                                                                                   PD-0823-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 1/13/2015 8:34:44 AM
Janaury 13, 2015                                                  Accepted 1/13/2015 9:20:30 AM
                      IN THE COURT OF CRIMINAL APPEALS                              ABEL ACOSTA
                                                                                            CLERK
                            OF THE STATE OF TEXAS

                                    NO. PD-0823-14
                        (Court of Appeals No. 11-12-00315-CR)
                                 (Trial Court No. 7363)

                            STATE OF TEXAS, Appellant,

                                         v.

                         JOHN BERRY JACKSON, Appellee.



    ******************************************************************

                    APPEALED FROM THE 32nd DISTRICT COURT
                                    OF
                          MITCHELL COUNTY, TEXAS

    ******************************************************************

                   THE HONORABLE GLEN HARRISON, PRESIDING

    ******************************************************************
                   APPELLEE’S BRIEF ON THE MERITS
    ******************************************************************



                                       JEFFREY A. PROPST
                                       STATE BAR NO. 24064062
                                       P.O. BOX 3717
                                       ABILENE, TEXAS 79604
                                       Tel. (325) 455-1599
                                       Fax (325) 455-1507
                                       Email: jeff@keithandpropst.com

                                       ATTORNEY FOR APPELLEE
                                           TABLE OF CONTENTS

SUBJECT                                                                                                    PAGE

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            1

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        1

                  The court of appeals did not err in affirming the trial
                  court’s decision to suppress evidence, because the
                  evidence had been come at by exploitation of the
                  illegal placement of a GPS tracking device and not
                  by means sufficiently distinguishable to be purged of
                  the taint.

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  4

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 5-16

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   16

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           17

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                17 




                                                               i
                                 TABLE OF AUTHORITIES

CASES

Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, . . . . . . . . . . . . . 5
      173 L. Ed. 2d 485 (2009)

Armendariz v. State, 123 S.W.3d 401 (Tex. Crim. App. 2003) . . . . . . 5

Azeez v. State, 248 S.W.3d 182, 189-90 (Tex. Crim. App. 2008) . . . .                    11

Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987) . . . . . . . . . . . 14-16

Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, . . . . . . . . . . . . . . . . . 6-8, 13
     45 L. Ed. 2d 416 (1975)

Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, . . . . . . . . . . . . . . 12
     23 L. Ed. 2d 685 (1969)

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) . . . . . . . . . . . . 4, 5

Kaupp v. Texas, 538 U.S. 626, 123 S. Ct. 1843, 55 L. Ed. 2d 814 . . .                    8
     (2003)

Mazuca v. State, 375 S.W.3d 294, 306 (Tex. Crim. App. 2012) . . . . . 5-6, 9-14

United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 . . . . .                 5, 9
      (2012)

Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, . . . . . . . . .                6-7, 10-12
     9 L. Ed. 2d 441 (1963)

STATUTES

TEX. CODE CRIM. PROC. art. 15.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

TEX. TRANSP. CODE §543.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. TRANSP. CODE §543.004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


                                                    ii
TEX. TRANSP. CODE §543.005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                    iii
                   IN THE COURT OF CRIMINAL APPEALS
                         OF THE STATE OF TEXAS

                                  NO. PD-0823-14
                      (Court of Appeals No. 11-12-00315-CR)
                               (Trial Court No. 7363)

                          STATE OF TEXAS, Appellant,

                                          v.

                       JOHN BERRY JACKSON, Appellee.

                    APPELLEE’S BRIEF ON THE MERITS

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

                          STATEMENT OF THE CASE

      Jackson was charged with possession of more than 4 but less than 200 grams

of methamphetamine with intent to deliver.        The trial court granted Jackson’s

motion to suppress, and the State appealed the trial court’s ruling. The court of

appeals affirmed. State v. Jackson, 435 S.W.3d 819 (Tex. App. - Eastland 2014).

This Court granted the State’s petition for discretionary review on October 8, 2014,

and extended the time for the State to file its brief until November 24, 2014. This

Court extended the time for the Appellee to file his brief until January 13, 2015.

