dissenting.
This Court has held that it may not affirm the denial of an appellant’s motion to suppress based on a theory that was not raised in the trial court. Sedani v. State, 848 S.W.2d 314, 318-21 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd) (op. on reh’g). Justice Hutson-Dunn affirms the appellant’s conviction on a theory not presented to the trial court, i.e., consent once removed. I would confine our review to the issues as presented to the trial court, as did the State’s brief on appeal. Upon considering only the issues presented to the trial court, I believe this case should be reversed and remanded. I dissent.
Legality of Arrest
In point of error one, the appellant contends the officers’ entry into the appellant’s apartment to make a warrantless arrest was not justified because the appellant did not consent to the officers’ entry, and there were no exigent circumstances. The State disagrees; it claims the officers had exigent circumstances to forcibly enter the appellant’s apartment without a warrant and arrest the appellant.1
Exigent circumstances will justify a war-rantless entry into a residence to: (1) render aid or assistance to persons whom the officers reasonably believe are in need of aid or assistance; (2) protect the officers from persons whom they reasonably believe to be present and armed and dangerous; and (3) prevent the destruction of evidence or contraband. McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App.1991); Covarrubia v. State, 902 S.W.2d 549, 554 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd). The record shows, and the State concedes, the only exigent circumstance potentially applicable here is number (3), to prevent destruction of the cocaine before the officers had a chance to seize it.
When proving the possible destruction of evidence as an exigent circumstance, the State must show the police could have reasonably believed the evidence would be destroyed or removed before they could obtain a search warrant. McNairy, 835 S.W.2d at 107; Covarrubia, 902 S.W.2d at 554. Factors affecting the reasonableness of the officer’s actions include: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the reasonable belief contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a warrant is sought; (4) information indicating the possessors of the contraband are aware the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics trafficking. McNairy, 835 S.W.2d at 107; Covarrubia, 902 S.W.2d at 554.
On cross-examination, Officer Redman related his reasons for believing the cocaine was about to be destroyed. First, Redman *34testified he knew cocaine is water soluble and could be disposed of easily. Second, Redman testified there were numerous sinks in the residence. Third, Redman testified as to the primary reason he believed the appellant was about to destroy the cocaine:
I guess the primary factor would be my contact in dealing with [the appellant]. His attitude that the statements, direct statements that he made to me regarding the length of time he had been doing business, never been caught, refused to be caught, his ability to run the show, et cetera, would be the primary — his attitude. Also understanding ... the manner in which cocaine can be destroyed, the availability of water as far as the different sinks in the residence, understanding the compound or the make-up of that cocaine, hydrochloride, all lead to the decision.
I would hold this evidence by itself does not establish the officers acted under exigent circumstances. Redman conceded on cross-examination he did not see the appellant or Griffin trying to destroy the cocaine, nor did they specifically state any intention to destroy the cocaine. Neither would I find Griffin’s slam of the door to avoid arrest disposi-tive because it occurred as the officers were approaching the apartment to execute the arrest.
Police officers cannot justify a warrantless search based on exigent circumstances they deliberately create. United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986); United States v. Thompson, 700 F.2d 944, 950 (5th Cir.1983). For example, in Munoz-Guerra, DEA agents knocked on the back door of the patio of a condominium of the defendant, a person suspected of selling drugs. 788 F.2d at 297. When the defendant came to the door, the agents ordered him to put his hands on the glass panes of the door, then reach down and open the door. Id. The door was locked. Id. The defendant indicated he would get the key from another room. Id. Because the agents thought the defendant would get a gun or attempt to destroy evidence, the agents kicked the door in and entered the condominium. Id. Once inside, the agents conducted a security cheek and found marijuana, cocaine, and two pistols. Id. The Fifth Circuit held the agents knew once they made their presence known by knocking on the patio door, they would be required to conduct a security search of the house and restrain the inhabitants. The court said:
Warrantless entry was thus a foregone conclusion the instant the agents revealed themselves to Munoz-Guerra at the patio door.
