.2d 584, 587 (Tex.Cr.App. 1992). Maj. op. pg. 361. However, we should not hesitate to exercise our powers of review when a court of appeals misinterprets our precedent. In such a case, we should grant review to assist the courts of appeals in their role of correctly providing appellate resolution of the issues presented on direct appeal.
While I am in general agreement with the majority’s policy of deference, I am certain this is not the case to establish the policy. This case dramatically presents a situation where the Court of Appeals has misinterpreted our precedent; after correctly recognizing the attenuation analysis was required, the Court of Appeals failed to conduct a correct attenuation analysis. If we want to establish a policy of deference we should wait for the proper case. Today we should exercise some judicial restraint and simply address appellant’s sole ground for review.
Because the majority refuses to wait for the proper case, I am compelled to dissent for three separate reasons. First, the majority reads appellant’s ground for review as not raising the attenuation issue. Second, I would hold appellant’s consent was tainted by his illegal arrest. Finally, I dissent because the majority opinion misapplies Meraz v. State, 785 S.W.2d 146 (Tex. Cr.App.1990), and Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985).
I. THE ATTENUATION ISSUE IS PRESERVED
A.
To use this case to establish a policy of deference, the majority holds appellant waived the attenuation argument; a holding contrary to the record, the briefs and the opinion of the Court of Appeals. The majority asserts:
Appellant makes no complaint before this Court, nor did he previously before the trial and appellate courts, that his consent to search, even if voluntary, was nonetheless rendered ineffective by unattenuated police illegality.
Maj. op. pg. 359. In the trial court, appellant moved to suppress the evidence contending “[a]ny oral or written consent to search given by [appellant] was, therefore, involuntary and the direct result of over-bearance by forces of the State.”1 On direct appeal (and in his petition for discretionary review) appellant argued that his consent was tainted. App. brief pg. 6; App. p.d.r. pg. 7. Further, the Court of Appeals addressed the attenuation issue. Arcila v. State, 788 S.W.2d 587, 591 (Tex. App.—Dallas 1990). Moreover, the State has never suggested that appellant waived the attenuation argument; rather the State addressed the merits of appellant’s attenuation argument. State’s brief pg. 9. Consequently, the majority errs by holding “it was not necessary that the appellate court separately decide whether the taint of the illegality was attenuated, as appellant did not raise the issue.” Maj. op. pg. 359.
The majority describes appellant’s argument as one of “pure voluntariness.” Maj. op. pg. 359. The majority states that appellant’s “only contention from the beginning” was that consent was not voluntary. Maj. op. pg. 359. However, the majority recognizes the Court of Appeals discussed the “taint” and the extent to which the taint was “attenuated” but concludes the Court of Appeals was really treating appel*364lant’s argument “purely as an issue of vol-untariness.” Maj. op. pg. 359, n. 1. That conclusion is simply not supported by the record, the briefs or the opinion from the Court of Appeals.
The majority treats appellant’s petition as presenting two distinct questions: (1) whether the lower court’s analysis should have included a separate inquiry concerning attenuation of any taint from the illegal arrest, and (2) whether the Court of Appeals erred in holding that the evidence established that the Appellant freely and voluntarily consented to the search of his residence. Maj. op. pg. 358. My review of appellant’s petition and the briefs reveal nothing to suggest that appellant complains of the Court of Appeals’ separate inquiry concerning the attenuation issue. For the majority to assert, for the first time today, that this question has been raised, is to raise and resolve an issue neither briefed nor argued by the parties. To expand our scope of review without notice to the parties is patently unfair. Furthermore, we are considering appellant’s petition. Obviously appellant is not contending the Court of Appeals should not have addressed his attenuation issue; rather his complaint is that the Court of Appeals erroneously decided the issue. The second question recognized by the majority is appellant’s sole ground for review and our decision should be limited to that question.
B.
Prior to the majority’s holding today there were several established principles on the issue of consent to search:2
1. A search conducted without a warrant issued upon probable cause is per se unreasonable subject to only a few specifically established and well-delineated exceptions.
2. One of the specifically established exceptions to the warrant requirement is a search conducted pursuant to consent because the protections of the Fourth Amendment and Article 1 § 9 may be waived by an individual consenting to a search.
3. The fact that a person is under arrest does not, in and of itself, prevent a free and voluntary consent from being given. Consent to search, freely and voluntarily given, even after an illegal arrest is still one of the recognized exceptions.
