      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-16-00749-CR



                                  The State of Texas, Appellant

                                                 v.

                                 Randall Lee Worrell, Appellee


    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
           NO. 45389, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The State of Texas appeals the district court’s amended order granting Randall Lee

Worell’s motion to suppress evidence of methamphetamine gathered after a traffic stop and a search.

See Tex. Code Crim. Proc. art. 44.01(a)(5). In a single issue consisting of two subparts, the State

contends that (1) the court abused its discretion by determining, without support in the record, that

the investigating officer “deliberately perpetrated an illegal stop” with “actual knowledge” that

Worrell had not committed an offense and “with egregious disregard of the right to privacy and/or

personal integrity that the Fourth Amendment protects” and (2) even if the stop was unlawful, the

officer’s discovery of Worrell’s outstanding arrest warrant was an intervening circumstance between

the stop and the discovery of the narcotics that attenuated the “taint” of such stop. We will reverse

the district court’s amended order suppressing the evidence and remand this cause for further

proceedings consistent with this opinion.
                                         BACKGROUND

               Deputy Jeremy Stewart of the Burnet County Sheriff’s Office, a certified peace officer

with almost ten years’ experience, was the only witness at the hearing on the motion to suppress.

He testified that he was on overnight duty parked at a bank parking lot when he saw Worrell driving

his dually truck and dump trailer into the parking lot of a property across the street, formerly a gas

station. Deputy Stewart stated that the gas station was no longer in business, was the source of

numerous complaints of trespassing and illegal dumping, and was placed on the sheriff’s office list

for “close patrol.” He recalled seeing several items dumped there previously, including a mattress,

bed frame, and miscellaneous household trash. Deputy Stewart testified that he saw Worrell park

in the area “where all the dumping was taking place” and in such a way that the driver’s side of the

truck and the end of the trailer were not visible. Given the darkness, the light traffic, the no-

trespassing signs that he recalled were posted on the property, and the partially-obscured area on the

side of the business where Worrell parked, Deputy Stewart testified that he thought there was no

reason for anyone but the business owner to be there, that he thought that trespassing had taken

place, and that there was a strong possibility of illegal dumping. But Deputy Stewart also testified

that the position of Worrell’s vehicle prevented him from seeing anything on the driver’s side and

the trailer’s end, including the suspected illegal dumping.

               Deputy Stewart stated that after Worrell drove away, he followed and initiated a stop.

Deputy Stewart testified that when he asked Worrell for identification, he noticed his nervous

demeanor. Deputy Stewart stated that he conducted his routine investigation steps of running

Worrell through dispatch to identify him and requesting a local warrant check. Video from the

dashboard camera in Deputy Stewart’s patrol car was admitted into evidence, showing Deputy


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Stewart speaking with Worrell and his passenger after the stop. In conversation shortly after the

stop, Worrell volunteers to Deputy Stewart that he “got out,” and they discuss certain aspects of his

parole. Minutes into the stop, the dispatcher is heard on the video advising Deputy Stewart that

Worrell had an active warrant. Next, Deputy Stewart is heard telling Worrell that he was being

detained pending confirmation of the warrant. Conversations between Deputy Stewart and the

dispatcher captured on the video show that Deputy Stewart waited at the scene for Worrell’s boss

to take the trailer that Worrell had been using and for a wrecker to impound Worrell’s truck because

it had no insurance and Worrell’s passenger had no valid driver’s license. After the dispatcher

reported that she had a teletype confirming Worrell’s warrant, Deputy Stewart arrested Worrell and

drove him to jail. Although the record of the suppression hearing stops before discussion of

precisely how and when the narcotics were found, Worrell’s motion to suppress states that he was

arrested for possession of a controlled substance as a result of his detention and the search that

followed his arrest.

               A grand jury indicted Worrell for possession of a controlled substance

(methamphetamine), and he filed a motion to suppress evidence of that offense, contending that his

detention and the search that followed were unlawful. The district court granted Worrell’s motion,

which the State appealed. The court made these findings and conclusions:


                                     I. FINDINGS OF FACT

       1.    The Court had the opportunity to evaluate the demeanor and credibility of
             Jeremy Stewart, the State’s sole witness.

       2.    Officer Jeremy Stewart observed the Defendant’s vehicle enter and park on the
             edge of an open parking lot that is fronted by a state highway adjacent to a



                                                 3
     closed business for approximately five minutes at approximately 8:25p.m., on
     the night of October 6, 2015.

