Opinion filed September 24, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00277-CR
                                    __________

                    THE STATE OF TEXAS, Appellant
                                         V.
              MIKENZIE RENEE RODRIGUEZ, Appellee

                     On Appeal from the 35th District Court
                             Brown County, Texas
                       Trial Court Cause No. CR22-398

                                   OPINION
      Mikenzie Renee Rodriguez was indicted for possession of a controlled
substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). She
filed a pretrial motion to suppress in which she challenged the search of her college
dorm room and any statements she made in connection with her arrest. The trial
court granted her motion, and the State appealed. We affirm.
                                 Background Facts
      Appellee was a student at Howard Payne University, a private university in
Brownwood. Appellee lived on campus in Veda Hodge Hall. In September 2012,
Miriam Mackey and Catherine Mullaney, the resident assistants on duty, conducted
a room check of Appellee’s dorm room. They conducted this room search pursuant
to their duties as resident assistants in accordance with the policies and procedures
of Howard Payne University for students living in on-campus housing. The room
check was not performed at the request of any law enforcement agency.
      Mackey and Mullaney found a baggie of marihuana in a trunk located in
Appellee’s room. Mackey and Mullaney contacted Nancy Pryor, the resident
director at Howard Payne University, to report this discovery. Pryor instructed
Mackey and Mullaney to thoroughly search the room. They subsequently found two
pills inside a box of matches and a marihuana pipe wrapped in a sock. They placed
the items in the middle of the floor of the dorm room. Pryor then called Howard
Payne University’s Department of Public Safety.
      Officer Robert Pacatte, with the Howard Payne University Department of
Public Safety, responded to the call. Pryor initially met Officer Pacatte at the
entrance to the dorm. He subsequently accompanied Pryor to Appellee’s dorm
room. Officer Pacatte stepped inside the dorm room and saw the items on the floor.
He did so without obtaining a search warrant or consent from either Appellee or her
roommate. Officer Pacatte took pictures of the items and spoke with Adrienne
Sanchez, Appellee’s roommate. Sanchez informed him that the items belonged to
Appellee.
      Officer Pacatte then contacted the Brownwood Police Department. The
Brownwood Police Department and the Howard Payne University Department of
Public Safety had an interlocal agreement concerning crimes committed on campus.
Corporal Aaron Taylor of the Brownwood Police Department responded to the dorm
                                          2
room. Appellee arrived at her dorm room later. She was given her Miranda1
warnings, and she admitted that the items were hers.
      Appellee filed a motion to suppress the evidence seized and any statements
made before, during, or after the search. The trial court held a hearing on the motion
and, after initially taking the matter under advisement, granted Appellee’s motion to
suppress.    The trial court subsequently entered written findings of fact and
conclusions of law.
                                           Analysis
      The State asserts four issues challenging the trial court’s ruling on the motion
to suppress. We note at the outset that the State has limited rights of appeal in
criminal cases. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West Supp. 2014). The
State is entitled to appeal an order of a court in a criminal case that grants a motion
to suppress evidence if jeopardy has not attached and if the elected prosecutor
certifies to the trial court that the appeal is not taken for the purpose of delay and
that the suppressed evidence is of substantial importance to the case.                Id.
art. 44.01(a)(5). The elected district attorney for Brown County personally signed
the notice of appeal filed in this case certifying the matters required to invoke this
court’s jurisdiction to review the trial court’s interlocutory order granting the motion
to suppress. See State v. Redus, 445 S.W.3d 151, 154–55 (Tex. Crim. App. 2014).
      A trial court’s ruling on a suppression motion is reviewed on appeal for an
abuse of discretion, with almost complete deference given to its determination of
historical facts, especially if those facts are based on an assessment of credibility and
demeanor. See Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013)
(citing Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). The same
deference is afforded the trial court with respect to its rulings on application of the