4. However, in the illegal arrest situation the State has the burden of proving by clear and convincing evidence that the consent was both voluntary and not an exploitation of the illegal arrest. A finding that the consent was voluntarily given is but one step in the determination of the propriety of the search, because even if the consent were voluntary it still may be obtained by the exploitation of an illegal arrest.
In short, if the detention is legal the sole issue is whether the consent was voluntary. However, if the detention is illegal the State must prove the consent to search was voluntary and establish the existence of intervening circumstances which prove the consent was sufficiently attenuated from the illegal detention. In other words, in illegal detention situations, even if the consent is voluntary, an attenuation analysis is nevertheless required because consent cannot be valid if obtained by exploitation of the illegality. Therefore, when the reviewing court determines the detention was illegal it has the obligation to determine whether the consent is voluntary and free from the taint of the illegality.
The Court of Appeals correctly recognized an attenuation was required.
This [the determination that appellant’s arrest was illegal] does not mean, however, that the evidence was necessarily admitted improperly.
We must now examine the record to determine whether any taint was removed by appellant freely and voluntarily consenting to the search or whether *365the consent and subsequent search were tainted by the unlawful arrest.
Arcila, 788 S.W.2d at 591.
Today, the majority also agrees appellant was illegally arrested. Maj. op. pg. 360. However, the majority concludes that “it was not necessary that the appellate court separately decide whether the taint of illegality was attenuated_” Maj. op. pg. 359. The majority relies on Brick v. State, 738 S.W.2d 676 (Tex.Cr.App.1987), however, that reliance is misplaced. In Brick we concluded:
... We hold that before it can be determined that evidence derived from a war-rantless but consensual search following an illegal arrest is admissible, it must first be found, by clear and convincing evidence, not only that the consent was voluntarily rendered, but also that due consideration of the additional factors listed above militates in favor of the conclusion that the taint otherwise inherent in the illegality of the arrest has dissipated.
Id. at 681. The majority’s holding today conflicts not only with Brick, supra, but also with Reyes, Juarez, and Miller, 736 S.W.2d 643 (Tex.Cr.App.1987).
Furthermore, if we are to establish a policy of deference, we should defer to the Court of Appeals’ finding that the attenuation issue was either raised or necessary to disposition of the case. As previously mentioned, the Court of Appeals considered whether appellant's consent was tainted, Arcila, 788 S.W.2d at 591, and the majority concedes consideration of the issue was reasonable.
[Although appellant cast his complaint on appeal in terms of voluntariness, the factual context in which it was embedded seemed also to call for some assessment of the degree to which his consent might have been induced by illegal police activity ... The Dallas Court of Appeals did, in fact, analyze the problem that way.
Maj. op. pg. 359. The majority should respect the finding by the Court of Appeals that the issue was raised and necessary to the disposition of the case as that finding was reasonable and supported by the record in this case.
The majority discusses the importance of not second-guessing the courts of appeals. “So long as it appears that ... [courts of appeals] have discharged that duty conscientiously by impartial application of pertinent legal doctrine and fair consideration of the evidence, it is our duty in turn to respect their judgments.” Maj. op. pg. 360. We should practice what we preach, defer to the finding of the Court of Appeals and address the merits of the attenuation issue.
Finally, even if the Court of Appeals was not obligated to separately address the attenuation issue, once the Court undertook to perform the analysis, it was obliged to do so correctly. Pursuant to Tex.R.App. Pro. 200(a) this Court has the authority to review the decision of the Court of Appeals. Consequently, we have the authority to consider appellant’s claim that the Court of Appeals’ attenuation analysis was erroneous.
II. ATTENUATION ANALYSIS
A.
In Juarez v. State, 758 S.W.2d 772 (Tex. Cr.App.1988), we adopted the four factors analysis in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), to determine the admissibility of evidence derived from a consensual search subsequent to an illegal detention.3 Juarez, 758 S.W.2d at 780. See also, Miller, 736 S.W.2d at 650 and Reyes, 741 S.W.2d at 731. The four factors are:
1. Whether Miranda warnings were given;
2. The temporal proximity of the arrest and the consent;
3. The presence of intervening circumstances; and
4. The purpose and flagrancy of police misconduct.
However, the Court of Appeals did not utilize those four factors. Rather the Court of Appeals considered nine factors in addition to appellant’s illegal arrest. Arci-*366la, 788 S.W.2d at 591. The majority states that appellant’s “only basis for complaint here is that the Dallas Court of Appeals somehow managed to get it wrong.” Maj. op. pg. 360. The Court of Appeals obviously “got it wrong” by not following our holdings in Reyes, Juarez and Miller. To hold otherwise is to ignore our own precedent. Because the attenuation issue was both raised before and erroneously resolved by the Court of Appeals, we should remand the case to the Court of Appeals for a correct attenuation analysis. See, Juarez, 758 S.W.2d at 785 (Clinton, J., dissenting).
