           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. PD-0823-14



                              THE STATE OF TEXAS

                                          v.

                        JOHN BERRY JACKSON, Appellee



           ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE ELEVENTH COURT OF APPEALS
                         MITCHELL COUNTY

      Y EARY, J., delivered the opinion of the Court in which K ELLER, P.J., and
K EASLER, H ERVEY, A LCALA, R ICHARDSON and N EWELL, JJ., joined. H ERVEY, J., filed
a concurring opinion in which K EASLER, R ICHARDSON, and N EWELL, JJ., joined.
M EYERS, J., filed a dissenting opinion. J OHNSON, J., concurred in the result.

                                    OPINION

      Law enforcement officers, suspecting Appellee of drug trafficking, placed a global

positioning system (GPS) tracking device on his car in an attempt to ascertain when and

where he was obtaining his supply. They monitored his movement as he traveled at speeds

exceeding the posted speed limit. They independently verified that he was speeding by
                                                                             JACKSON — 2

pacing his car in their own unmarked vehicles. Later, another officer who was aware of the

narcotics investigation, verified by radar that Appellee was speeding and pulled him over for

that traffic offense. Without ever issuing Appellee a speeding citation, the officers obtained

his consent to search his car and discovered a quantity of methamphetamine in the trunk. A

short time later Appellee confessed that it was his.

       The State prosecuted Appellee for possessing methamphetamine with intent to deliver.

Appellee moved to suppress both the methamphetamine and his confession. The trial court

held that both were rendered inadmissible, pursuant to Article 38.23(a) of the Texas Code

of Criminal Procedure, because the search was accomplished through the installation and

monitoring of the GPS tracker. It granted Appellee’s motion to suppress. T EX. C ODE C RIM.

P ROC. art. 38.23(a).

       Rejecting the State’s argument that the independent verification of Appellee’s

speeding offense constituted an “intervening circumstance” that attenuated the taint of the

illegal search, the Eleventh Court of Appeals affirmed the trial court’s ruling. State v.

Jackson, 435 S.W.3d 819, 827-31 (Tex. App.—Eastland 2014). We granted the State

Prosecuting Attorney’s (“SPA”) petition for discretionary review to examine its contention

that, in so holding, the court of appeals misapplied State v. Mazuca, 375 S.W.3d 294 (Tex.

Crim. App. 2012). We will reverse.

                                     BACKGROUND

       In late November of 2011, Billy Sides, an investigator with the 32nd Judicial District
                                                                                     JACKSON — 3

Attorney’s Office in Mitchell County, arranged for a confidential informant to make two

controlled purchases of methamphetamine in Colorado City. Sides personally watched as

Appellee delivered the contraband from a Dodge Charger. On the basis of that information

and more, Sides sought a court order, pursuant to Article 18.21, Section 14, of the Texas

Code of Criminal Procedure, authorizing him to install and monitor a mobile tracking device

on the Charger. T EX. C ODE C RIM. P ROC. art. 18.21, § 14. The judge of the 32nd Judicial

District signed such an order on December 2, 2011, and a GPS tracking device was installed

on December 6th.1 Sides had programmed the device to alert him on his cell phone if the

Charger left Colorado City. On December 12, 2011, Sides received such an alert. He began

to monitor the Charger via the GPS tracking device as it moved toward the Dallas/Fort Worth

Metroplex, which Sides had been told was the source of Appellee’s supply of

methamphetamine. Eventually the Charger stopped for about two hours in a residential

neighborhood in Mesquite, outside of Dallas. When the Charger began its return trip to

Colorado City, Sides drove an unmarked vehicle to Taylor County, located the Charger, and

began to follow it back to Mitchell County. At this point he was able to recognize that

Appellee was driving the Charger.