      1
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                                  3
law to questions of fact and to mixed questions of law and fact, if resolution of those
questions depends on an evaluation of credibility. Id. For mixed questions of law
and fact that do not fall within that category, a reviewing court may conduct a de
novo review. Id. We review de novo a trial court’s application of the law to the
facts. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Regardless of whether the trial
court granted or denied the motion, appellate courts view the evidence in the light
most favorable to the ruling. Wade, 422 S.W.3d at 666; State v. Woodard, 341
S.W.3d 404, 410 (Tex. Crim. App. 2011). If the trial court makes express findings
of fact, as the court did in this case, we review the evidence in the light most
favorable to the trial court’s ruling and determine whether the evidence supports
these factual findings. Valtierra, 310 S.W.3d at 447.
      In its first issue, the State argues that the trial court erred by granting
Appellee’s motion to suppress “when Appellee does not allege any wrongdoing on
the part of university officials who located and seized the evidence, because the
actions of law enforcement did not implicate the Fourth Amendment.” The State
contends that Officer Pacatte’s “action of stepping across the threshold of Appellee’s
dorm room and viewing the contraband laying exposed to view on the floor” did not
implicate the Fourth Amendment. The State argues that, “[o]nce university officials
located a controlled substance in Appellee’s room,” Appellee no longer had “a
subjective expectation of privacy that law enforcement would not be called to her
dorm room” that society would recognize as reasonable. The State suggests that we
should apply the analysis from State v. Hardy to conclude that Appellee could not
have had a reasonable, subjective expectation of privacy that law enforcement would
not be called in these circumstances. State v. Hardy, 963 S.W.2d 516, 523–24 (Tex.
Crim. App. 1997). The State also challenges the trial court’s express finding that


                                           4
the Howard Payne University Department of Public Safety and the Brownwood
Police Department conducted a search.
      We note at the outset that the State did not argue this theory at the suppression
hearing. Instead, the State argued that there was no state action because the resident
assistants were the actors that conducted the search. The State also argued that the
incriminating evidence was in plain view of Officer Pacatte upon his arrival at
Appellee’s dorm room. Nevertheless, the trial court entered written findings of fact
and conclusions of law that implicitly overruled the theory now advanced by the
State. These findings of fact and conclusions of law are as follows:

                                  Findings of Fact
             ....
             23. Howard Payne University Department of Public Safety and
      the City of Brownwood Police Department entered the residence of
      Adrienne Sanchez and [Appellee] when neither occupant was present
      and conducted a search that included – taking photographs of the room,
      investigating, and looking around the room. The officers who
      conducted the search seized items believed to be a controlled substance,
      paraphernalia, and marijuana.
            24. Neither Howard Payne University Department of Public
      Safety nor the City of Brownwood Police Department obtained consent
      from Adrienne Sanchez or [Appellee] to conduct a search for the
      purposes of a criminal investigation or prosecution.
             ....
                                Conclusions of Law
             1. [Appellee] and her roommate consented to search by the
      University officials in the furtherance of health and safety concerns by
      signing the University Housing Agreement, but did not waive their
      rights under the Fourth Amendment of the United States Constitution
      and the applicable provisions of the Texas Constitution to protection
      from unreasonable searches and seizures.
             ....
                                          5
      4. Officer Pacatte, as a licensed peace officer, was an officer of
the State and his action is therefore subject to the limitations of the
Fourth Amendment.
      ....
     6. Officer Pacatte did not have consent from [Appellee] or her
roommate to search the dorm room.
      ....
       13. Without a search warrant, consent, exigent circumstances, or
the plain view doctrine, Officer Pacatte’s actions constituted an
unreasonable search and seizure and therefore the evidence seized as a
result of that search should be suppressed.
       14. The issue before the Court in the hearing on the Motion to
Suppress was the action of the two certified Texas police departments,
Howard Payne University Department of Public Safety and the City of
Brownwood Police Department, in conducting a search of a residence
for the purposes of criminal prosecution in light of the protections
granted to individuals under the Fourth Amendment of the United
States Constitution and Article 1, Section 9 of the Texas Constitution.
U.S. Const. amend. IV; see also Tex. Const. art. I, § 9; Tex. Crim. Proc.
Code Ann. § 38.23(a) (West 2012).
      ....
       16. Consent to search could only have been given by [Appellee]
or Ms. Sanchez under the court generated doctrine of common
authority. A person with mutual use and joint access of the property is
said to have such common authority. Illinois v. Rodriguez, 497 U.S.
177, 181 (1990); see also U.S. v. Matlock, 415 U.S. 164, 171 (1974);
see also Morale v. Grigel, 422 F. Supp. 988, 997 (D.N.H. 1976). While
[Appellee’s] roommate had common authority and could have
consented to the search, she arrived after the initial entry of the officers
and even upon arrival was not asked for consent.
      17. The Court concludes that as a matter of law, two Texas police
departments, Howard Payne University Department of Public Safety
and the City of Brownwood Police Department, conducted a
warrantless search of the residence of [Appellee] without the existence


