dissenting.
I respectfully dissent. Today, the majority adopts a rule of weighted constitutional rights. I quote the majority:
The fact Russell was only 16 years old does not preclude a finding that her consent and confessions were voluntary. Russell said she was 18 years old and acted like it. She was no stranger to the criminal justice system, on adult felony probation with another felony charge pending. Having cut a neighbor’s telephone wires in anger and then beaten an old woman to death with a hammer, Russell was not the sort of person one would expect to be easily intimidated, even by police.
Therefore, according to the majority, only “nice” people are afforded a full measure of constitutional rights. The “not-so-nice” among us forfeit their constitutional rights by being wrong-doers. Thus, the majority reasons that because appellant acted like an eighteen year old instead of a sixteen year old; that because appellant was no stranger to the criminal justice system; that because appellant was on adult probation with another felony charge pending; that because appellant had cut a neighbor’s telephone wires in anger; and that because appellant had then beaten an old woman to death with a hammer she could not be intimidated by the police as a matter of law. Hence, to the majority, the more wicked the accused, the less chance of a constitutional violation. Consequently, the majority sends each person to a police investigation with a “sliding scale” of constitutional rights. By the majority’s reasoning, the police could have beaten appellant in order to obtain a confession, but not the upright reader of this opinion.
I disagree with the majority’s Olympian approach. All constitutional guarantees extend both to the rich and the poor alike, to those with notorious reputations, as well as those who are models of upright citizenship. No regime under the rule of law could comport with constitutional standards that drew such distinctions. Smith *930v. United States, 423 U.S. 1303, 1307-08, 96 S.Ct. 2, 4-5, 46 L.Ed.2d 9 (Douglas, Circuit Justice 1975). The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). Thus, I cannot accept the majority’s lofty attitude toward determination of a person’s constitutional rights. I disagree that a person’s anti-social background determines the extent of the person’s constitutional rights. I disagree that a person’s anti-social background measures the standard of police conduct toward the person during a police investigation. In my view, the Constitutions of the United States and of the State of Texas afford the same rights to both saint and sinner. With this difference which the majority expressed, I turn to the disposition I would make of appellant’s points of error which are dispositive of this appeal.
In her first point of error, appellant contends that the trial court erred in denying her motion to suppress her statements to law enforcement authorities. In a related second point of error, appellant contends that the trial court erred in denying her motion to suppress clothing seized from appellant's residence and the results of tests performed thereon, as well as a hammer found as a result of the search. This court reversed appellant’s conviction. Russell v. State, 672 S.W.2d 583 (Tex.App.— Dallas 1984) (Russell I). The Court of Criminal Appeals reversed this court’s judgment and remanded the cause to this court for further consideration of the admissibility of evidence resulting from the consent to search. Russell v. State, 717 S.W.2d 7, 11 (Tex.Crim.App.1986) (Russell II). Further, the Court of Criminal Appeals instructed us to decide two questions in determining the admissibility of evidence resulting from the consent to search:
The issue remains, however, whether appellant’s consent was, in fact, freely and voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 248 [93 S.Ct. 2041, 2058, 36 L.Ed.2d 854] (1973); Bumper v. North Carolina, 391 U.S. 543, 548 [88 S.Ct. 1788, 1791, 20 L.Ed.2d 797] (1968). Necessarily, the issue of the admissibility of appellant’s confession also remains. If the consent to search was involuntary, then the confession might be the product of an illegal search. See Brown v. Illinois, 422 U.S. 590 [95 S.Ct. 2254, 45 L.Ed.2d 416] (1975). Because the Court of Appeals did not decide these issues, we must remand this cause to the Court of Appeals for further consideration.
Russell II, 717 S.W.2d at 11. The sequence of events was as follows: the consent to search, the search, the confession. We described this sequence and background information in Russell I, 672 S.W.2d at 585. Under the Court of Criminal Appeals’ instructions we must decide whether appellant’s consent to search was freely and voluntarily given and, if not, whether appellant’s confession might be the product of an illegal search. In my view, the police search of appellant’s residence violated her fourth amendment rights. To my mind, the appellant's subsequent oral confession to the police was the tainted fruit of the illegal search. Therefore, appellant’s confession and other fruits of the search were erroneously admitted in evidence. Accordingly, I would reverse and remand.
Our prior opinion adequately sets out the facts and I will not repeat them here. Russell I, 672 S.W.2d at 585-86. Thus, I turn to the first determination required of us by the Court of Criminal Appeals — whether appellant’s consent was freely and voluntarily given. In light of Russell II, I must make that determination on the basis that appellant was not under arrest or “seized” before she gave her consent. Russell II, 717 S.W.2d at 11. Nevertheless, when the State seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed. 2d 797 (1968). The State’s burden is not *931satisfied by showing a mere submission to a claim of lawful authority. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983).
In the present case, I conclude that the consent was not obtained on the person's own familiar territory, but followed inherently coercive tactics. See Schneckloth, 412 U.S. at 247, 93 S.Ct. at 2058. As we pointed out in Russell I, “[t]he pursuit and return by the police would be strong notice to appellant that henceforth she had best do as the police told her to do. Under those circumstances, appellant might well decide that if the police want to search, then by all means she had better let them do so.” Russell I, 672 S.W.2d at 588. Consider the facts of appellant’s pursuit and return:
About 7:00 o’clock a.m. on January 19, police officer Graves, a homicide investigator, transported appellant from her residence to the polygraph room at the police station. Graves heard from the polygraph examiners that appellant had run out of the polygraph room and was running down Main Street, a public street in the City of Dallas. Graves instructed the polygraph examiners “to go get her.” The polygraph examiners did so. The record is silent on the details of the police pursuit of appellant. Appellant was returned to Graves’ office crying and upset. Graves described appellant as “hysterical.” Graves obtained cigarettes and a cold drink for appellant and “let her calm down.” At 9:30 o’clock a.m., shortly after appellant was returned to Graves’ office, appellant gave King a signed consent to search her residence. Graves gave appellant a Miranda warning after she was returned to his office and before she signed the consent.