       1
          Such orders were authorized by statute upon a showing of “reasonable suspicion that . . .
criminal activity has been, is, or will be committed[.]” TEX . CODE CRIM . PROC. art. 18.21, §
14(c)(5)(A). Sides’s affidavit seeking the court order for installation and use of the mobile tracking
device presented facts from which he averred that reasonable suspicion existed, but it did not purport
to provide probable cause. The court order accordingly found no more than “reasonable suspicion
to believe that the installation and utilization of a mobile tracking device . . . will produce evidence
of a felony[.]”
                                                                                    JACKSON — 4

       Sides had already been able to tell from the GPS tracking device that Appellee was

consistently traveling at three to four miles per hour over the posted speed limit.2 He verified

this information by pacing the Charger in his own vehicle. As they approached Mitchell

County, Sides contacted Deputy Sheriff Gary Clark, who had also been involved in the

narcotics investigation.3 Sides asked Clark to pull Appellee over for speeding. Before doing

so, Clark also verified, using radar, that Appellee was traveling three to four miles per hour

over the posted speed limit.

       Sides arrived at the scene of the traffic stop almost immediately. He heard Appellee

orally grant Clark consent to search the Charger within a few minutes of the stop. A search

of the trunk uncovered two ounces of methamphetamine. Appellee was immediately arrested

and taken to the police station.4 Admonished of his rights, Appellee readily admitted in a


       2
           As the court of appeals noted, “[a]n officer who was unaware of the [narcotics]
investigation stopped [Appellee] for speeding near Six Flags in Arlington.” Jackson, 435 S.W.3d
at 823. That officer cited Appellee but did not arrest him.
       3
         Clark did not testify at the hearing on the motion to suppress, and Sides did not testify that
Clark was involved in the narcotics investigation. But in Sides’s application for installation of the
mobile tracking device, which was sworn to and admitted into evidence at the suppression hearing,
he indicated that Clark was involved in the controlled purchases of methamphetamine from
Appellee.
       4
           Sides testified that they did not linger long “in the field”:

               It wasn’t very long. Long enough to just to find the dope. And then we
       brought the vehicle in. We had multiple officers there. I believe we brought his
       vehicle into the police department and took him into the interrogation room. I mean
       it was fast. We didn’t dwell out on the highway at all.

Thus, it appears that both Appellee’s consent to search the Charger and his confession that the
methamphetamine was his came quite soon after the roadside stop.
                                                                               JACKSON — 5

recorded interview that he had consented to the search of the Charger and that he had

purchased the methamphetamine “in Dallas” for resale.5

       Appellee was indicted for possession of methamphetamine with intent to deliver in

an amount weighing four grams or more but less than 200 grams, a first degree felony. T EX.

H EALTH & S AFETY C ODE §§ 481.102(7), 481.112(d). He filed a motion to suppress and the

trial court held a hearing. After the hearing, the parties agreed to, and the trial court entered

an order endorsing, the following written findings of fact:

       1.     An affidavit for the installation and use of a mobile tracking device
              pursuant to Article 18.21 § 14, Texas Code of Criminal Procedure, was
              presented to the 32nd District Court Judge on December 2, 2011.

       2.     The order authorizing the installation of a mobile tracking device was
              signed on December 2, 2011, and on December 6, 2011, an electronic
              tracking device was installed on the light blue 2006 Dodge Charger,
              bearing license plate BW1V825, being used by the Defendant, John
              Berry Jackson, Jr[.] in Mitchell County, Texas.

       3.     On December 12, 2011, law enforcement used the tracking device to
              track the Defendant’s vehicle from Mitchell County, Texas, to
              Mesquite, Texas, and back again.

       4.     The Defendant’s movements in the car were closely monitored by law
              enforcement, and very soon after crossing the line back into Mitchell
              County, the Defendant was stopped for speeding.