                                     6
      of any exigent circumstance, including plain view, and failed to obtain
      consent.
            18. The University acting by and through its Residence Hall
      Director, Nancy Pryor, had no authority to consent to or join in the
      police search for evidence of a crime under the circumstances of this
      case.
      The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. CONST. amend. IV.        The Fourth Amendment provides protection from
“unreasonable” searches and seizures by state actors. Hubert v. State, 312 S.W.3d
554, 560 (Tex. Crim. App. 2010). A search conducted without a warrant is generally
considered unreasonable. Id. Whether a search was reasonable under the Fourth
Amendment is a mixed question of law and fact. St. George v. State, 237 S.W.3d
720, 725 (Tex. Crim. App. 2007).
      For purposes of the Fourth Amendment, a “search” occurs when the
government violates a subjective expectation of privacy that society considers
objectively reasonable.    See Kyllo v. United States, 533 U.S. 27, 33 (2001).
However, the Fourth Amendment proscribes only governmental action, not action
by a private individual who is not acting as an agent of the government or with the
knowledge and participation of a government official. United States v. Jacobsen,
466 U.S. 109, 113 (1984). Even a wrongful search or seizure by a private citizen
does not deprive the government of the right to use evidence obtained from the
wrongful search. See Walter v. United States, 447 U.S. 649, 656 (1980).
      The State’s argument is premised on two contentions: (1) that Appellee no
longer possessed a subjective expectation of privacy that society is willing to
recognize as reasonable after the resident assistants found the contraband in her dorm
room and (2) that the officers’ entry into her dorm room did not constitute a search.
We disagree with both of these contentions.

                                          7
      We begin our analysis by addressing the “search” question. The entry into a
residence by police officers is a search for purposes of the Fourth Amendment.
Valtierra, 310 S.W.3d at 448. As noted by the Texas Court of Criminal Appeals in
Spring v. State, 626 S.W.2d 37, 41 (Tex. Crim. App. [Panel Op.] 1981):
             (P)hysical entry of the home is the chief evil against which the
      wording of the Fourth Amendment is directed, and (i)n terms that apply
      equally to seizures of property and to seizures of persons, the Fourth
      Amendment has drawn a firm line at the entrance to the house. Neither
      may that threshold be reasonably crossed without a warrant by police
      officers, nor may the locked door be opened by the landlord or his agent
      to permit them to do so, for to uphold such an entry, search and seizure
      without a warrant would reduce the (Fourth) Amendment to a nullity
      and leave (tenants’) homes secure only in the discretion of (landlords).
(alterations in original) (citations omitted) (internal quotation marks omitted).
Thus, the officers’ entry into Appellee’s dorm room constituted a search.
      We must next answer the question of whether Appellee had a subjective
expectation of privacy in her dorm room that society considers objectively
reasonable. This is a question of law we review de novo. Hardy, 963 S.W.2d at
523; Villarreal v. State, 935 S.W.2d 134, 146 (Tex. Crim. App. 1996); see Wade,
422 S.W.3d at 667; Valtierra, 310 S.W.3d at 447. Courts have held that “a student
who occupies a college dormitory room enjoys the protection of the Fourth
Amendment.” Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir. 1971); see also
People v. Superior Court, 49 Cal. Rptr. 3d 831, 848–49 (Cal. Ct. App. 2006). The
First Court of Appeals concluded that a student “had an expectation of privacy in his
dorm room and is thus afforded Fourth Amendment protection.” Grubbs v. State,
177 S.W.3d 313, 318 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). We agree
and accordingly conclude that Appellee enjoyed the same Fourth Amendment
protection from unreasonable searches and seizures in her dormitory room as would
any other citizen in a private home. See id.; see also People, 49 Cal. Rptr. 3d at 849.

