Opinion issued July 12, 2012.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                            NOS. 01-11-00558-CR
                                 01-11-00559-CR
                           ———————————
                    JAMES DAVID OROSCO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 180th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1283643 & 1283645



                                 OPINION

      After the trial court denied his motion to suppress, appellant, James David

Orosco, pleaded guilty to possession of marihuana in an amount of more than four
ounces, but less than five pounds, 1 and possession of a firearm by a felon. 2 In

accordance with a plea agreement with the State, the trial court assessed

punishment at six months’ confinement on the marihuana charge and two years’

confinement on the possession-of-a-firearm-by-a-felon charge. In his sole issue on

appeal, appellant contends the trial court erred in denying his motion to suppress.

                                 BACKGROUND

      A narcotics officer with the Houston Police Department informed Officer R.

Watson that he suspected drug activity at 620 Reid Street in Houston, Texas.

Watson is a member of the Differential Response Team, whose “focus is enforcing

code violations, building inspections and other regulatory matters.” The narcotics

officer told Watson that he had seen several municipal code violations at the

property and asked Watson to check them out.           Watson and his partner, C.

Schuster, drove by the property and observed three different municipal code

violations. Specifically, the grass was excessively tall, the roof was unsafe, and the

automated trash collection container was not stored out of public view. Based on

these observed violations, Watson obtained a search warrant for the property.

Watson testified that the warrant gave him the authority to enter the curtilage of the


1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 2010) (trial court
      case number 1283643 and appellate case number 01-11-00558-CR).
2
      See TEX. PENAL CODE ANN. § 46.04 (Vernon 2011) (trial court case number
      1283645 and appellate case number 01-11-00559-CR).
                                          2
property to investigate further municipal violations, but did not give him the

authority to enter the home on the property. Watson further testified that he

decided to get the warrant because “even though we had access to the property, we

found that it’s better to have the warrant in case people tell you, you know, run

along.”

      On October 30, 2010, Watson, Schuster, and at least five other officers

approached the residence at 620 Reid Street at 7 a.m. When they arrived, they

noticed that there was a light on inside and appellant’s car was in the driveway.

Watson and Schuster approached the front door to knock and announce their

presence, while the other officers formed a perimeter around the house to prevent

anyone inside from “jumping out the back window” and running off and to make

sure “that no one walks up on us while we’re conducting an investigation.”

      Watson testified that he “knocked and knocked and knocked and knocked,”

but no one came to the door. The officers around the perimeter of the house

looked in the windows and saw a bong on a coffee table and also noted that there

were keys inside the front lock indicating that someone was home.             While

surrounding the house, the police saw additional municipal violations including

stacked tires on the side of the house and exposed electrical wiring. The police also

noticed that the house had “the kind of low quality security cameras that [are




                                         3
usually found] at drug dealers’ houses.” From one partially opened window, the

officers detected the odor of marihuana.

      The officers continued knocking on the door and windows intermittently for

20 to 30 minutes with no response from anyone inside. Watson testified that

everyone within the house was being detained from the moment he and the other

officers approached the house, and that no one was free to leave the residence until

he had talked with them about the municipal code violations. After about 30

minutes of knocking, one of the officers discharged a shotgun at a threatening dog

in the area. Immediately thereafter, appellant came out of the front door. He told

one of the officers, “You know, y’all were laughing about [shooting at] the dog. I

was afraid of what you’d do to me if I didn’t come out.”

      The officers heard the deadbolt lock on the door after appellant stepped

outside. Watson, while surrounded by three or four other officers, placed appellant

in handcuffs and then asked him whether anyone else was inside the house.

Appellant initially denied that there was anyone in the house, but when questioned

further by Watson, appellant replied, “Yeah, yeah, you’re right. My girlfriend’s in

the house.” Watson then told appellant, “Well, you need to have her come out

because I don’t know how many people are in there. You’ve already lied to me

once about there being someone else in the house. You need to have her come

outside right now.” Appellant talked to his girlfriend through the door and she

                                           4
then came out on the porch. The officers had her sit in a chair on the porch

because she was several months pregnant.