       5.     The Defendant gave verbal consent to law enforcement to search his
              vehicle.

       6.     The Defendant’s car was searched, and when methamphetamines were
              found, the Defendant was arrested.


       5
         Although we have highlighted the salient facts, we nevertheless recommend the court of
appeals’s exhaustive and well rendered recitation. Jackson, 435 S.W.3d at 822-24.
                                                                                      JACKSON — 6

The agreed order also included a finding of fact (although it was designated a “conclusion

of law”) that “[a] warrant was not obtained by law enforcement prior to installation and use

of the mobile tracking device on [Appellee’s] vehicle.”

       The trial court granted Appellee’s motion to suppress, concluding that the warrantless

search here was unconstitutional. The trial court relied on United States v. Jones, 132 S.Ct.

945 (2012), in which the United States Supreme Court declared that the physical intrusion

necessary to install such a tracking device, taken together with the subsequent monitoring of

the vehicle using that device, constituted a “search” for Fourth Amendment purposes. The

trial court rejected the State’s argument that any taint from the illegal use of the GPS tracking

device was attenuated by the officers’ verification that Appellee was speeding before they

pulled him over.6 Accordingly, the trial court suppressed “all information gathered by law

enforcement, including statements of the Defendant, from the time law enforcement installed

the mobile tracking device[.]”7 The State appealed. T EX. C ODE C RIM. P ROC. art. 44.01(a)(5).


       6
           The prosecutor argued:

       The intervening circumstances where the testimony that you addressed yourself, Your
       Honor, you stated that there was a radar indication that he was speeding. In addition,
       Mr. Jackson, Jr., stated later in his interrogation that he was speeding, and so he
       doesn’t deny that that occurred. The entire time they were following him, there’s
       what’s called pacing, and the vehicle was pacing his speeds. So, there were plenty of
       indications that he was violating the law, which is all that’s required for a traffic stop.
       7
          In adopting the parties’ agreed conclusions of law, the trial court reasoned that, “[a]side
from the information gathered from the mobile tracking device, law enforcement would not have
known where the Defendant was, would not have had reason to intercept the Defendant’s vehicle,
and therefore did not have probable cause to search the Defendant’s vehicle.” (Emphasis added.)
It might have been more germane to conclude that, without the information provided by the GPS
device, law enforcement would not have been in a position independently to observe and stop
                                                                                     JACKSON — 7

       The court of appeals affirmed. Jackson, 435 S.W.3d at 831. It agreed with the trial

court that the State’s use of the GPS tracking device constituted an illegal search, concluding

that it violated the Fourth Amendment for two reasons: 1) it occurred in the absence of a

warrant, and 2) it was based upon a finding of reasonable suspicion rather than probable

cause. Id. at 826.8 The court of appeals next rejected the State’s argument that the officers’

independent verification of Appellee’s speeding offense and Appellee’s consent to the search

constituted intervening circumstances for purposes of an attenuation-of-taint analysis. Id. at

829-30.9 Instead, the court of appeals determined that there were no intervening

circumstances between the illegal search and the obtaining of the contraband and

confession—or at least no circumstances that were not themselves a product of the primary



Appellee for speeding, thus providing a legitimate opportunity to seek his consent to search the
Charger (since, with consent, the officers did not need probable cause), which in turn led to his arrest
and confession. This was essentially what the court of appeals later held in affirming the trial court’s
ruling. See Jackson, 435 S.W.3d at 829 (“Deputy Clark’s stop of Jackson for speeding was closely
connected to the officers’ use of the GPS device. The planned stop stemmed from data gathered by
the use of the GPS device; it did not result from a wholly separate observation by Deputy Clark.”)
(internal quotation marks omitted).
       8
         In its petition for discretionary review, the SPA does not now contest that the search
involving the GPS tracking device was conducted without a warrant and in the absence of a
magistrate’s determination of probable cause.
       9
         Not every Fourth Amendment violation results in the suppression of evidence. Mazuca, 375
S.W.3d at 300. Evidence is not subject to the exclusionary rule simply because the police would not
have discovered it “but for” the Fourth Amendment violation. Id. The question is whether the
evidence was obtained “by exploitation of” the Fourth Amendment violation “or instead by means
sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963)). Factors to be considered in determining whether evidence must
be suppressed include “[t]he temporal proximity of the arrest and [obtaining of the evidence], the
presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official
misconduct[.]” Id. at 302 (quoting Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
                                                                                  JACKSON — 8

illegality. See id. at 829, 830. Finding no intervening circumstances, and following this