                                           8
        There is no dispute that the resident assistants and Pryor had authority to
conduct the room check of Appellee’s dorm room under the authority of the various
provisions that Appellee agreed to in accepting to live in on-campus student housing.
Furthermore, there is no dispute that these individuals were not state actors. In
reliance upon Hardy, the State contends that the discovery of the contraband by the
dorm personnel diminished Appellee’s expectation of privacy concerning a
subsequent search by law enforcement. The defendant in Hardy was involved in an
automobile accident. Hardy, 963 S.W.2d at 517–18. Hospital personnel, that were
not government agents, drew the defendant’s blood and analyzed it to determine its
alcohol content for medical purposes. Id. A state trooper subsequently obtained the
test results with a grand jury subpoena. Id. The Court of Criminal Appeals
concluded that the defendant did not have a reasonable expectation of privacy in the
test results. Id. at 526–27. In reaching this holding, the court noted that the “person’s
interest in bodily integrity” was not an issue because the blood was obtained and
tested by medical personnel solely for medical purposes. Id.
        The analysis in Hardy is inapplicable to facts in this case. The physical
intrusion in Hardy in the form of withdrawing the defendant’s blood from his body
was performed by nongovernment actors. Id. at 517–18. In this case, the officers’
entry into Appellee’s dorm room constituted an actual, physical intrusion by
government agents. Additionally, the State’s contention that the discovery of
contraband by dorm personnel had the effect of reducing her subjective expectation
of privacy is not logical because there is no evidence that Appellee was aware that
dorm personnel had searched her room or that they had discovered contraband in her
room.
        The State also relies on Medlock v. Trustees of Indiana University to support
its position that Appellee no longer had a reasonable expectation of privacy.
Medlock v. Trustees of Ind. Univ., No. 1:11-CV-00977-TWP-DKL, 2011 WL
                                           9
4068453, at *5 (S.D. Ind. Sept. 13, 2011). Medlock is also distinguishable from this
case. Medlock involved an administrative proceeding with Indiana University rather
than a criminal prosecution. Id. at *1. Next, the officer in Medlock observed the
marihuana in plain view prior to entering the dorm room. Id. at *6. More
importantly, the officer in Medlock actually obtained a search warrant. Id. We do
not find that the State’s reliance on Medlock is persuasive in light of Grubbs. See
Grubbs, 177 S.W.3d at 318.
      Grubbs is a relatively recent Texas case dealing with the search of a college
dorm room. Id. at 316. A resident assistant received a complaint concerning the
odor of marihuana coming from the defendant’s dorm room. Id. University police
were contacted at the request of the resident assistant as he proceeded to the
defendant’s dorm room. Id. Police officers met the resident assistant in the hallway
outside of the defendant’s dorm room and confirmed that the odor was marihuana.
Id. After the inhabitants did not answer the door, the resident assistant entered the
dorm room with a master key. Id. The resident assistant spoke with the inhabitants
after entering the room. Id. The inhabitants of the dorm room then came to the
doorway whereupon they gave the officers consent to search the dorm room. Id.
      The court of appeals recognized that “a student who occupies a college
dormitory room enjoys the protection of the Fourth Amendment.” Id. at 318
(quoting Piazzola, 442 F.2d at 289). Accordingly, the court held that the defendant
had an expectation of privacy in his dorm room and was thus afforded Fourth
Amendment protection. Id. The court further recognized that the university’s
policies and procedures provided the resident assistant with “ample authority” to
enter the defendant’s dorm room. Id. at 319. The court ultimately concluded that
the campus police officers did not violate the defendant’s constitutional rights when
they entered his dorm room with his consent. Id. at 321.


