                            NUMBER 13-12-00429-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

STATE OF TEXAS,                                                             Appellant,


                                           v.


DARELL LAWON WALKER,                                                         Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      This is an interlocutory appeal by the State of the trial court’s order suppressing

drug evidence seized as a result of a traffic stop of appellee, Darrell Lawon Walker.

The state challenges the trial court’s ruling that appellee did not consent to a search of

his vehicle and that all evidence obtained as a result of that search should be excluded.

We affirm.
                                              I. BACKGROUND

        This case arises out of nighttime surveillance by the Victoria, Texas Police

Department of a house suspected to be a center of drug sales. Officer Jason Stover

observed a car leave the house and followed it in his police cruiser. After observing the

car commit several traffic violations, Stover activated his lights and pulled the car over.

Stover informed the driver, appellee, of the traffic violations and ran a check of his

driver’s license. Stover discovered appellee’s license had expired and that he had a

criminal record for drug offenses. After Stover discovered that appellee’s license was

expired, he and appellee had the following exchange while appellee remained seated in

the driver’s seat: 1

        Stover:      You don’t have any drugs or weapons on you tonight, do you?
        Defendant: Nuh-uh.
        Stover:      Okay. You mind if I take a look?
        Defendant: Yeah.
        [Defendant exits the vehicle.]
        Stover:      You mind if I check to make sure you ain’t got no weapons on you?
        Defendant: Yeah.

        The video shows that appellee turned around and rested his arms on the vehicle

while Stover performed a pat down search of his outer clothing.                      Stover instructed

appellee to stand by Stover’s police cruiser while Stover, with the assistance of other

backup officers, searched the vehicle. The officers uncovered a marijuana cigarette

during the search of the vehicle. Stover also brought a drug-sniffing dog inside the

vehicle, and it alerted Stover to the driver’s seat. Stover testified that, based on his

experience, the dog’s reaction to that area was a good indication that the driver had

drugs in his groin area. Stover subsequently placed appellee under arrest for

        1
          The trial court viewed the dashboard videotape from Officer Stover’s vehicle and reproduced
this exchange in its findings of fact and conclusions of law. We viewed the tape and, having found it to be
accurate, reproduce it here.

                                                    2
possession of marijuana, and another officer transported him to the county jail. Before

leaving the scene, Stover can be heard on the dashcam footage telling the officers

transporting appellee to ensure that appellee is strip-searched upon arrival. During the

subsequent strip search, jail officials discovered cocaine taped under the appellee’s

scrotum. The State subsequently charged appellee with possession of a controlled

substance, a second-degree felony, and transporting a prohibited substance into a

correctional center, a third-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.115(d) (West 2010); TEX. PENAL CODE ANN. § 38.11(d)(1) (West 2011). Appellee

moved at trial to suppress the search of the car and the evidence found in the strip

search as “fruit of the poisonous tree.” The trial court granted the motion, and the State

filed a timely notice of appeal. TEX. CODE CRIM. PRO. art. 44.01(a)(5).

       At the State’s request, the trial court subsequently issued accompanying findings

of fact and conclusions of law, in which it found: (1) Stover had reasonable suspicion to

temporarily detain appellee because Stover observed appellee commit traffic violations

in Stover’s presence; (2) appellee consented to the pat down; (3) appellee was not

under arrest during the vehicle search; (4) Officer Stover searched the vehicle without

appellee’s consent; (5) Officer Stover did not have probable cause to search the

vehicle; (6) there was a direct causal connection between the search of appellee’s

vehicle and the jail strip search; and (7) there was no attenuation of taint in the cocaine

because of the temporal proximity of the strip search to the illegal search and the lack of

intervening circumstances. Based on the foregoing, the trial court concluded that both

the marijuana and cocaine should be suppressed as obtained in violation of appellant’s

state and federal constitutional rights against unreasonable search and seizure.



                                             3
        In what we number as three issues, the State challenges the trial court’s finding

that appellee did not give Stover consent to search the vehicle. The State does not

challenge the trial court’s finding that Officer Stover did not have probable cause to

search the vehicle, or that appellee was not under arrest at the time of the search. The

State argues, in the alternative, that even if the vehicle search was not a “valid consent

based search” the cocaine discovered during the strip search at the jail should not be

suppressed because there was no causal connection between the arrest and the search

at the jail. The State also argues that even if there was a causal connection between

the two searches, the time between the arrest and the strip search attenuated any taint

of illegality.

                                        II. ANALYSIS

    A. Legality of the Vehicle Search
        The State argues that the trial court erred in excluding the marijuana cigarette

because Officer Stover had appellee’s consent to search the vehicle. The State does

not challenge the trial court’s finding that Officer Stover did not have probable cause to

search the vehicle, or that appellee was not under arrest at the time of the search.