Court’s lead in State v. Mazuca, 375 S.W.3d at 306-07, the court of appeals relied heavily

on the temporal proximity factor of the Brown v. Illinois10 attenuation-of-taint analysis to

“conclude that the discovery of the methamphetamine and [Appellee’s] statements to the

officers were not sufficiently attenuated from the illegal GPS search to purge the taint of the

illegality.” Jackson, 435 S.W.3d at 830-31.

       The SPA now challenges the court of appeals’s heavy emphasis on the temporal

proximity factor. The SPA argues that the court of appeals erred to conclude that the

officers’ verification of Appellee’s speeding infraction did not constitute an intervening

circumstance.11 Because there was an intervening circumstance, the SPA maintains, the court

of appeals should have focused more on the third attenuation-of-taint factor, namely, whether

the conduct of the officers was purposeful or in flagrant disregard of the law. The court of

appeals acknowledged that the officers believed the GPS monitoring was lawful at the time

and that “[t]he officers did not intend to conduct an illegal search.” Id. at 830. The SPA

argues that, consistent with the approach we announced in Mazuca, this Court should now

rely on the third factor, which, the court of appeals conceded, “weighs in favor of the

State[,]” id., to hold that the taint of the illegal GPS tracking device was sufficiently


       10
            422 U.S. at 603-04.
       11
            The SPA does not expressly argue that the court of appeals also erred to hold that
Appellee’s consent was not an intervening circumstance. We therefore limit our review to whether
the court of appeals erred to hold that the verification of Appellee’s speeding did not constitute a
sufficient intervening circumstance to attenuate taint.
                                                                             JACKSON — 9

attenuated that the contraband and confession should both have been admitted. We granted

the petition for discretionary review in order to address these contentions. T EX. R. A PP. P.

66.3(c).

                                        ANALYSIS

       In Jones, the Supreme Court held that “the Government’s installation of a GPS device

on a target’s vehicle, and its use of the device to monitor the vehicle’s movements,

constitute[d] a ‘search.’” 132 S.Ct. at 949. The Court emphasized that neither the intrusion

involved in the initial installation of the GPS tracking device nor the subsequent monitoring

of the vehicle’s movements could alone constitute a Fourth Amendment search; it was the

combination of the trespass “conjoined with . . . what was present here: an attempt to find

something or to obtain information.” Id. at 951, n.5.

       Consistent with Jones, it appears here that the installation of the GPS tracking device

and its subsequent employment to monitor Appellee’s whereabouts constituted a search for

Fourth Amendment purposes. The SPA does not presently contest that this search was illegal.

Without the tracking device, the officers in this case would not have been alerted to the fact

that Appellee had left Mitchell County or that he was speeding. They would also not have

known to put themselves in a position to verify his unlawful speeding as a justification for

pulling him over. In the strictest sense, then, Appellee’s detention and his attendant consent

to search, the discovery of the contraband, and Appellee’s admission of ownership, were all

but/for products of the primary illegality, which was the warrantless installation of, and
                                                                              JACKSON — 10

subsequent monitoring of Appellee with, the GPS tracking device.