B.
I believe a correct attenuation analysis would show the following:
1.
It is undisputed the police gave appellant Miranda warnings in Spanish and appellant appeared to understand them. Although the giving of Miranda warnings is not dispositive with regard to taint dissipation, the warnings are a consideration. The giving of Miranda warnings militates in favor of attenuation.
2.
The second factor is the temporal proximity of the illegal arrest to the consent. The record shows that appellant was arrested immediately after the police entered his home. After giving appellant Miranda warnings, the officers told appellant they suspected drugs were on the premises. Appellant orally consented to a search and, ten minutes later, signed a written consent to search. Arcila, 788 S.W.2d at 590. Lack of a significant amount of time between an arrest and consent does not, in itself, preclude a finding of attenuation. See, Juarez, supra at 781, citing United States v. Rodriguez, 585 F.2d 1234 (5th Cir.1978), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), and United States v. Wellins, 654 F.2d 550 (9th Cir. 1981). However, it is significant that appellant’s consent was given so soon after his illegal arrest. The proximity of the illegal arrest to the consent militates against attenuation.
3.
The third factor relates to intervening circumstances. The only possible intervening circumstances were the officers advising appellant of his rights and appellant expressing his desire to protect his home from the effects of an unauthorized search.4 Absent some indication, in the record, that these circumstances served to break the chain of events between appellant’s illegal arrest and his consent, the circumstances are insufficient to attenuate the taint from appellant’s illegal arrest. If anything, appellant’s concern for his home militates against a finding of attenuation. Therefore, this factor militates against a finding of attenuation.
4.
The last factor to be considered is the flagrancy of police misconduct. Appellant’s arrest was illegal, and the record indicates a strong police presence at the scene of appellant’s arrest: one officer had his gun drawn when appellant opened the door, and a police helicopter hovered over the residence. Arcila, 788 S.W.2d at 590. Finally, the record does not clearly establish why the officers asked to search appellant’s house for drugs; the record does not reveal a connection between the drugs and appellant’s arrest for conspiracy to commit murder. The record reflects the officers wanted to take advantage of the arrest situation in order to search for the drugs. This falls into the category of cases in which the arrest had a “quality of purposefulness,” and the consent was sought to justify a search for evidence unrelated to the basis for the arrest. See, Brown, 422 U.S. at 605, 95 S.Ct. at 2262, 45 L.Ed.2d at 428.
Thus, the record shows the officers lacked probable cause or exigent circumstances justifying a warrantless arrest, they made a strong showing of police force, *367and there was no connection between the arrest and the drugs the officers sought when seeking appellant’s consent to search. The flagrancy of police misconduct militates strongly against attenuation of taint.
This attenuation analysis shows the taint of the illegal arrest permeated appellant’s consent. Therefore, appellant’s consent was not freely and voluntarily given, and the evidence obtained from the search of appellant’s home should have been suppressed.
III. MISAPPLICATION OF MERAZ and MEEKS
The majority refers to Meraz v. State, 785 S.W.2d 146 (Tex.Cr.App.1990), for the proposition that courts of appeals are the final arbiters of fact questions. Maj. op. at 360. That reference is incorrect. In Mer-az we held the courts of appeals were the final judges of fact questions on issues upon which the defendant bears the burden of proof.
We now join our brethren on the Texas Supreme Court and conclude that the “factual conclusivity clause,” within Art. V, Sec. 6, operates to limit our jurisdiction and confers conclusive jurisdiction on the courts of appeals to resolve questions of weight and preponderance of the evidence adequate to prove a matter that the defendant must prove.
Meraz, 785 S.W.2d at 154.
It has been the established law of this State for more than sixty years that the State bears the burden of proving the consent was freely and voluntarily given. Frazier v. State, 119 Tex.Crim. 217, 43 S.W.2d 597, 600 (1931). See also, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Since the State has the burden of proof, Meraz is wholly inapplicable and I dissent to any interpretation of Meraz that implies that courts of appeals have final factual say on matters beyond those which the defendant must prove.