      When appellant’s girlfriend came out of the house, the officers noticed the

smell of fresh marihuana and that appellant had several gang tattoos. Appellant

told Watson that “he didn’t want people knowing his business and he didn’t want

to talk around his girlfriend . . . [s]o [they] went inside to his kitchen right

immediately inside the front door.”

      Before going inside with appellant, several of the officers did a “protective

sweep” of the house. Watson did not ask permission to do the sweep, and he

testified that he felt it was necessary because the officers smelled marihuana,

“believed there’s a high probability that someone else could be in there,” saw

appellant’s gang tattoos, and appellant had lied once about there being no one in

the house. During the protective sweep, the officers found two loaded firearms,

smelled fresh marihuana, saw drug paraphernalia, and discovered a “hydroponic”

marihuana growth set-up in one of the rooms. Although no marihuana was seen,

there were some plant stems in pots and some other drug paraphernalia. After the

45-second sweep, the officers “pulled out waiting for either a search warrant . . . or

to see if we could just talk to the defendant and he would give his consent to

search.” Watson then read appellant his Miranda rights.




                                          5
      Watson told appellant, “Look, what we have here is we have probable cause

to get a search warrant to search this house. You can either hang out, let us go get

that search warrant, or you can give us written consent now.” Appellant responded

that “as long as [they] kept his girl out of it, he would give written consent.”

      Appellant, Watson, and Schuster went inside to the kitchen, got appellant a

glass of water, and spent about 20 minutes discussing the consent.        Watson told

appellant that if a person cooperates with a search request, it “usually works out

better in their favor at the end of the investigation.” Watson also told appellant,

“You want me to keep your girl out of this?” To which appellant responded,

“Yeah. It’s not hers. You know this is my thing. She’s pregnant, I want to keep her

out of it.” Officer Schuster testified that appellant was told that if he signed the

consent, his girlfriend would not be prosecuted or arrested. However, on cross-

examination Schuster clarified that appellant first brought up the issue of letting his

girlfriend go, and that there was no promise of anything in exchange for signing

the consent. Watson also testified that he told appellant that in return for signing

the consent, he would not charge appellant’s girlfriend. Watson then read appellant

the consent form, explained it to him, and informed appellant that he had the right

to refuse to consent. Appellant signed the form.

      The police discovered a large quantity of marihuana during their subsequent

search of the house.

                                           6
                            MOTION TO SUPPRESS

      Appellant contends the trial court erred in denying his motion to suppress

based on his execution of the consent form. Specifically, appellant contends that

his consent was involuntary because (1) the warrant giving police the right to enter

the curtilage of his property was invalid; (2) he was constructively seized in his

home when police surrounded his home and knocked on the door and window for

30 minutes before discharging a weapon, which caused him to involuntarily leave

his home; (3) the police conducted an illegal “protective sweep” of his home; and

(4) the police illegally induced his consent by promising to “keep his girl” out of it

if he cooperated and signed the consent.

Standard of Review

      In reviewing the trial court’s ruling on the motion to suppress evidence, we

apply a bifurcated standard of review, giving “almost total deference to [the] trial

court’s determination of historical facts” and reviewing de novo the court’s

application of the law of search and seizure to those facts. Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85,

88–89 (Tex. Crim. App. 1997)). If the issue involves the credibility of a witness,

such that the demeanor of the witness is important, then greater deference will be

given to the trial court’s ruling on that issue. Guzman, 955 S.W.2d at 87. In a

motion to suppress hearing, the trial court is the sole trier of fact and judge of the

                                           7
credibility of the witnesses and the weight to be given to their testimony. State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly, the trial court

may believe or disbelieve all or any part of a witness’s testimony, even if that

testimony is not controverted. Id. We will uphold the 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. Id. at 856.