                               ISSUE PRESENTED

      The court of appeals did not err in affirming the trial court’s decision to
      suppress evidence, because the evidence had been come at by exploitation of
      the illegal placement of a GPS tracking device and not by means sufficiently
      distinguishable to be purged of the primary taint.



                                          1
                            STATEMENT OF FACTS

     Law enforcement placed a GPS tracking device on Appellee Jackson’s

vehicle.   (RR: 12-13).    Law enforcement placed the GPS tracking device on

Jackson’s vehicle without a warrant based on probable cause, but rather based on

then article 18.21 of the Texas Code of Criminal Procedure, which requires only a

finding of reasonable suspicion. See Tex. Code Crim. P. art. 18.21. (RR: 12 and

Def. Ex. 1). No court found that there was probable cause to install a GPS device.

(RR: 20). The GPS device allowed law enforcement to closely monitor Jackson at

their leisure.   (RR: 13, 22-23).   Law enforcement was able to save records of

Jackson’s vehicle’s movements and “go back and watch it” when they pleased.

(Id.) Law enforcement received notification via cell phone any time Jackson left

Colorado City and had the ability to set other parameters on the GPS device for

notification purposes. (Id.) As a result of the parameters, law enforcement was

notified on December 12, 2011, that Jackson had left Colorado City and traveled to

to the Dallas/Fort Worth area. (RR: 13-14). Law enforcement officers used the

GPS device to learn that Jackson went to Mesquite, Texas, pulled into a residential

area, and stayed for two hours. (RR: 14). Based on the information provided from

the GPS tracking device, law enforcement officers in Colorado City were able to

learn about the area Appellee was in by talking with law enforcement in Mesquite,

Texas. (RR: 14). Using the GPS device, law enforcement officers were able to


                                         2
locate Jackson’s vehicle heading west from the Dallas/Fort Worth area through

Taylor County and began following him with two unmarked vehicles. (RR: 15,

24-25). Law enforcement officers were able to learn that Jackson was speeding in

violation of the traffic code, first by reading the data from the GPS device, and

then by observing their own speedometers as they were following Appellee, or

“pacing.” (RR: 15, 26). Investigator Billy Sides testified that Appellee Jackson

was traveling at a speed between 73 and 74 miles per hour in an area where the

speed limit is 70 miles per hour. (RR: 7). While still following Jackson, law

enforcement officers radioed Deputy Clark, who was in Mitchell County, and

alerted him to Appellee’s imminent arrival in Mitchell County. (RR: 15). The law

enforcement officers who were gathering data from the tracking device told

Deputy Clark that Jackson was speeding. (RR: 15). Deputy Clark then positioned

himself “right inside Mitchell County,” used his radar on Appellee’s vehicle, and

stopped Jackson for speeding. (RR: 15, 27). Though Appellee was speeding from

Taylor County to Mitchell County, law enforcement officers waited until Jackson

entered Mitchell County to have Deputy Clark get a radar reading and stop

Appellee. (RR: 26). Three officers were present at the stop. (RR: 8). Once

stopped, Deputy Clark asked Jackson for consent to search his vehicle, and

Appellee consented to the search. (RR: 7-8). Consent was asked for and given

within minutes of the stop. (RR: 32). Law enforcement then searched the vehicle



                                        3
and found illegal drugs. (RR: 8, 32). After the discovery of illegal drugs, Jackson

made incriminating statements against himself. (RR: 9).



                       SUMMARY OF THE ARGUMENT

     This Court should apply the factors in Brown. Applying those factors, the

State did not carry its burden to show that the confession was voluntary; the

complained-of evidence was obtained in close temporal proximity to the illegal

search and seizure; and the taint of the primary illegality was not attenuated by the

intervening circumstance of Jackson’s speeding violation.         With regard to the

fourth Brown factor, the State incorrectly asserts that the most important factor in

determining whether the taint is attenuated is whether the officers acted with

flagrancy and/or purposefulness.      Under Mazuca, the most important factor in

making the determination is the temporal proximity of the obtaining of the

evidence to the illegal search and seizure. Finally, whether Jackson’s consent to

search was valid is governed by the factors in Brick. Considering the Brown and

Brick factors, the taint of the primary illegality was not attenuated and the appellate

court’s ruling should not be disturbed.