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Our past opinions have consistently emphasized that without reason to believe that a criminal suspect was aware of police surveillance, the mere presence of firearms or destructible, incriminating evidence does not create exigent circumstances.
Id. at 298. The court held the agents had created the exigent circumstances, reversed the ruling on the motion to suppress, and remanded the ease for the defendant to re-plead. Id. at 298-99. In Thompson, the Fifth Circuit remanded the motion to suppress to the trial court for specific findings on whether the agents deliberately created the exigent circumstances. Thompson, 700 F.2d at 944, 952-53.
The State also contends the appellant’s attempt to flush the cocaine down the toilet, along with the gun shot, constituted exigent circumstances that justified a warrantless entry into the appellant’s apartment. I disagree. Both of these events occurred after the police entered the appellant’s apartment. Therefore, the police did not have knowledge of these facts when deciding to arrest the appellant without a warrant and force their way into his residence.
I would hold there were no exigent circumstances to justify the forced entry into the appellant’s apartment without a warrant to arrest the appellant. By giving a “bust” signal for a warrantless arrest, Officer Red-man created exigent circumstances that made the warrantless entry into the apartment a foregone conclusion. See Munoz-Guerra, 788 F.2d at 298. Rather than giving a “bust” signal for a warrantless arrest, Red-man could have completed the sale in his undercover capacity and gone to a magistrate to obtain an arrest warrant while other offi-*35eers maintained surveillance of the apartment. I would hold the trial court abused its discretion by admitting into evidence the kilogram of cocaine in the bathroom toilet that officers seized incident to the appellant’s illegal arrest.
I would sustain point of error one.
Consent to Search
In point of error two, the appellant contends the trial court committed reversible error by refusing to suppress evidence obtained under the authority of a consent to search given under duress and immediately after an illegal arrest. I agree with the majority that the trial court did not err by concluding the State proved by clear and convincing evidence the appellant knowingly and voluntarily consented to the search of his apartment.
Attenuation
Even though the appellant’s consent was voluntary, because the arrest was illegal, the court must determine whether the consent was sufficiently attenuated from the arrest to permit admission of the evidence seized pursuant to the consent to search. See Arcila v. State, 834 S.W.2d 357, 359 (Tex.Crim.App.1992). An illegal stop does not automatically invalidate a voluntary consent to search; conversely, a voluntary consent to search does not automatically validate a search that follows an illegal stop. Juarez, 758 S.W.2d at 779. The relevant question is whether the consent to search was obtained by the exploitation of an illegal arrest or detention or by means sufficiently distinguishable to be purged of the primary taint. Id. at 778. Evidence obtained pursuant to a voluntary consent to search is inadmissible if the consent followed an illegal arrest and there is insufficient attenuation to dissipate the taint of the arrest. See Brick v. State, 738 S.W.2d 676, 681 (Tex.Crim.App.1987); Martinez v. State, 792 S.W.2d 525, 529 (Tex.App.—Houston [1st DistJ 1990, no pet.). The burden is on the State to prove attenuation by clear and convincing evidence. Boyle v. State, 820 S.W.2d 122, 132 (Tex.Crim.App.1989); Brick, 738 S.W.2d at 681.
In conducting an attenuation analysis, the Court of Criminal Appeals has adopted the general factors set forth in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). These factors are:
(1) the giving of Miranda2 warnings;
(2) the temporal proximity of the arrest and search;
(3) the presence of intervening circumstances; and
(4) the purpose and flagrancy of the officers’ conduct.
Reyes v. State, 741 S.W.2d 414, 431 (Tex.Crim.App.1987); Brick, 738 S.W.2d at 678-79; Martinez, 792 S.W.2d at 529. The court has also set forth a more specific set of factors that partially overlap with the Brown factors. These factors are:
(1) proximity of the consent to the arrest;
(2) whether the seizure brought about police observation of the particular object they sought consent to search;
(3) whether the illegal seizure was flagrant police misconduct;
(4) whether the consent was volunteered rather than requested by the detaining officers;
(5) whether the arrestee was made fully aware of the fact he could decline to consent and thus prevent an immediate search of the car or residence; and
(6) whether the police purpose underlying the illegality was to obtain consent.