      As here, when the trial court files findings of fact with its ruling on a motion

to suppress, an appellate court does not engage in its own factual review, but

determines only whether the record supports the trial court’s fact findings. Romero

v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless the trial court

abused its discretion by making a finding not supported by the record, we will

defer to the trial court’s fact findings and not disturb the findings on appeal. Cantu

v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). On appellate review, we

address only the question of whether the trial court properly applied the law to the

facts. Romero, 800 S.W.2d at 543.

Consent

      Under the Fourth and Fourteenth Amendments to the United States

Constitution,   a    search    conducted       without   a   warrant   is    per   se

unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043

(1973). Consent to search is one of the well-established exceptions to the

                                           8
constitutional requirements of both a warrant and probable cause. Id. at 219;

Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). The validity of a

consensual search is a question of fact, and the State bears the burden to prove by

clear and convincing evidence that consent was obtained voluntarily. Gutierrez v.

State, 221 S.W.3d 680, 686—87 (Tex. Crim. App. 2007). This burden includes

proving that consent was not the result of duress or coercion. Id. Consent is not

established by showing no more than acquiescence to a lawful authority.

Carmouche, 10 S.W.3d at 331 (quoting Bumper v. North Carolina, 391 U.S. 543,

548, 88 S. Ct. 1788 (1968)). To determine whether the State met its burden, we

look at the totality of the circumstances. Gutierrez, 221 S.W.3d at 686—87. If

the record supports a finding by clear and convincing evidence that consent to

search was free and voluntary, we will not disturb that finding. Carmouche, 10

S.W.3d at 331. Whether it is reasonable under the Fourth Amendment for an

officer to rely on consent is a question which we determine by examining the

totality of the circumstances. Hubert, 312 S.W.3d at 560; Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002). If police obtain evidence as the result of

a consensual search during an illegal seizure, a defendant may have the evidence

suppressed unless the State proves that the causal relationship between the police

misconduct and the defendant’s consent is attenuated—that is, the illegal seizure

did not taint the otherwise voluntary consent. Brick v. State, 738 S.W.2d 676, 681

                                        9
(Tex. Crim. App. 1987); Munera v. State, 965 S.W.2d 523, 532 (Tex. App.—

Houston [14th Dist.] 1997, pet. ref’d).

      Thus, before we determine whether appellant’s consent was voluntary, we

must first address his allegations of police misconduct. The State argues that the

search warrant gave them authority to enter the curtilage of appellant’s property,

and that thereafter they had the authority to detain appellant to further investigate

the municipal violations the officers had observed. Appellant responds that (1) the

warrant was invalid, thus the officers had no right to encroach on his property any

further than the front door, and (2) even if the warrant was valid and the officers

had the right to detain him, they could not enter his home to do so without a

warrant, nor could they coercively induce him to exit the property so as to

effectuate a warrantless arrest outside the home.

      No evidence was obtained as a result of the search warrant and the State did

not rely on the warrant to seize the evidence in appellant’s home, but instead relied

on appellant’s consent. Thus, we do not address the validity of the warrant.

Instead, we accept that the warrant gave police the right to enter the curtilage of

appellant’s property and consider what effect, if any, their entry and continued

presence on the property after concluding their search outside the residence had

upon appellant’s subsequent consent to search inside the residence.




                                          10
Product of Illegal Detention

      Appellant contends that he was illegally seized within his home when six to

seven armed police officers surrounded his house before daylight, knocked

repeatedly on doors and windows for 20 to 30 minutes, and then discharged a

shotgun nearby. Appellant argues that his decision to exit the house was not

voluntary, thus his seizure was a violation of Payton v. New York, 445 U.S. 573,

586—88, 100 S. Ct. 1371, 1380—81 (1980), which prohibits a warrantless arrest

inside a home absent exigent circumstances even if probable cause for such an

arrest exists.   Appellant further contends that the “protective sweep” and his

consent to search were tainted by this initial illegal seizure.