                                          4
                       ARGUMENT AND AUTHORITIES

Standard of Review

     A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse

of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). The trial

court is given almost complete deference in its determination of historical facts,

especially if those are based on an assessment of credibility and demeanor. Id.

The same deference is afforded the trial court with respect to its rulings on

application of the law to questions of fact and to mixed questions of law and fact, if

resolution of those questions depends on an evaluation of credibility and demeanor.

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. A court of appeals must

uphold a trial court’s ruling on a motion to suppress if that ruling was supported by

the record and was correct under any theory of law applicable to the case.

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). That rule holds

true even if the trial court gave the wrong reason for its ruling. Id.



     The government’s installation of a GPS device on a target’s vehicle, and its

use of that device to monitor the vehicle’s movements, constitutes a ‘search.’

United States vs. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012). Searches

conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment - subject only to

                                           5
a few specifically established and well-delineated exceptions. Arizona v. Gant, 556

U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Where evidence is

obtained as a result of an illegal arrest or detention, a reviewing court must decide

whether the taint of the primary illegality was attenuated. Mazuca v. State, 375

S.W.3d 294, 306 (Tex. Crim. App. 2012); Brown v. Illinois, 422 U.S. 590, 95 S. Ct.

2254, 45 L. Ed. 2d 416 (1975).

     In order to make effective the fundamental constitutional guarantees of

sanctity of the home and inviolability of the person, evidence seized during an

unlawful search cannot constitute proof against the victim of the search. Wong Sun

v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). “The

exclusionary prohibition extends as well to the indirect as to the direct products of

such invasions.” Id. Not all evidence is fruit of the poisonous tree simply because

it would not have come to light but for the illegal action of the police. Rather, 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. Wong Sun, 371 U.S. at 477-88; Mazuca, 375 S.W.3d at 300.

     In determining whether the taint has been attenuated, a court should consider

the following factors: (1) whether Miranda warnings were given, (2) the temporal

proximity of the arrest and the confession, (3) the presence of intervening

circumstances, and, (4) particularly, the purpose and flagrancy of the official

                                         6
misconduct. Mazuca, 375 S.W.3d at 301-02 (citing Brown, 422 U.S. at 603-04).

In the absence of the discovery of an outstanding arrest warrant, the factor of

temporal proximity becomes paramount. Mazuca, 375 S.W.3d at 306-07.



Miranda Warnings

     Miranda warnings were not given until after Appellee’s consent to search, so

the factor only applies in determining the admissibility of Jackson’s confession.

     In considering Miranda warnings in the context of an attenuation-of-the-taint

analysis, the Brown court observed:

               “The question whether a confession is the product of a free
              will under Wong Sun must be answered on the facts of each
              case. No single fact is dispositive. 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…The
              voluntariness of the statement is a threshold requirement. And
              the burden of showing admissibility rests, of course, on the
              prosecution.”

Brown, 422 U.S. at 603-04. Miranda warnings do not, by themselves, purge the

taint of an illegal arrest. Id. at 605. Further, the State did not carry its burden at

the Motion to Suppress hearing of showing voluntariness and admissibility of the

statements.    The State presented no writing or recording showing that Jackson

voluntarily and knowingly waived his rights. Rather, at most, the State showed

mere acquiescence to authority.      (RR: 9). Thus, this factor argues in favor of

suppression.

                                           7
Temporal Proximity

     Temporal proximity and the remaining Brown factors are discussed here with

relation to (1) the stop, (2) the discovery of the methamphetamine, and (3)

Jackson’s confession. Because the validity of a defendant’s consent following an

illegal search is governed by another test, the issue of consent is treated separately,

below.

     In Brown v. Illinois, the court found that a 2-hour passage of time between the

defendant’s arrest and his first incriminating statement argued in favor of

suppression. Brown, 422 U.S. at 604-05. In Kaupp v. Texas, the Supreme Court

found that where there was “no indication from the record that any substantial time

passed between Kaupp’s removal from his home in handcuffs and his confession

after only 10 to 15 minutes of interrogation,” the temporal-proximity factor argued

in favor of suppression. Kaupp v. Texas, 538 U.S. 626, 633, 123 S. Ct. 1843, 55 L.