                                         10
      Contrary to the State’s assertion that Appellee no longer had an expectation
of privacy in her dorm room after the discovery of the contraband by dorm personnel,
the critical inquiry in this case is the authority of the dorm personnel to consent to
the officers’ entry into the dorm room. One exception to the warrant requirement
applies when a person voluntarily consents to a search. Hubert, 312 S.W.3d at 560.
A third party may consent to a search of another’s property if the third party has
actual authority over the thing to be searched. Id. We examine the totality of the
circumstances to determine whether it is reasonable under the Fourth Amendment
for an officer to rely on the consent of another person to justify a warrantless search.
Id.
      The First Court of Appeals briefly touched upon this question in Grubbs by
referring to a line of cases in support of the position that a resident assistant may not
consent to an entry by police into a dorm room. 177 S.W.3d at 321 n.2. It was
unnecessary for the court in Grubbs to explore this concept because the resident
assistant was not the person that gave the officers consent to enter the dorm room—
the actual residents of the dorm room gave the officers consent to enter.
Accordingly, this case differs from the facts in Grubbs because the dorm personnel
were the individuals in this case who gave the officers consent to enter Appellee’s
dorm room. Despite the authority given to the dorm personnel to enter the dorm
room themselves, they simply did not have authority to give police officers consent
to enter Appellee’s dorm room. See Piazzola, 442 F.2d at 289–90; Commonwealth
v. McCloskey, 272 A.2d 271, 273 (Pa. Super. Ct. 1970). As stated by the Fifth
Circuit in Piazzola:
      [A] student who occupies a college dormitory room enjoys the
      protection of the Fourth Amendment. True the University retains broad
      supervisory powers which permit it to adopt the regulation heretofore
      quoted, provided that regulation is reasonably construed and is limited
      in its application to further the University’s function as an educational