Boyle, 820 S.W.2d at 131-32; Brick, 738 S.W.2d at 680-81.
The Giving of Miranda Warnings
Of the four prominent factors, the Miranda warnings are the least important when dealing with a fourth amendment challenge. See DeVoyle v. State, 471 S.W.2d 77, 80 (Tex.Crim.App.1971) (Miranda warnings, although not necessary in consent to search case, are good police practice); Martinez, 792 S.W.2d at 529. This is because the Miranda warnings do not cover a defendant’s rights to refuse to consent to search. Martinez, 792 S.W.2d at 529. Nevertheless, the *36record shows Officer DeBlanc read the appellant his Miranda warnings before the appellant signed the consent to search. Further, DeBlanc told the appellant he had the right to refuse to consent to the search. While this is not required by law, it is evidence the accused gave a valid consent. Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991); Martinez, 792 S.W.2d at 529. This factor weighs in the State’s favor.
Temporal Proximity
Only 15 minutes passed between when the appellant was arrested and when he consented to the search of his residence. However, a short intervening period of time does not by itself require the evidence be suppressed for lack of sufficient attenuation. Juarez, 758 S.W.2d at 781. Temporal proximity is not a strong determining factor of attenuation, and some eases have characterized it as the least determinative factor involved. Boyle, 820 S.W.2d at 132; Juarez, 758 S.W.2d at 781; Bell v. State, 724 S.W.2d 780, 788 (Tex.Crim.App.1986). A shorter lapse of time will be tolerated when the circumstances of the detention are less severe. See Rawlings v. Kentucky, 448 U.S. 98, 107-08, 100 S.Ct. 2556, 2563, 65 L.Ed.2d 633 (1980); Juarez, 758 S.W.2d at 782.
Although the temporal proximity factor weighs in the appellant’s favor, it is difficult to give it much weight by itself without considering the remaining factors. Juarez, 758 S.W.2d at 782. Specifically, the more important consideration is whether a significant intervening circumstance occurred during the passage of time that would allow the court to infer the taint of the illegal arrest was purged. See Boyle, 820 S.W.2d at 132; Jones v. State, 746 S.W.2d 281, 285 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd).
Intervening Circumstances
Intervening circumstances between an illegal arrest and the seizure or procurement of the challenged evidence include: (1) taking the defendant before a magistrate before the evidence is obtained, Jones v. State, 833 S.W.2d 118, 125 (Tex.Crim.App.1992) (confession case); (2) arresting the defendant on a valid charge shortly after the claimed illegal arrest and detention, Little v. State, 758 S.W.2d 551, 566 (Tex.Crim.App.1988) (confession case); (3) permitting the defendant to consult privately with someone after the arrest, such as a companion or attorney, Juarez, 758 S.W.2d at 782 (consent to search case); and (4) releasing the defendant after the arrest or informing him he is free to leave, Maixner v. State, 753 S.W.2d 151, 156 (Tex.Crim.App.1988) (confession case); see also Jones, 746 S.W.2d at 286 (laundry list of intervening circumstances that might be sufficient to purge taint of illegal arrest). I find no intervening circumstances in the record of this case. Therefore, this factor weighs in the appellant’s favor.
Police Misconduct
Police misconduct is one of the most important factors to consider in an attenuation analysis. Maixner, 753 S.W.2d at 157; Bell, 724 S.W.2d at 789; Self v. State, 709 S.W.2d 662, 668 (Tex.Crim.App.1986). In my opinion, this factor includes many of the specific items listed in Boyle and Brick, such as whether the seizure brought about police observation of the particular object they sought consent to search and whether the police purpose underlying the illegality was to obtain consent. I must determine whether the illegal arrest had a quality of purposefulness and whether it was an expedition for evidence undertaken in the hope something might turn up. Brown, 422 U.S. at 605, 95 S.Ct. at 2262; Boyle, 820 S.W.2d at 133; Juarez, 758 S.W.2d at 783.