Ed. 2d 814 (2003). Here, though no exact amount of time is stated in the record,

Investigator Sides testified that “[i]t wasn’t very long. Long enough to just 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.”

(RR: 39). The discovery of the methamphetamine happened just after Jackson

consented, before the vehicle was taken to the police department. (RR: 8, 32). The

                                          8
Brown factor of temporal proximity militates in favor of suppression of the stop,

the discovery of the methamphetamine, and the confession.

     The State argues that the court of appeals misapplied the Brown factor of

temporal proximity because “the court of appeals measured the time between the

stop and the discovery of the methamphetamine,” rather than “the time between the

‘primary illegality’ and the discovery of the evidence.” (State’s Brief on the Merits,

p.7). What the State’s argument overlooks is the fact that the “primary illegality”

was not merely the placing of a GPS tracking device on Jackson’s car, but the

subsequent gathering of data from that device, which continued right up to the time

of the stop. See Jones, 132 S. Ct. at 949 (holding not merely that the installation of

a GPS device but also the government’s “use of that device to monitor the vehicle’s

movements, constitutes a search.”).

     The State argues that Deputy Clark, who used radar to determine Jackson’s

speed, did not rely on the tracking device. (State’s Brief on the Merits, p. 7). This

is not a meaningful distinction, however, because Deputy Clark did rely on the

information being supplied by Investigator Sides, who was relying on the tracking

device. (RR: 15).

     Finally, this Court has indeed explained that temporal proximity can be the

“least important factor - at least relative to the other two.” Mazuca, 375 S.W.3d at

306. However, this Court has further explained that



                                          9
            “when the police find and seize physical evidence shortly after an
            illegal stop, in the absence of the discovery of an outstanding warrant in
            between, that physical evidence should ordinarily be suppressed, even if
            police misconduct is not highly purposeful or flagrantly abusive of
            Fourth Amendment rights. Under this scenario, temporal proximity is
            the paramount factor.”

Id.    In this case, there was no discovery of an outstanding arrest warrant.

Therefore, temporal proximity is the paramount factor.



Intervening Circumstances

      The State argues that the deputy’s observation of the speeding violation was

an intervening circumstance between the primary illegality and the discovery of the

methamphetamine sufficient to dissipate the taint. (State’s Brief on the Merits, p.

8). However, the traffic stop for speeding was “come at by exploitation” of the

primary illegality. Wong Sun, 371 U.S. at 477-88; Mazuca, 375 S.W.3d at 300.

The use of Deputy Clark’s radar was merely an extension of the use of the GPS

device. The only reason Investigator Sides knew that Jackson had been to Dallas

and was driving back to Colorado City was because of the tracking device. (RR:

25). Without the tracking device, Investigator Sides would not have known where

Jackson was that day.        (RR: 25).     Without knowing where Jackson was,

Investigator Sides would not have been able to follow Jackson, use the technique

of pacing, or call for Officer Clark to sit just inside the county line with a radar

gun. The illegal placement of the GPS device allowed law enforcement to easily


                                          10
gather that Jackson was on a particular road going 3 to 4 miles per hour over the

speed limit.    Though law enforcement then went to the trouble to set up an

ostensibly independent radar speed trap, their strategy was informed by the data

collected from the GPS tracker.

     The State argues that, in general, intervening circumstances naturally follow

the primary illegality and may have some element of causation or relativity, but

that does not necessarily mean they are tainted. (State’s Brief on the Merits, p. 8).

The State then cites Mazuca as an example supporting this proposition. However,

the intervening circumstance in Mazuca was the discovery of an arrest warrant.