      The Fourth Amendment to the United States Constitution and article 1,

section 9 of the Texas Constitution protect individuals from unreasonable searches

and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; Johnson v. State, 912

S.W.2d 227, 232 (Tex. Crim. App. 1995). A search or seizure conducted inside a

home without a warrant issued upon probable cause is presumptively unreasonable.

See Payton, 445 U.S. at 586, 100 S. Ct. 1371. The “right of a man to retreat into

his own home and to be free from unreasonable governmental intrusion stands at

the very core of the Fourth Amendment.” Green v. State, 78 S.W.3d 604, 608—09

(Tex. App.—Fort Worth 2002, no pet.) (citing Silverman v. United States, 365 U.S.

505, 511, 81 S. Ct. 679, 683 (1961)). However, a police officer, like any common

                                           11
citizen, has the right to approach the front door of a residence and knock, as long

as there are no express orders forbidding trespass. See Cornealius v. State, 900

S.W.2d 731, 734 (Tex. Crim. App. 1995).

      Here, the State argues that “[a]s the subject of a lawful detention, appellant

was not free to simply remain in his house and ignore or hide from police, whom

he knew were outside wanting to speak to him.” Essentially, the State argues that

because the officers had reasonable suspicion to detain appellant for the municipal

code violations, he was required to open the door to them. This is clearly not the

law. A defendant is entitled to remain in his home, and police officers cannot enter

to effectuate an arrest without exigent circumstances, even if they have probable

cause to do so. See Payton, 445 U.S. at 586. The more difficult question we

address for the first time today is whether police conduct can, in the face of a

defendant’s refusal to exit his home, be considered an illegal arrest in violation of

Payton if the officers create circumstances indicating to the defendant that he must

exit the home. In such a case, the police have not breached the threshold of the

home, but their conduct has nonetheless coerced the defendant to exit the home

where he is then subject to warrantless detention or arrest.

      Appellant cites no Texas cases to support his position, but several federal

courts have found coercive conduct by police outside the home, which causes a




                                         12
defendant to believe that he must exit the home, to be an “illegal seizure” in

violation of Payton.

      In United States v. Reeves, 524 F.3d 1161, 1164 (10th Cir. 2008), police

officers went to a motel where the defendant, an assault suspect, had been living

for three months. At 2:43 a.m., the police asked the motel manager to call the

defendant’s room, which the manager did repeatedly.         Id. Appellant did not

answer the phone. Id. The officers then went to the defendant’s room, where they

“knocked consistently for at least twenty minutes while yelling and identifying

themselves as police officers.” Id. After approximately twenty minutes of banging

and yelling, the defendant opened the motel room door, stepped outside, and was

then arrested. Id. On appeal, he argued that he was arrested inside his home in

violation of the Fourth Amendment and that the evidence subsequently obtained

was tainted and should be suppressed. Id. at 1165. The Seventh Circuit agreed,

holding that “[a] reasonable person faced with several police officers consistently

knocking and yelling at their door for twenty minutes in the early morning hours

would not feel free to ignore the officers’ implicit command to open the door.” Id.

at 1169. The court concluded that “when Reeves answered his door he did so in

response to a show of authority by the officers and he was seized inside his home.”

Id. In so holding, the court noted that “opening the door to one’s home is not

voluntary if ordered to do so under color of authority,” and that “if an individual’s

                                         13
decision to open the door to his home to the police is not made voluntarily, the

individual is seized inside his home.” Id. at 1168.

      In United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir. 1984), nine

armed police officers surrounded the defendant’s mother’s home, flooded it with

spotlights, and used a bullhorn to “summon” the defendant outside. Id. at 1161.

On appeal, the State argued that the officers had reasonable suspicion upon which

to detain the defendant, thus their actions were reasonable in effectuating that

detention. Id. at 1164. The court disagreed, stating that “the police conduct outside

of the Morgan home cannot be characterized as a brief investigatory stop,” and that

the defendant was under arrest “as soon as the police surrounded the Morgan

home, and therefore, the arrest violated Payton because no warrant had been

secured.” Id. “The police show of force and authority was such that a ‘reasonable

person would have believed he was not free to leave.’” Id. (citing United States v.

Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Noting that (1)

nine officers and several patrol cars surrounded Morgan’s residence; (2) in the

dark; (3) blocked any movement of Morgan’s car; and (4) called for Morgan to

come out, the court concluded that “Morgan was placed under arrest, without the

issuance of a warrant, at the moment the police encircled the Morgan residence.”

Id.




                                         14
      In United States v. Gomez-Moreno, 479 F.3d 350, 352 (5th Cir. 2007), the

court considered a similar case involving a “knock-and-talk” investigation during

which the suspects inside the house initially refused to respond to the officers. In

Gomez-Moreno, the court stated that “the purpose of a ‘knock and talk’ is not to

create a show of force, nor to make demands on occupants, nor to raid a residence.

Instead, the purpose of a ‘knock and talk’ approach is to make investigatory

inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’

consent to search.” Id. at 355. The court then analyzed whether a proper “knock

and talk” had occurred.

      Here, the officers did not engage in a proper “knock and talk” but
      instead created a show of force when ten to twelve armed officers met
      at the park, drove to the residence, and formed two groups—one for
      each of the two houses—with a helicopter hovering overhead and
      several officers remaining in the general area surrounding the two
      houses. When no one responded to the officers’ knocking, the
      officers impermissibly checked the knob on the door to the front
      house to determine if it would open, and simultaneously, at the back
      house, announced their presence while demanding that the occupants
      open the door. When officers demand entry into a home without a
      warrant, they have gone beyond the reasonable “knock and talk,”
      strategy of investigation. To have conducted a valid, reasonable
      “knock and talk,” the officers could have knocked on the front door to
      the front house and awaited a response; they might have then knocked
      on the back door or the door to the back house. When no one
      answered, the officers should have ended the “knock and talk” and
      changed their strategy by retreating cautiously, seeking a search
      warrant, or conducting further surveillance. Here, however, the
      officers made a show of force, demanded entrance, and raided the
      residence, all in the name of a “knock and talk.”



                                        15
Id. at 355–56. Having exceeded the scope of a valid “knock and talk,” the court

then considered whether there were exigent circumstances to justify the subsequent

search and concluded there were not. Id.

      In another Fifth Circuit case, the court considered whether the officers’

conduct during a “knock and talk” was, in and of itself, a violation of the Fourth

Amendment. In United States v. Hernandez, 392 F. App’x 350, 351 (5th Cir.

2010), police initiated a knock and talk and announced their presence at the

defendant’s front door.     When they received no response, police circled the

defendant’s trailer banging on doors and windows, shouting that police were

present and anyone inside should open the door. Id. When the police heard

movement inside, they tried to open the front door, with one of the police actually

breaking a glass pane with his baton. Id. The defendant then exited the home and

subsequently gave police permission to enter the home. Id. The officers entered

the trailer, found illegal aliens, and subsequently charged the defendant with

harboring an illegal alien for financial gain. Id. The court held as follows:

      The officers’ conduct during their knock-and-talk—banging on doors
      and windows while demanding entry, attempting a forced entry by
      breaking the glass on Hernandez’s door, then relying on her admission
      that an illegal alien was present as probable cause to enter—violated
      the Fourth Amendment.

Id. at 353. The court then stated that the proper analysis was not whether the

defendant’s consent to search was voluntary, but whether there was a break in the

                                         16
chain of causation between the constitutional violation and her consent. Id. The

court concluded that there was no attenuation of the taint from the initial

constitutional violation and that the defendant’s motion to suppress should have

been granted. Id.