        But neither the Fourth Amendment exclusionary rule nor our own statutory

exclusionary rule, embodied in Article 38.23(a) of the Code of Criminal Procedure, requires

the suppression of evidence that was not “obtained” as a result of some illegality. Johnson

v. State, 871 S.W.2d 744, 750-51 (Tex. Crim. App. 1994); State v. Daugherty, 931 S.W.2d

268, 270 (Tex. Crim. App. 1996); T EX. C ODE C RIM. P ROC. art. 38.23(a). Moreover, not every

but/for product of police illegality will constitute evidence “obtained” from that illegality for

either federal or state exclusionary rule purposes; evidence is not subject to suppression, in

other words, “simply because it would not have come to light but for the illegal actions of

the police.” Mazuca, 375 S.W.3d at 300 (quoting Wong Sun v. United States, 371 U.S. 471,

487-88 (1963)). Instead, as we said in Mazuca,

        the more apt question is whether, granting establishment of the primary
        illegality, the evidence to which instant objection is made has been come at by
        exploitation of that illegality or instead by means sufficiently distinguishable
        to be purged of the primary taint.

Id. (internal citations and quotation marks omitted). In this case, the question boils down to

whether the verification by police of Appellee’s speeding through “pacing” and radar

constituted a “means” of obtaining the contraband that was “sufficiently distinguishable”

from the illegal installation and monitoring with the GPS device “to be purged of the primary

taint.” Id.

        In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court addressed the factors

involved in determining whether a confession should have been suppressed as the product
                                                                               JACKSON — 11

of an illegal arrest. The Court rejected the notion that preliminary Fifth Amendment warnings

and the apparently voluntary nature of the confession could, by themselves, serve to attenuate

the taint of the primary illegality. Id. at 601-03. The Court declared that “[t]he temporal

proximity of the arrest and confession, the presence of intervening circumstances, and,

particularly, the purpose and flagrancy of the official misconduct” all must be considered.

Id. at 603-04. This Court has long applied these three Brown v. Illinois factors for

determining attenuation of taint, both for purpose of the Fourth Amendment exclusionary

rule (as we must) and also for the purpose of our own statutory exclusionary rule, provided

for in Article 38.23(a) of the Code of Criminal Procedure. See Johnson, 871 S.W.2d at 750-

51, and cases cited therein; T EX. C ODE C RIM. P ROC. art. 38.23(a).

       Mazuca did not involve a confession; we therefore had no cause to inquire whether

Miranda warnings were administered or whether Mazuca had voluntarily spoken to the

police.12 The question in Mazuca was, rather, how to apply the remaining Brown factors in

a case involving an illegal detention followed immediately by the discovery of an outstanding

arrest warrant and the seizure of evidence in the course of a search of Mazuca’s person

pursuant to an execution of that warrant. We declined to hold that the discovery of the arrest

warrant could serve categorically to attenuate the taint of the illegal initial detention that led

to the discovery of that warrant. 375 S.W.3d at 306. Such a holding, we observed, would

overemphasize the intervening-circumstance factor “to the ultimate detriment to the goal of



       12
            375 S.W.3d at 302; Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                                   JACKSON — 12

deterrence that animates the exclusionary rule.” Id. Instead, we held, the presence or absence

of such an intervening circumstance dictates which of the two remaining Brown factors

should carry greater significance. Id. We summarized:

       When police find and seize physical evidence shortly after an illegal stop, in
       the absence of the discovery of an outstanding arrest warrant in between, that
       physical evidence should ordinarily be suppressed, even if the police
       misconduct is not highly purposeful or flagrantly abusive of Fourth
       Amendment rights. Under this scenario, temporal proximity is the paramount
       factor. But when an outstanding arrest warrant is discovered between the
       illegal stop and the seizure of physical evidence, the importance of the
       temporal proximity factor decreases. Under this scenario, the intervening
       circumstance is a necessary but never, by itself, wholly determinative factor in
       the attenuation calculation, and the purposefulness and/or flagrancy of the
       police misconduct, vel non, becomes of vital importance.