Mazuca, 375 S.W.3d at 297. An arrest warrant is fundamentally different than

observing a vehicle traveling at a rate 3 or 4 miles over the speed limit.          “A

‘warrant of arrest‘ is a written order from a magistrate, directed to a peace

officer . . . commanding him to take the body of the person accused of an offense,

to be dealt with according to law.” TEX. CODE CRIM. PROC. art. 15.01. A peace

officer has no choice; he must arrest a person that he knows has a warrant.    On the

other hand, in the case of a mere traffic stop for speeding, the officer is required to

issue a written notice to appear in lieu of arresting the speeder. TEX. TRANSP. CODE

§543.003-5; Azeez v. State, 248 S.W.3d 182, 189-90 (Tex. Crim. App. 2008).

While an arrest pursuant to an arrest warrant always justifies a search of the

arrestee and his immediate area, a speeding violation, without more, does not

justify a search.

                                          11
      The stop for speeding does not merely “have some element of causation or

relativity” to the primary illegality of installing and monitoring with the GPS

device; rather, it had been “come at by exploitation of that illegality instead of by

means sufficiently distinguishable to be purged of the primary taint.” Wong Sun,

371 U.S. at 477-88; Mazuca, S.W.3d 375 at 300. Law enforcement’s traffic stop of

Appellee for speeding is too closely connected to the GPS tracking device for the

speeding offense to dissipate the taint. For the foregoing reasons, Jackson’s traffic

violation of speeding is not a meaningful enough intervening circumstance to

dissipate the taint of the primary illegality.



Purposefulness and Flagrancy

     The State’s argues that, “when intervening circumstances occur, the temporal

proximity factor becomes less important and the purposefulness and flagrancy

factor becomes the most important consideration.” (State’s Brief on the Merits, p.

8). The State’s argument would thus expand the holding in Mazuca, which merely

held that the purposefulness and flagrancy factor becomes paramount when the

intervening circumstance is the discovery of an arrest warrant. Mazuca, 375 S.W.

3d at 306. No such expansion of Mazuca is warranted or justifiable.

     As noted above, an arrest warrant is a special type of intervening

circumstance. It orders an officer to arrest a person, leaving no discretion to the

officer who becomes aware of it. TEX. CODE CRIM. PROC.        ART.   15.01. Once an

                                            12
arrest occurs the police are justified in searching the arrestee and the area in his

immediate control in the interest of officer safety and to preserve evidence. See

Chimel v. California, 395 U.S. 752, 764, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

Further, it is the policy of every law enforcement agency in the United States to

effect such a search incident to arrest, and it would be absurd for a law

enforcement agency not to have such a policy.        It would be equally absurd to

exclude from evidence that which was found pursuant to a non-discretionary order

to arrest a person and the subsequent search incident to arrest.

     Driving 3 or 4 miles per hour over the speed limit is not in a special category

of intervening circumstances and does not trigger the same application of the

Brown factors. In such a case, temporal proximity remains the paramount factor.

Mazuca, 375 S.W.3d at 306.

     Still, it may be helpful to fully analyze the flagrancy/purposefulness factor.

The Mazuca Court identified the following factors as relevant to the question of

whether the police conduct was flagrant or purposeful: (1) an officer’s regular

practice and routines, (2) an officer’s reason for initiating the encounter, (3) the

clarity of the law forbidding the illegal conduct, (4) and the objective appearance

of consent. Mazuca, 375 S.W.3d at 305-06.

     Appellee concedes that the clarity of the law was poor at the time of the

arrest. However, that factor is not dispositive of flagrancy/purposefulness.



                                          13
     The law enforcement officers in the instant case were not engaged in their

normal practice or routines. They had monitored Jackson’s vehicle for most of the

day and driven to another county to intercept and follow Appellee in three

counties. The officers had detailed information about Jackson’s activities that day,

which they were able to obtain at their convenience and leisure.

     The officers’ reasons for initiating the traffic stop were to obtain consent and

search the vehicle for drugs. Investigator Sides all but admitted that this was a

pretextual stop to search for drugs. (RR: 16). Unlike Mazuca, where there was

“no indication that [officers] were making traffic stops for any purpose other than

to enforce traffic laws or that they harbored the specific hope or expectation that

they might obtain the consent of motorists to search their vehicles” Mazuca, 375

S.W.3d at 309, here there is every indication that officers were making the traffic

stop for the purpose of obtaining Appellee’s consent to search his vehicle in the

hope of finding narcotics. This factor argues in favor of Jackson’s position even if

one accepts that the officers’ subjective belief was that they were complying with

the laws regarding GPS tracking devices.