Russell I, 672 S.W.2d at 585. The Court of Criminal Appeals found no arrest or seizure in these facts. Russell II, 717 S.W.2d at 11. Nevertheless, the Court of Criminal Appeals expressed no opinion on whether the pursuit and return constituted inherently coercive tactics resulting in the consent to search.
Indeed, nothing in the record negates inherently coercive tactics on the part of police.
Nothing occurred between appellant’s hysterical return to Graves and the consent other than the possibility of a cigarette, a cold drink and the opportunity to calm down. The record is silent as to whether appellant smoked a cigarette, drank a cold drink or actually calmed down and returned to a non-hysterical state before she signed the consent.
Russell I, 672 S.W.2d at 588. Thus, on this record as a whole, I cannot say that the sixteen-year-old female appellant was acting from an independent act of free will when consent to search her residence was taken under the facts of the present case. In my view, the State has failed to establish that appellant’s consent was “freely and voluntarily given.” Bumper, 391 U.S. at 548, 88 S.Ct. at 1792. It follows, and I would so hold, that in the present case appellant’s consent to search was not freely and voluntarily given.
I turn then to the question of whether the confession might be the product of an illegal search. In connection with this inquiry, the Court of Criminal Appeals refers us to Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Russell II, 717 S.W.2d at 11. In Brown, the Supreme Court identified factors to be considered in determining whether a confession has been obtained by exploitation of an illegal arrest. Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62; Russell I, 672 S.W.2d at 587. Therefore, I read Russell II to instruct this court that the factors identified in Brown are relevant and are to be considered in deciding whether the confession in the present case might be the product of an illegal search.. Hence, I proceed on that basis.
Although appellant received a Miranda warning just before she signed the consent, the warning “cannot assure in every case that the Fourth Amendment violation has *932not been unduly exploited.” Brown, 422 U.S. at 603, 95 S.Ct. at 2261. The question of free will must be answered on the facts of each case. No single fact is dispositive. Brown, 422 U.S. at 603, 95 S.Ct. at 2261. In Brown and as reiterated in Dunaway the Supreme Court identified factors to be considered in determining whether a confession has been obtained by exploitation of an illegal arrest. Dunaway, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979); Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62. As summarized by our Court of Criminal Appeals in Green v. State, 615 S.W.2d 700, 708 (Tex.Crim.App.), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed. 2d 258 (1981), those factors are:
(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.
In the present case there was a Miranda warning. The other three factors, however, are unfavorable to the State. We know appellant’s trip to the police station began about 7:00 a.m. The record does not tell us the elapsed time between 7:00 a.m. and appellant’s pursuit and return to Graves’ office. We know that appellant signed the consent at 9:30 a.m. We know that Graves received the lab report resulting from the search between 11:00 a.m. and noon. We know that Graves immediately advised appellant of the results of the report. We know that appellant first confessed to Graves at 12:20 p.m. From the record as a whole, I conclude that the consent and later confession were in close proximity. Moreover, no circumstances intervened. Nothing occurred between appellant’s consent and confession other than receipt of the lab report resulting from the search. With respect to official misconduct, I conclude that a sixteen-year-old who is voluntarily in a police station, and not under arrest, ought to be free to leave if he or she wishes to do so. The pursuit and return by the police would be strong notice to appellant that henceforth she had best do as the police told her to do. Under those circumstances appellant might well decide that if the police want a confession, then by all means she had better give them a confession. In the present case, considering all the Brown factors as a whole, I cannot say that the sixteen-year-old female appellant was acting from an independent act of free will when she confessed. Instead, I conclude that appellant’s confession was the product of an illegal search.
Accordingly, I would hold that the search of appellant’s residence was unlawful. Appellant’s confession followed the unlawful search. A confession subsequent to an unlawful search is a fruit of the search and, therefore, inadmissible. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963); Barber v. State, 611 S.W.2d 67, 69 (Tex. Crim.App.1981). Therefore, I would hold that the trial court erred in denying appellant’s motion to suppress her January 19 statements. Consequently, I would sustain appellant’s first point of error. It follows and, I would so hold, that the clothing seized from appellant’s residence, the results of tests performed on that clothing and the hammer found as a result of the search were illegally obtained in violation of appellant’s fourth amendment rights. Consequently, I would hold further that the trial court erred in denying appellant’s motion to suppress clothing seized from her residence and the results of tests performed on that clothing, and a hammer found as a result of the search. Thus, I would sustain appellant’s second point of error.
Before concluding this opinion, I attempt an explanation of the sequence of appellant’s points of error. On remand we ordered re-briefing. To accommodate to the issues we must decide on remand, appellant understandably reversed contentions and arguments under her original first two points of error. Nevertheless, to maintain *933the original order of things, I address the issues on remand in the order initially advanced and argued by appellant in her original brief under her original first two points of error. Therefore, when I would sustain appellant’s first point of error, I would also sustain appellant’s second point of error in her brief on remand. Likewise, when I would sustain appellant’s second point of error, I would also sustain appellant’s first point of error in her brief on remand.
For the reasons stated, I would reverse and remand.