       Under the reasoning of Gomez-Moreno, Reeves, Morgan, and Hernandez,

we conclude that police cannot use an unreasonable show of force during a “knock

and talk” to compel a defendant to open his door to police. When a person in his

home declines to speak to police, the officers should retreat cautiously, seek a

search warrant, or conduct further surveillance. See Gomez-Moreno, 479 F.3d at

352.

       Thus, we must decide whether in this case an unreasonable show of force

compelled appellant to exit his home.            Here, seven police officers entered

appellant’s property before daylight on a Saturday morning to execute a search

warrant for municipal code violations.3 After noting several municipal violations,

the police did not leave, but maintained their perimeter around appellant’s home

while they attempted to make contact with appellant about the municipal code

violations. Two officers approached the front door, while the others remained in

their positions around the house. Officer Watson testified that the perimeter was

necessary because “we’ve had it happen before that you go to knock on

3
       As stated earlier, for purposes of this opinion, we will assume without deciding
       that the warrant was valid and gave the officers the right to enter the property.
                                            17
somebody’s front door regarding high weeds and they’re jumping out the back

window running because of something else they’ve done.” Watson also testified

that, based on where the officers were positioned, no one was able to leave the

residence. Watson knocked on the front door intermittently for 20 to 30 minutes.

While he was at the front door knocking, some other officers were knocking on

windows. During this 20 to 30 minute period, no one came to the door, although

officers believed that appellant was inside. Officers Watson and Schuster also

testified that at no time was appellant free to leave.

      Defense Counsel: Officer, at any point was Mr. Orosco free to leave?

      Watson: No. He was being detained.

      Defense Counsel: He was being detained. That includes even at the
      moment you approached the residence, correct?

      Watson: Yes. He was going to be detained till we got done talking
      about the reason why we came.

         ****
      Defense Counsel: Based on the officer’s positions and you and your
      partner’s position, was anybody free to enter or leave that residence?

      Schuster: Well, we hadn’t made contact with anybody. So, no. How
      could they be free to leave if we hadn’t talked to anybody?

      Defense Counsel: Well, my question specifically is, from that home,
      was anybody free to come in or leave that home at that point. Would
      they have been able to leave that residence without you intervening?

      Schuster: No.



                                           18
After 20 to 30 minutes of knocking on the door and windows with no response

from appellant, an officer who was positioned behind the house discharged a

shotgun at a neighbor’s dog. Appellant then came out of the house and was

immediately handcuffed.      He told Officer Schuster, “You know, y’all were

laughing about [shooting] the dog. I was afraid of what you’d do to me if I didn’t

come out.”

       “Opening the door to one’s home is not voluntary if ordered to do so under

color of authority.” Reeves, 524 F.3d at 1167. “If an individual’s decision to open

the door to his home to the police is not made voluntarily, the individual is seized

inside his home.” Id. “A reasonable person faced with several police officers

consistently knocking and yelling at their door for twenty minutes in the early

morning hours would not feel free to ignore the officers’ implicit command to open

the door.” Id.

      Under these circumstances, it cannot be said that appellant voluntarily

exposed himself to a warrantless arrest by leaving the confines of his home. After

searching the property before daylight, seven officers surrounded the home,

knocked on doors and windows for 20 to 30 minutes, and discharged a weapon

before appellant exited the house. As the officers themselves testified, they were

not leaving the premises, nor allowing anyone else to enter or leave the premises,

until appellant answered the door and responded to their questioning. In effect,

                                        19
appellant’s home was under siege when he finally consented to come outside.

Because he answered the door in response to an unreasonable show of authority by

the officers, he was unconstitutionally seized at that time. See Hernandez, 392 F.

App’x at 353; Reeves, 524 F. 3d at 1169.     Thus, we turn to the issue of whether

appellant’s subsequent consent to search was sufficiently attenuated from his

unconstitutional seizure.