All fourth amendment violations are unreasonable, but there are practical differences between violations that dictate different outcomes. Bell, 724 S.W.2d at 789. The point at which the taint can be said to have dissipated is related, in the absence of other controlling circumstances, to the nature of the taint. Brown, 422 U.S. at 610, 95 S.Ct. at 2264 (Powell, J., concurring in part); Bell, 724 S.W.2d at 789. The clearest indications of attenuation should be required when the police misconduct is most flagrantly abusive. Bell, 724 S.W.2d at 789. Flagrant misconduct includes an arrest effectuated as a pretext for collateral objectives or an arrest that is unnecessarily intrusive on personal privacy. Brown, 422 U.S. at 611-12, 95 S.Ct. at 2265 (Powell, J., concurring in part); Bell, 724 S.W.2d at 789.
*37The record in this case shows the appellant did not volunteer the consent to search his residence; rather, the appellant gave his consent in response to Officer Redman’s request. Further, the arrest in this case was intrusive of the appellant’s personal privacy because the police forcibly entered his residence. However, the record does not show the police arrested the appellant as a pretext to get his consent to search. Officer Redman saw a kilogram of cocaine in the appellant’s residence during the undercover buy, and he called the raid team to arrest the appellant and seize the kilogram because he feared the kilogram would be destroyed. Although I have concluded Officer Redman did not have sufficient basis to believe exigent circumstances justified the warrantless entry into the appellant’s residence, I find no evidence in the record Officer Redman gave the “bust” signal as a pretext for obtaining a consent to search from the appellant. Rather, Red-man’s request for consent to search was made in response to the appellant’s statement after his arrest that there were drugs in the apartment other than the kilogram of cocaine the police discovered in the toilet. In summary, concerning the fourth factor, the police conduct here, although improper based on the record before us, does not shock the conscience. The appellant himself concedes this factor probably weighs in the State’s favor.
Summary of Attenuation Factors
In this case, the Miranda warning and police misconduct factors weigh in the State’s favor, and the temporal proximity and intervening circumstances factors weigh in the appellant’s favor. Although this is a close case, I would conclude the State did not sustain its burden of proving attenuation by clear and convincing evidence. Otherwise inadmissible evidence should not be made admissible simply because the police misconduct was not too reprehensible. Bell, 724 S.W.2d at 790 (confession case); see also Jones, 746 S.W.2d at 286 (confession ease). To do so would subject the protection of constitutional rights to the collective conscience of this Court. Bell, 724 S.W.2d at 790-91. Accordingly, I would hold the drugs seized pursuant to the appellant’s consent to search were the fruit of an illegal arrest and should not have been admitted into evidence at trial.
Harmless Error Analysis
Upon reaching this opinion, I would then consider whether the trial court’s erroneous admission of the evidence was harmful. Rule 81(b)(2) of the Rules of Appellate Procedure provides an appellate court must reverse when an error occurs in the trial court unless it determine beyond a reasonable doubt the error and its effects made no contribution to the conviction or punishment. Gipson v. State, 844 S.W.2d 738, 741 (Tex.Crim.App.1992); Tex.R.App.P. 81(b)(2). When conducting a harmless error analysis, the court’s role is to determine whether a rational trier of fact could have reached a different result if the error and its effects had not occurred. Harris v. State, 790 S.W.2d 568, 588 (Tex.CrimA.pp.1989). An appellate court normally determines whether an error was harmful to the defendant by considering several factors set forth in Harris, including the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, its probable collateral implications, and whether declaring the error harmless would encourage the State to repeat it with impunity. Id. at 587. However, if the record shows on its face the error complained of contributed to the defendant’s conviction, an in-depth analysis is unnecessary. See Gipson, 844 S.W.2d at 741.
The inadmissible evidence of which the appellant complains was the basis of his conviction. Therefore, one obviously cannot determine beyond a reasonable doubt the admission of this evidence made no contribution to the appellant’s conviction.
I would reverse the judgments of the trial court and remand the causes for further proceedings consistent with this opinion.
ANDELL, J., joins this dissenting opinion.
. The State did not argue the "consent once removed" theory before the trial court.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).