                                           11
      institution. The regulation cannot be construed or applied so as to give
      consent to a search for evidence for the primary purpose of a criminal
      prosecution. Otherwise, the regulation itself would constitute an
      unconstitutional attempt to require a student to waive his protection
      from unreasonable searches and seizures as a condition to his
      occupancy of a college dormitory room. Clearly the University had no
      authority to consent to or join in a police search for evidence of crime.
442 F.2d at 289–90 (footnotes and citations omitted).
      The trial court did not err in concluding that Appellee had a reasonable
expectation of privacy in her dorm room and that the entry into her dorm room by
the officers of the Howard Payne University Department of Public Safety and the
Brownwood Police Department implicated her Fourth Amendment protections.
Additionally, the record supports the trial court’s findings of fact that the officers
entered Appellee’s dorm room without either her consent or the consent of her
roommate. Accordingly, we overrule the State’s first issue.
      In its second issue, the State challenges the trial court’s determination that the
evidence was not admissible under the plain view doctrine. The State contends that
Officer Pacatte had a right to be inside Appellee’s dorm room under the actual
authority or apparent authority of the dorm personnel after the contraband was
located. The State contends that, once Officer Pacatte was lawfully inside the dorm
room, he had the right to seize the contraband because it was in his plain view.
      Seizing contraband in plain view does not run afoul of the Fourth Amendment
because the seizure of property in plain view involves no invasion of privacy and is
presumptively reasonable. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.
2000). The plain view doctrine requires (1) that the law enforcement officers have
a right to be where they were and (2) that it is immediately apparent that the items
seized constitute evidence. Id. There is no disagreement that the items were
immediately incriminating upon observation. Officer Pacatte testified, and the trial
court found, that the items were evidence of a crime or contraband. The question is
                                          12
whether Officer Pacatte was lawfully in Appellee’s dorm room when he saw the
items on the floor. In this regard, Officer Pacatte testified, and the trial court found,
that he did not observe the contraband until he had entered Appellee’s dorm room.
      We have previously determined that dorm personnel did not have actual
authority to permit the officers to enter Appellee’s dorm room for the purpose of
conducting a criminal investigation. Accordingly, the trial court found that the plain
view doctrine is inapplicable from the perspective of actual authority because
officers did not “have a right to be where they were” when they observed the
contraband. With respect to the State’s apparent authority contention, this argument
was not made during the suppression hearing other than in the State’s closing
argument when the prosecutor stated, “And Ms. Pryor, as an official at the university,
would have had apparent authority to invite the officer in. That is something that
has not been at all addressed.”
      We review de novo the issue of whether a third party had apparent authority
to consent to a search of another’s property because this inquiry involves a mixed
question of law and fact. Hubert, 312 S.W.3d at 559–60. A third party’s actual
authority over the property is not a prerequisite for a valid consensual search. Id. at
560. Our law also recognizes that, in some circumstances, a valid consensual search
may occur when a third party has “apparent authority” over the property. Id. When
an officer has a reasonable but erroneous belief that a third party has actual authority
over the thing to be searched, apparent authority exists and the search may be
reasonable. Id. at 561. “Apparent authority is judged under an objective standard:
‘would the facts available to the officer at the moment warrant a man of reasonable
caution in the belief that the consenting party had authority over the premises?’”
Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011) (quoting Illinois v.
Rodriguez, 497 U.S. 177, 188 (1990)). It is the State’s burden to show by a
preponderance of the evidence that the person who consented to the search had
                                           13
apparent authority to consent. Hubert, 312 S.W.3d at 561–62. Consequently, the
State has the burden to show that the officer who conducted the search reasonably
believed, based on facts known to him at the time, that the consenting party had
authority over the property. Id.
      The State provided no evidence of apparent authority. The State specifically
argued that apparent authority was not addressed at all. The evidence established
that Officer Pacatte simply accompanied Pryor into Appellee’s dorm room without
any inquiry concerning her authority to permit his entry into the dorm room. We
conclude that the trial court did not abuse its discretion when it determined that Pryor
did not have apparent authority to consent to the search of Appellee’s room. We
overrule the State’s second issue.
      In its third issue, the State argues that the trial court erred when it applied the
exclusionary rule and suppressed the contraband and Appellee’s statements to
Corporal Taylor. The State contends that Appellee must prove that suppression of
the evidence would create deterrence in the future and that the deterrent value is
high. The State maintains that, “[i]n order for the deterrent value to be high, the
police must exhibit deliberate, reckless or grossly negligent disregard for Fourth
Amendment rights.” See Davis v. United States, 131 S. Ct. 2419, 2427 (2011) (citing
Hudson v. Michigan, 547 U.S. 586, 596 (2006)).
      The federal exclusionary rule is a deterrent sanction that bars the prosecution
from introducing evidence obtained in violation of the Fourth Amendment. Id. at
2423. The Texas statutory exclusionary rule is broader than the federal exclusionary
rule; the Texas rule applies to evidence that is obtained in violation of the federal
and state constitutions, United States laws, and Texas laws. See TEX. CODE CRIM.
PROC. ANN. art. 38.23 (West 2005); Wilson v. State, 311 S.W.3d 452, 458 (Tex.
Crim. App. 2010). Specifically, Article 38.23(a) of the Code of Criminal Procedure
provides that “[n]o evidence obtained by an officer or other person in violation of
                                           14
any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in evidence
against the accused on the trial of any criminal case.” CRIM. PROC. art. 38.23(a).
The primary purpose of Article 38.23(a) is to deter unlawful actions that violate the
rights of criminal suspects in the acquisition of evidence for prosecution. Wilson,
311 S.W.3d at 459.
      The “fruit of the poisonous tree” doctrine serves to exclude from evidence
both direct and indirect products of Fourth Amendment violations. Wong Sun v.
United States, 371 U.S. 471, 484 (1963); State v. Iduarte, 268 S.W.3d 544, 550 (Tex.
Crim. App. 2008). However, evidence is not classified as a fruit that must be
excluded merely because it would not have been discovered but for the violation.
Wong Sun, 371 U.S. at 487–88; Iduarte, 268 S.W.3d at 550. “Rather, the more apt
question in such a case 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.’” Wong Sun, 371 U.S. at 488 (quoting JOHN MACARTHUR MAGUIRE,
EVIDENCE OF GUILT 221 (1959)).
      The Court of Criminal Appeals recently addressed the exclusionary rule and
the factors to consider in applying the rule. State v. Jackson, 464 S.W.3d 724, 731–
33 (Tex. Crim. App. 2015). The court considered the temporal proximity between
the illegal search or seizure and the items to be excluded, the presence of any
intervening circumstances, and the “purpose and flagrancy of the official
misconduct.” Id. at 731 (quoting Brown v. Illinois, 422 U.S. 590, 603–04 (1975)).
However, the court did not say the burden rests with the defendant to prove any of
these factors. See id. The State has not cited, and we cannot find, any authority for
the proposition that a defendant carries the burden of proving the deterrent value.