Id. at 306-07.13



       13
           It almost goes without saying that when police officers unlawfully detain an individual and
only then discover an outstanding arrest warrant, they may—indeed, they should—arrest him
pursuant to that warrant. Nothing about the fact of the illegal detention that led to the discovery of
the outstanding warrant should adversely impact the State’s ability to prosecute the individual for
the prior offense that gave rise to that warrant. But, any evidence that comes to light only as a result
of that illegal detention, and that is relevant to an offense other than the prior offense for which the
arrest warrant issued, will unquestionably be subject to suppression under the exclusionary rule of
the Fourth Amendment and Article 38.23 of the Code of Criminal Procedure—unless, of course, the
taint of the illegal detention is attenuated as judged by application of the Brown v. Illinois factors.
See, e.g., State v. Moralez, 300 P.3d 1090, 1100 (Kan. 2013) (“[A]n arrest made pursuant to an
outstanding warrant is not invalidated by a prior unlawful detention.”); State v. Bailey, 338 P.3d 702,
712 (Ore. 2014) (“Where a person’s identity is made known to the police during an unlawful
detention, and he or she is determined to be the subject of a valid arrest warrant, the police may
lawfully arrest the person and conduct a lawful search incident to the arrest. However, the Brown
framework nevertheless applies to the separate determination whether the causal connection between
the unlawful detention and the discovery of evidence in the search incident to arrest has been
sufficiently attenuated so as to dissipate the taint of the illegality.”). Whether evidence recovered
following both the initial illegal detention and the discovery of the arrest warrant may also be subject
to suppression in the prosecution of the offense for which the arrest warrant issued is an open
question that we need not address today.
                                                                             JACKSON — 13

       Of course, the primary illegality in the instant case was not, as in Mazuca, Appellee’s

initial roadside detention. Here, the primary illegality was the on-going search via the GPS

tracking device that enabled the police to make the observations they relied upon to justify

Appellee’s initial roadside detention. Did the officers’ independent verification of Appellee’s

speeding constitute an intervening circumstance? If so, this would trigger Mazuca’s emphasis

on the third Brown factor, the purposefulness and flagrancy of official misconduct, which

weighs heavily in favor of attenuation. Or was the officers’ verification of Appellee’s

speeding (even as the search was on-going) itself the tainted product of the primary illegality?

In that event, the court of appeals properly focused on the first Brown factor, temporal

proximity. Emphasis on the temporal proximity factor favors the conclusion that Appellee’s

roadside consent to search and his subsequent station-house admission were indeed

“obtained” by exploitation of the illegal GPS tracking device.

       We agree with the SPA that the independent verification of Appellee’s speeding in

this case was just as much of an “intervening circumstance” as was the discovery of the valid

arrest warrant in Mazuca. It is true that, in this case, the primary illegality—the illegal

installation and monitoring of the GPS tracking device—was still taking place at the time the

officers verified Appellee’s speeding. But the illegal detention that was the primary illegality

in Mazuca did not wholly occur at a discrete point in time either. While it was certainly

initiated at a discrete point in time, the illegal roadside detention in Mazuca was also still

underway—and still illegal—at the later point in time at which the detaining officers
                                                                                 JACKSON — 14

discovered the valid arrest warrant. And yet, we still regarded that discovery as an

“intervening circumstance.” Mazuca, 375 S.W.3d at 309. So long as the “circumstance”

“intervenes” between the inception of the primary illegality and the later discovery of

evidence that is alleged to be “fruit of the poisonous tree,” we hold that a reviewing court

may appropriately regard it as an “intervening circumstance” factor in the attenuation-of-taint

analysis.14

       Moreover, the SPA is correct that, given such an intervening circumstance, Mazuca

dictates that a reviewing court should emphasize the third Brown factor, which asks whether

the police purposefully and flagrantly disregarded Appellee’s Fourth Amendment rights. 375

S.W.3d at 306-07. The court of appeals conceded that there was no flagrant police

misconduct. Jackson, 435 S.W.3d at 830. We agree. At the time Investigator Sides obtained

the court order to install the GPS tracking device on Appellee’s car, the Supreme Court had

not yet declared that the installation and monitoring of such a device constitutes a search for