    1. Standard of Review
        We review a trial court’s ruling on a motion to suppress for abuse of discretion,

overturning only when the trial court’s ruling is outside of the zone of reasonable

disagreement. Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We

give “almost total deference to a trial court’s determination of the historic facts and

mixed questions of law and fact that rely upon the credibility of a witness” but we review

de novo “pure questions of law and mixed questions that do not depend on credibility

determinations.” Id. (citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App.


                                            4
1997)). We review de novo a trial court’s application of search and seizure law to the

facts. State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011). We will sustain a

ruling that is “reasonably supported by the record and is correct on any theory of law

applicable to the case.” Id. (internal quotation marks omitted).

   2. Applicable Law

      Consent to search operates as an exception to the state and federal

constitutional requirements of a warrant and probable cause. Carmouche v. State, 10

S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973)). Consent to search renders even a warrantless search “reasonable”

under the Fourth Amendment because “it is no doubt reasonable for the police to

conduct a search once they have been permitted to do so.” Weaver, 349 S.W.3d at 525

(citing Florida v. Jimeno, 500 U.S. 248, 250–251 (1991)). Consent must be “positive,”

but it may “be given orally or by action, or it may be shown by circumstantial evidence.”

Id. at 526. It is the State’s burden to prove voluntary consent by clear and convincing

evidence. Id. (citing State v. Valtierra, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010)).

When the defendant challenges the scope of the consent given, the standard is

objective reasonableness. Id. (citing Jimeno, 500 U.S. at 251). We consider the totality

of the circumstances, “and viewing them in the light most favorable to the trial judge’s

ultimate ruling, the legal question is, what would ‘the typical reasonable person have

understood by the exchange between the officer and the suspect?’”          Valtierra, 310

S.W.3d at 451 (citing Jimeno, 500 U.S. at 251); see Simpson v. State, 29 S.W.3d 324,

330 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).             We consider all the

circumstances of the interaction but “without regard for the subjective thoughts or

intents of either the officer or the citizen.” Weaver, 349 S.W.3d at 525–26.

                                            5
   3. Discussion

      The State contends that when Officer Stover asked appellee whether he had any

drugs or weapons “on you,” appellee would have reasonably understood that Stover

was asking for consent to search both his person as well as the vehicle because (1)

appellee was still in the driver’s seat at the time, and (2) the societal understanding of

asking whether someone has an item “on you” is that the questioner is referring to all

objects within a person’s control and not just those on a person’s body. Whether or not

those statements are true, we do not look to the subjective thoughts of the officers but

to what a reasonable person would have concluded from the totality of the

circumstances of the exchange between them. Id.

      The video of the exchange in this case shows that appellee exited the car in

response to Stover’s request to search.         Appellee immediately turned around and

extended his arms in front of him so that Stover could perform the pat down.           At

Stover’s direction, appellee then waited by the police car while Stover and others

searched his vehicle until they placed him under arrest. Considering the totality of the

circumstances and viewing them in the light most favorable to the trial court’s ruling as

we must, we agree with the trial court that a reasonable person would not have

concluded that appellee gave police consent to search his vehicle. Appellee’s actions

of getting out of the car and immediately extending his arms are consistent with

someone who has given consent to a pat down search.              The State argues that

appellee’s silence during the search of his car indicates that he understood his original

consent as encompassing his vehicle. Although silence in the face of searches beyond

the original scope of consent can sometimes indicate the subject’s further consent, in

these circumstances, we conclude that silence alone did not prove that appellee

                                            6
consented to more than a pat down search. We see nothing else in the video from

which a reasonable person could derive an objectively reasonable belief that appellee

granted additional consent. We hold that the State failed to meet its burden of showing

the existence of consent to search the vehicle by clear and convincing evidence; the

trial court thus did not abuse its discretion in supressing the marijuana cigarette found

during the search. The State’s first issue is accordingly overruled.

   B. Suppression of Cocaine Found at the Jail
       The trial court also granted appellee’s motion to suppress the cocaine found

during a strip search at the jail following his arrest. In its second and third issues, the

State argues that there is no causal connection between the vehicle search and the

strip search of appellee. The State further argues that even if a connection existed, any

taint of illegality had been sufficiently attenuated by the passage of time between the

two searches.

          1. Applicable Law
       Evidence that is the indirect product of an illegal search and seizure is generally

inadmissible against the person searched as “fruit of the poisonous tree.” Wong Sun v.

United States, 371 U.S. 471 (1963); State v. Iduarte, 268 S.W.3d 544, 550 (Tex. Crim.