Attenuation of Taint

      To establish the validity of consent after an illegal search or seizure, the

State must prove by clear and convincing evidence that the taint inherent in the

illegality had dissipated by the time consent was given. Brick v. State, 738 S.W.2d

676, 680–81 (Tex. Crim. App. 1987); accord Leal v. State, 773 S.W.2d 296, 297

(Tex. Crim. App. 1989). In that respect, we consider (1) the temporal proximity

between the unlawful seizure and the given consent; (2) whether the warrantless

seizure brought about police observation of the particular object for which consent

was sought; (3) whether the seizure resulted from flagrant police misconduct; (4)

whether the consent was volunteered or requested; (5) whether appellant was made

fully aware of the right to refuse consent; and (6) whether the police purpose

underlying the illegality was to obtain the consent. See Brick, 728 S.W.3d. at 680–

81.




                                        20
      The record shows that appellant gave his consent to search immediately after

he was illegally seized. “The close temporal and spatial proximity of the consent

to the illegal conduct makes the first factor favorable to appellant.” Beaver v.

State, 106 S.W.3d 243, 250 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      Immediately after appellant’s warrantless seizure, the police conducted a

protective sweep of the house. During this sweep, the police noticed two weapons

and a marihuana growth set-up. Once police saw this, they withdrew from the

premises to obtain either a warrant or consent for a more thorough search. But for

appellant’s warrantless seizure, police would not have conducted the protective

sweep, which led to the discovery of the items for which the police ultimately

sought consent to search. The second factor favors appellant.

      The third factor is more problematic. Courts usually do not deem police

misconduct as “flagrant” unless the illegal conduct was engaged in for the purpose

of obtaining consent, or the police misconduct was calculated to cause surprise or

fear. Id., (citing Brown v. Illinois, 422 U.S. 590, 605, 95 S. Ct. 2254, 2262 (1975)

(holding that police misconduct had a “quality of purposefulness,” and was

“calculated to cause surprise, fright, and confusion.”); Garcia v. State, 3 S.W.3d

227, 243 (Tex. App.—Houston [14th Dist.] 1999, pet. granted) (stating that police

conduct is flagrant if it is for the purpose of obtaining the consent) aff’d, 43

S.W.3d 527 (Tex. Crim. App. 2001); Renfro v. State, 958 S.W.2d 880, 886 (Tex.

                                        21
App.—Texarkana 1997, pet. ref’d) (no flagrant conduct where police did not

calculate to cause surprise or fear)).     Here, police officers testified that their

purpose in circling the house and banging on doors and windows for 20 to 30

minutes was to investigate the municipal code violations that they had seen, as well

as the drug paraphernalia they had seen through the windows and the marihuana

they had smelled. Their purpose, though illegal, was to force appellant from his

house so that they could discuss these matters with him.         According to their

testimony, their purpose did not change to seeking consent to search until after

they performed a protective sweep of the house. However, it is also probable that

their conduct was “calculated to cause surprise, fright, and confusion.” Multiple

officers approached appellant’s home before daylight and began knocking on doors

and windows before finally firing a shotgun. We conclude that factor three is

neutral.

      The police requested consent to search. This fourth factor favors appellant.

      Appellant was made fully aware, both orally and in writing, of his right to

decline consent. This fifth factor favors the State.

      The sixth factor requires us to consider whether the police purpose

underlying the illegality was to obtain the consent to search. As stated in our

discussion of the third factor, the police testified that their purpose in forcing

appellant to leave his home was to discuss the municipal code violations they had

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seen, as well as the drug paraphernalia and the odor of marihuana. The police

testified that they did not form an intent to seek consent to search the house until

the protective sweep of the house. The sixth factor favors the State.

      Only two of the six factors favor the State, thus we conclude that the State

has not met its burden of showing that the taint of appellant’s illegal seizure was

sufficiently attenuated from his subsequent consent to search. Thus, the trial court

erred in denying appellant’s motion to suppress.

      We sustain appellant’s sole issue on appeal.

                                 CONCLUSION

      We reverse the judgment of the trial court and remand for further

proceedings.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Publish. TEX. R. APP. P. 47.2(b).




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