Fourth Amendment purposes. A Texas statute expressly permitted peace officers to install

       14
            Indeed, in Brown itself, the Supreme Court regarded the administration of Miranda
warnings as a kind of relevant (albeit never, by itself, dispositive) intervening circumstance even
though the illegal seizure that led up to Brown’s confession (a warrantless arrest made without
probable cause) was still underway at that time. Brown, 422 U.S. at 591-96. “[T]he Miranda
warnings, alone and per se, cannot always make the act [of confession to the police] sufficiently a
product of free will to break, for Fourth Amendment purposes, the causal connection between the
illegality and the confession. They cannot assure in every case that the Fourth Amendment violation
has not been unduly exploited. * * * The Miranda warnings are an important factor, to be sure, in
determining whether the confession is obtained by exploitation of an illegal arrest. But they are not
the only factor to be considered.” Id. at 603. Thus, the Supreme Court treated the giving of Miranda
warnings as an event occurring after the inception of the primary illegality and before obtaining a
confession that might help establish that the confession was not, for Fourth Amendment purposes,
the product of that primary illegality.
                                                                                    JACKSON — 15

and use such devices upon sworn application to a district judge providing reasonable

suspicion of criminal activity for which the device will likely produce material information.

T EX. C ODE C RIM. P ROC. art. 18.21, § 14(a) & (c). Sides executed a sworn application

pursuant to this statutory provision that met all of the qualifications for the issuance of a

court order, and the judge of the 32nd Judicial District Court issued it. Nothing in the record

suggests that Sides had any inkling, before Jones, that adhering to the statutory scheme

would not suffice to render installation and use of the GPS tracking device in all things legal.

He had no particular reason to believe or suspect that the statutory criteria of “reasonable

suspicion” would prove to be (because a “search” for Fourth Amendment purposes ordinarily

requires more) constitutionally deficient. Thus, the primary illegality in this case was not the

product of a flagrant disregard of Appellee’s constitutional rights. There was no evidence

Sides harbored any such intent.

        It is undeniable that Sides’s use of the GPS tracking device was “purposeful,” in the

sense that he expressly hoped to obtain evidence in his narcotics investigation against

Appellee. But he did not knowingly violate Appellee’s constitutional rights in that pursuit.

He also perpetrated no further constitutional violation in conducting his investigation.15 Thus,

Sides’s purposefulness in stopping Appellee for speeding did nothing to exacerbate the

initial—inadvertent—constitutional breach. Law enforcement officers conducting the same


        15
          Even if Sides instigated Appellee’s traffic stop on a pretext, hoping to obtain consent to
search the car, such a pretext stop is not itself unconstitutional so long as there is an objective basis
in the record to support it. Arkansas v. Sullivan, 532 U.S. 769 (2001); Whren v. United States, 517
U.S. 806 (1996); Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995).
                                                                             JACKSON — 16

narcotics investigation in the absence of an illegal GPS tracking device would have been

entitled to follow Appellee’s car for as long as it took to observe him commit a traffic offense

and conduct a similar stop. The parties have agreed and the record supports the proposition

that, once Appellee was stopped, he voluntarily consented and confessed. Neither the consent

nor the confession was the result of any incremental illegality beyond the non-flagrant

primary illegality of installing and monitoring the GPS tracking device in the absence of a

warrant obtained on the basis of probable cause. Simply put, Sides never operated beyond

the bounds of what he reasonably believed to be perfectly acceptable, even routine, police

conduct.

                                       CONCLUSION

       Both the second and third Brown factors favor the conclusion that the taint of the

unconstitutional GPS tracking device search had dissipated by the time Appellee consented

to the search of his vehicle and confessed that the methamphetamine discovered therein were

his. We reverse the judgment of the court of appeals and remand the cause to the trial court

for further proceedings consistent with this opinion. Mazuca, 375 S.W.3d at 310.




DELIVERED:            July 1, 2015
PUBLISH