App. 2008). We do not exclude all evidence that would not have been discovered “but

for” the illegality but inquire whether the particular evidence that is objected to “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; Iduarte, 268 S.W.3d at

550–551. We apply three factors in determining whether the taint of the original illegal

detention has been sufficiently purged so that the evidence is admissible: (1) temporal

proximity to the illegal detention; (2) any intervening circumstances; and (3)

“purposefulness or flagrancy of the police misconduct.” State v. Mazuca, 375 S.W.3d


                                             7
294, 303–04 (Tex. Crim. App. 2012). In the context of the seizure of physical evidence

after an illegal roadside or pedestrian stop, the court of criminal appeals has ruled that

temporal proximity to the illegal conduct is the most important factor so long as police

do not discover the intervening circumstance of an outstanding warrant for the person

illegally stopped. Id. at 306–07. The intervening circumstance of an outstanding warrant

discovered after the stop, but before discovery of physical evidence, does not

categorically remove the taint, but reduces the importance of the time factor and makes

the third factor—the flagrancy and purposefulness of police conduct—the most

important in the analysis. Id. Where there is no outstanding warrant, however, and

physical evidence is seized “shortly after” an illegal stop, that evidence “should

ordinarily be suppressed, even if the police misconduct is not highly purposeful or

flagrantly abusive of Fourth Amendment rights.” Id. at 306. 2

            2. Discussion
        The State argues that the act of placing appellee into custody at the county jail

constitutes an intervening event that was essentially equivalent to the discovery of an

outstanding warrant. Specifically, the State argues that the jail does not strip-search

new inmates to gather evidence for prosecution but to prevent the importation of

contraband such as drugs into the jail population. The State calls our attention to a

recent decision of the United States Supreme Court where the Court specifically

approved a jail policy of strip searches for all new inmates regardless of the severity of

the crime for which they are jailed. See generally Florence v. Board of Chosen

        2
           The State also argues that we should apply a “butfor” causation test to the issue of the
admissibility of the cocaine. However, the cases cited by the State to support applying a “butfor”
causation test to the admissibility of indirectly-obtained evidence refer to a rule announced by the court of
criminal appeals that requires such an analysis before excluding statements obtained in violation of a
specific section of the family code. See Roquemore v. State, 60 S.W.3d 862, 870–71 (Tex. Crim. App.
2001); Pham v. State, 175 S.W.3d 767, 772–73 (Tex. Crim. App. 2005). We see nothing in either case
that supports extending the causation analysis beyond that specific context.
                                                     8
Freeholders of County of Burlington, 132 S.Ct. 1510 (2012). The crux of the State’s

contentions is that the search for contraband, separated in time from the arrest and

motivated by non-investigatory reasons, attenuated the taint of illegality enough to

render the cocaine admissible. We disagree.

       The State provides no authority for the proposition that a strip search on

admittance to jail is an intervening circumstance. Although, according to the State, the

jail does not strip-search inmates for the primary purpose of discovering and seizing

evidence to be used at trial, an outstanding warrant is “intervening” because it provides

independent legal justification for detaining the person even if the original search or stop

was illegal.   Even when an outstanding arrest warrant does exist, “the intervening

circumstance is a necessary but never, by itself, wholly determinative factor in the

attenuation calculation.” Mazuca, 375 S.W.3d at 306. Placing a person in confinement

after an illegal stop cannot serve the same purpose because there is no independent

legal justification for placing the person in confinement in the first place. When there is

no intervening circumstance, the court of criminal appeals is clear that “temporal

proximity is the paramount factor” in the attenuation analysis. Id. The State argues

here that the strip search was not in the immediate aftermath of the vehicle search

because at least twenty-three minutes elapsed between the time police first asked

appellee for consent to search and the time they departed the scene with appellee

under arrest to transport him to the county jail. The court of criminal appeals has not

announced a bright line rule for the amount of time that must pass before evidence is no

longer discovered “immediately after” an illegal stop or search, but we conclude that the

short amount of time between appellee’s arrest and the strip search at the jail is fairly



                                             9
within the meaning of that term.3 Because the evidence was discovered such a short

time after the illegal search of appellee’s car, and there is no intervening warrant to

provide justification, we conclude that the taint of illegality has not been purged. 4

Mazuca, 375 S.W.3d at 307. We hold that the trial court did not abuse its discretion in

suppressing the cocaine as inadmissible. The State’s second and third issues are

accordingly overruled.

                                               III. CONCLUSION
        Having overruled the State’s three issues, we affirm the suppression order of the

trial court.



                                                           _______________________
                                                           NORA L. LONGORIA
                                                           Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of March, 2013.




        3
          If the precise time of appellee’s strip search on being admitted to the jail at night was recorded,
it does not appear in the record.
        4
          In what it calls its fourth issue, the State also argues that “the fact that Officer Stover stated at
the suppression hearing that he arrested Appellee only for the marijuana offense should not be
dispositive” on whether the arrest is valid. We agree that it is Texas law that “[a]n otherwise valid search
incident to arrest will be upheld as long as there was probable cause to arrest the defendant for some
offense, even if it was not the actual reason the officer arrested the defendant.” State v. Morales, 322
S.W.3d 297, 300 (Tex. App.—Dallas, no pet.)(op. on reh’g). We are unable to reach this issue because
the State does not challenge on appeal the trial court’s findings that appellant was not under arrest at the
time of the search but instead argues, without authority, that the existence of objective probable cause to
arrest appellee for the traffic violations preserves the admissibility of the cocaine found in the jail strip
search. See TEX. R. APP. P. 38.1(i).

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