Consent

     Because the issue of consent triggers the test in Brick v. State, a separate

analysis is needed.   Before it can be determined that evidence derived from a

warrantless but consensual search following an illegal arrest is admissible, it must

                                         14
first be found, by clear and convincing evidence, not only that the consent was

voluntarily rendered, but also that due consideration of the following factors

militates in favor of the conclusion that the taint otherwise inherent in the illegality

of the arrest has dissipated: (1) proximity of the consent to the arrest; (2) whether

the seizure brought about police observation of the particular object which 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 that he

could decline to consent and thus prevent an immediate search of the car or

residence;   (6) and whether the police purpose underlying the illegality was to

obtain the consent. Brick v. State, 738 S.W.2d 676, 680-81 (Tex. Crim. App. 1987).

The burden, of course, is on the state. Id. at 681.

     The above factors do not militate clearly and convincingly in favor of the

conclusion that the taint was dissipated. In fact, most of the Brick factors argue for

the conclusion that the taint was not dissipated. Deputy Clark asked for consent

within minutes of the stop. (RR: 32). Consent was given very soon after the stop.

(Id.). There was no delay. (Id.) Consent was not volunteered by Appellee but

given in response to a request by Deputy Clark. (RR: 8). Nothing in the record

indicates that Jackson was made at all aware of the fact that he could decline to

consent. Also, the police purpose underlying the use of the GPS tracking device

and the traffic stop was clearly to obtain Appellee’s consent to search. In fact,

                                          15
State’s counsel took time to address the issue of pretextual stops with Investigator

Sides at the Motion to Suppress Hearing. (RR: 16). Investigator Sides, when

asked whether he was familiar with pretextual stops, proudly answered, “Very

much so; been doing them my career [sic].” (Id.) The reasonable inference is that

the traffic stop in this case was pretextual. The second factor of the Brick analysis

(“whether the seizure brought about police observation of the particular object

which they sought consent to search”) does not seem to be applicable here.

     The only factor arguably in favor of the State’s position is “whether the illegal

seizure was flagrant police misconduct.” Even if this factor is given to the State,

due consideration of the Brick factors does not clearly and convincingly militate in

favor of the state’s position.

     Further, the record contains scant evidence to show clearly and convincingly

that the consent was voluntarily obtained.



                                      PRAYER

     WHEREFORE, PREMISES CONSIDERED, Appellee prays that this Court

affirm the order of the court of appeals.




                                            16
                                  Respectfully submitted,

                                        /s/ Jeffrey A. Propst
                                  JEFFREY A. PROPST
                                  Texas Bar No. 24064062
                                  P.O. Box 3717
                                  Abilene, Texas 79604
                                  Tel. (325) 455-1599
                                  Fax (325) 455-1507
                                  Cell (325) 280-5081
                                  Email: jeff@keithandpropst.com
                                  ATTORNEY FOR JOHN BERRY JACKSON

                          CERTIFICATE OF SERVICE

I certify that on January 11, 2015, a true and correct copy of the Appellee’s Brief
on the Merits was served on the following by electronic service.

Lisa McMinn                       Barrett Thomas
State Prosecuting Attorney        Assistant District Attorney
P.O. Box 13046                    100 E. 3rd St., Suite 202
Austin, Texas 78711               Sweetwater, Texas 79556
Information@SPA.texas.gov         barrett@32ndda-tx.us


                                           /s/ Jeffrey A. Propst
                                       JEFFREY A. PROPST

                       CERTIFICATE OF COMPLIANCE

Counsel for Appellee hereby certifies that the foregoing document meets the
requirements of Tex. R. App. P. 9.4 and that, based on the word count of the
computer program used to generate the document, the document contains 4,045
words. The entire document is written in 14-point font.




                                           /s/ Jeffrey A. Propst
                                       JEFFREY A. PROPST

                                        17