Second, the majority cites Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985), for the proposition that “voluntariness of consent is a fact question.” While that statement was made in Meeks, it was made in a different context. In Meeks we adopted the “totality of the circumstances” voluntariness test rather than the “fruits of the poisonous tree” doctrine in consent to search cases. See Juarez, 758 S.W.2d at 776. In that context we held: “The question of whether a consent to search was “voluntary” is a question of fact to be determined from the totality of all the circumstances.” Meeks, 692 S.W.2d at 510.
Consent to search cases necessarily involve a question of fact and a question of law. Stephenson v. State, 494 S.W.2d 900, 904 (Tex.Cr.App.1973) (citing Hoover v. Beto, 439 F.2d 913 [5th Cir.1971]). To hold otherwise would effectively insulate consent issues from appellate review. However, the fact questions should be resolved by the trial court and “we will accept the trial court’s finding unless it is clearly erroneous.” Juarez, 758 S.W.2d at 779. To hold as the majority does today, is tantamount to saying we had no authority to address the consent to search issues in Meeks, Reyes, Juarez or Miller, because the courts of appeals had previously resolved the fact questions therein. The majority cannot seriously argue such an interpretation of Meeks.
IV. CONCLUSION
The majority proclaims “[o]ur principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications.” While the majority “would not be at all surprised to find that appellant’s consent was actually involuntary in this case” the majority refuses to address the merits of appellant’s ground for review. This position may be appropriate, even commendable, in some circumstances; however, the position is elitist in this case because the Court of Appeals has wholly failed to provide appellant with a correct attenuation analysis under Brown. Moreover, by misinterpreting the “factual conclusivity clause” of Art. V, § 6 and Meeks, the majority fails to discharge its duty as caretaker of Texas law and, at the same time, surrenders, to the courts of appeals, a large portion of our jurisdiction.
*368Even though the Court of Appeals failed to conduct a correct attenuation analysis, the majority describes the assessment of this case as “exemplary.” Op. pg. 361. While heaping such praise on the Court of Appeals, the majority sub silentio overrules those cases where we specifically adopted the Brown factors for a taint attenuation analysis. See, Reyes, Juarez, and Miller. The majority describes the Court of Appeals’ opinion as “[a] thorough review of federal and state decisional law.” Op. pg. 361. However, that “thorough review” failed to mention Brown, other than in a “string cite,” nor did the Court of Appeals mention Reyes or Juarez. The primary duty of this Court is to supervise the intermediate appellate courts. In my view, the majority abdicates its supervisory duty by placing its stamp of approval on an opinion that fails to follow the explicit holdings of this Court. How can the majority place its stamp of approval on an analysis which fails to follow our precedent? Such action is not “caretaking” and most certainly does not “promote the fair administration of justice.”
Finally, we must ask ourselves what purpose will be served by this opinion. After today, criminal defendants must separately brief and argue that the consent was involuntary and that the consent was tainted by the illegal detention. How does this new requirement promote the fair administration of justice? As previously noted, the State has not complained it was “blindsided” by appellant’s attenuation argument. Rather the State addressed the merits of appellant’s ground for review. So what does the majority accomplish today raising and resolving an issue neither briefed nor argued by the parties? What is to be gained by erecting yet another artificial procedural hurdle? The only thing gained is the ability to avoid our responsibility to address the merits of appellant’s ground for review.
For the foregoing reasons I respectfully dissent.
MALONEY, J., joins this opinion. MILLER, J., joins this opinion with the following note: I note that attenuation was not mentioned, topside or bottom, in the appellant’s brief on direct appeal. Nonetheless, the court of appeals addressed attenuation, and we agreed, by granting this PDR, to review their opinion. Therefore, I join part I of Judge BAIRD’s opinion.. Unless otherwise indicated all emphasis herein is supplied by the author.
. All of these principles are thoroughly discussed and accompanied by relevant decisional authority in Reyes v. State, 741 S.W.2d 414 (Tex. Cr.App.1987), and Juarez v. State, 758 S.W.2d 772 (Tex.Cr.App.1988).
. Brown concerned admission of a confession after an illegal arrest.
. Officer J.M. Castillo testified that appellant asked the officers to please not tear up his home because he was renting the house and wished for the house to remain intact. S.F., pg. 22.