                                          15
      Appellee had the initial burden of producing evidence to rebut the
presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). Appellee carried this burden once she established that the search
and seizure occurred without a warrant. Amador v. State, 275 S.W.3d 872, 878 (Tex.
Crim. App. 2009). The burden then shifted to the State to prove the reasonableness
of the search. Id. As discussed above, the State did not establish that the warrantless
search was justified under the law. Ford, 158 S.W.3d at 492.
      Appellee must also show that there was a causal connection between the
police officer’s violation of a law and the collection of evidence. Pham v. State, 175
S.W.3d 767, 772–74 (Tex. Crim. App. 2005). The burden then shifts back to the
State to either disprove Appellee’s evidence or raise an attenuation-of-taint argument
to demonstrate that the causal chain was broken. Id. The State has not asserted that
the attenuation doctrine should apply in this case, and we do not address it further.
      Here, there was a causal connection between the officer entering Appellee’s
dorm room and the seizure of evidence. Officer Pacatte was called to Appellee’s
dorm room because some contraband had been found. Officer Pacatte testified that
he had time to obtain a search warrant, but did not. Officer Pacatte simply entered
Appellee’s dorm room, seized the evidence, and then called the Brownwood Police
Department. Appellee has shown there was a causal connection between the Fourth
Amendment violation and the collection of evidence. Pham, 175 S.W.3d at 772–74;
see State v. Callaghan, 222 S.W.3d 610, 615–16 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d).
      Next, we consider the factors discussed in Jackson to determine whether the
trial court erred when it suppressed the contraband. Jackson, 464 S.W.3d at 731.
The State has not argued any intervening or attenuation-of-taint factors. Thus, the
absence of the intervening-circumstance factor dictates which of the remaining two
Brown factors should carry greater significance. Id. at 731–32 (citing State v.
                                          16
Mazuca, 375 S.W.3d 294, 306 (Tex. Crim. App. 2012)). “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.” Id. at 732 (quoting Mazuca, 375 S.W.3d at
306). When there is no intervening cause, the court considers the temporal proximity
factor to be the most important. Id.
      Emphasis on the temporal proximity factor favors the conclusion that the
search of Appellee’s dorm room, the seizure of the contraband, and Appellee’s
subsequent admission were indeed “obtained” by exploitation of the warrantless
search. Id.; Mazuca, 375 S.W.3d at 306. Because the contraband was discovered
by the police within a matter of seconds after Officer Pacatte entered Appellee’s
dorm room and because there was no intervening circumstance that provided
justification for the search of Appellee’s dorm room, we conclude that the taint of
illegality had not been purged. The trial court did not err when it applied the
exclusionary rule to the evidence seized. We overrule the State’s third issue.
      In its fourth issue, the State argues that the trial court erred when it suppressed
Appellee’s statements, and other evidence related to Appellee’s arrest, as fruit of the
poisonous tree. The State asserts that the basis for the suppression of the statements
was the same as that for the suppression of the contraband and that, if the trial court
erred when it suppressed the contraband, then the trial court also erred when it
suppressed the statements. As discussed above, the trial court did not err when it
suppressed the contraband seized. Therefore, the trial court did not err when it
suppressed Appellee’s statements. We overrule the State’s fourth issue.




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                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


September 24, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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