           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

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       The majority concludes that the taint of the illegal GPS device used to track

Appellee’s movements had dissipated by the time Appellee consented to a search of his

vehicle. Because the search of Appellee’s vehicle was a direct result of the unconstitutional

tracking, I cannot agree with the majority’s decision.

       Even though the majority is hesitant to label it as such, this stop was obviously made

on a pretense with the officers hoping to be able to search the car. However, even though
                                                                         Jackson dissent - Page 2

there was consent to search, there was never an untainted reason to request such consent in

the first place. If you were to consider this as a random stop, there is nothing in the record

that indicates that a search of the car would have been justified. There was nothing

suggesting that illegal items would be found in the car, nor did the officers discover any

outstanding warrants. Therefore, there existed no reason, independent of the illegal GPS

tracking, for the officers to ask for consent to search the car.

       What has actually taken place here would be as if the officers had entered a moped

in the Tour de France, and then the majority justified the officers’ triumph by saying that

their cyclist had not taken performance-enhancing drugs.1 The cyclist’s clean drug test is not

an intervening circumstance that removes the taint of the illegal moped, just as verification

of Appellee’s speeding does not remove the taint of the illegal GPS tracking. I believe the

consent to search Appellee’s vehicle and his subsequent confession about the

methamphetamine are tainted by the unconstitutional GPS tracking by the officers. For this

reason, I would affirm the judgment of the court of appeals and, therefore, I respectfully

dissent.

                                                           Meyers, J.
Filed: July 1, 2015
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       1
       For all you non-cycling enthusiasts, a moped is a bicycle with a gasoline engine and is
comparable to what we have here–an automobile with a tracking device.