3.   Nothing about the location of the Defendant, the time of night, the type of
     vehicle driven by the Defendant, or the fact that the Defendant was pulling a
     construction trailer would raise a level of suspicion to an objectively reasonable
     officer.

4.   No chains or barriers, of any kind, restricted entry to the parking lot or placed
     the public on notice that entry was forbidden.

5.   No credible evidence was presented that the public, or this defendant, was
     placed on notice that entry to the parking lot was forbidden.

6.   No credible evidence was presented that there were any “No Trespassing” signs
     posted in any visible location that provide notice to the public, or this
     defendant, that entry to the parking lot was forbidden.

7.   Despite maintaining constant view of the vehicle from the time it entered the
     parking lot until the time it exited the parking lot, Officer Jeremy Stewart never
     saw the Defendant, or anyone else, exit the vehicle, or do anything illegal, or
     even objectively suspicious.

8.   Officer Jeremy Stewart agreed that his offense report states that, “At this time
     I thought that maybe the truck dumped something out of the trailer or possibly
     committed some type of theft from around the building,” despite the fact that
     both options are objectively impossible without someone exiting the vehicle,
     and Officer Stewart knew that no person had exited the vehicle.

9.   Officer Jeremy Stewart maintained that he thought the defendant “possibly
     dumped something or committed some type of theft.”

10. Officer Jeremy Stewart observed no specific facts that would suggest that the
    Defendant, or anyone associated with the Defendant, illegally dumped anything
    or committed any kind of theft.

11. It would be objectively impossible for this defendant to have “dumped
    something” or “possibly committed some type of theft” without someone
    exiting the Defendant’s vehicle while it was stopped.

12. Officer Jeremy Stewart observed only activity or conduct that could be
    characterized as perfectly innocent conduct.



                                          4
13. Officer Jeremy Stewart observed the Defendant resume travel onto the public
    roadway.

14. Officer Jeremy Stewart initiated a traffic stop of the Defendant.

15. Officer Jeremy Stewart initiated the traffic stop despite actual knowledge that
    the Defendant had not “dumped something or committed some type of theft.”


                          II. CONCLUSIONS OF LAW

1. The officer’s articulated basis for the stop of the defendant constitutes, at most,
   a mere hunch within the gambit of Terry vs. Ohio.

2. The Defendant was not trespassing on the night of October 6, 2015.

3. Officer Jeremy Stewart lacked reasonable suspicion for the stop of the Defendant.

4. The stop was an objectively unreasonable violation of Defendant’s Fourth
   Amendment right to be free from unreasonable searches and seizure.

5. The discovery of the warrant would not have occurred but for the police
   misconduct that occurred with actual, first hand, knowledge that the alleged
   reason for the stop had not occurred and was objectively impossible.

6. The reason for the stop was not based upon a mistaken understanding of the law
   and a subjective belief that a violation had occurred as in State v. Mazuca, but
   instead, this stop was the result of actions by an officer with actual, first hand,
   knowledge that the alleged reason for the stop had not occurred and could not
   possibly have occurred as he had observed the Defendant the entire time that the
   Defendant was stopped and knew that the Defendant had never exited his vehicle
   and that “dumping” and/or “theft” were objectively impossible without exiting
   the vehicle.

7. The intervening discovery of the warrant did not attenuate the illegality of the
   stop. This officer deliberately perpetrated what he knew, or should have known,
   to be an illegal stop (based on reason that he knew was false) with no reasonable
   explanation other than a hope or expectation that the stop might generate some
   legitimate after-the-fact justification to arrest and/or search with egregious
   disregard of the right to privacy and/or personal integrity that the Fourth
   Amendment protects.



                                          5
       8. To admit the physical evidence based on the fortuity that an arrest warrant
          happened to come to light after the illegal stop, but before the evidence was
          discovered, would perversely serve to encourage official misconduct by this
          officer, as well as other law enforcement officers, in the future.


                                           DISCUSSION

               The State contends that the court abused its discretion by determining, without

support in the record, that Deputy Stewart “deliberately perpetrated an illegal stop” with “actual

knowledge” that Worrell had not committed an offense. The State further contends that even if the

stop was unlawful—which it does not concede—Deputy Stewart’s discovery of Worrell’s

outstanding arrest warrant was an intervening circumstance between the stop and the discovery of

the narcotics that attenuated the “taint” of such stop.

Standard of review

               We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the zone of

reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). When a trial court makes explicit fact

findings, we determine whether the evidence viewed in the light most favorable to the trial court’s

ruling supports the fact findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).

We give almost complete deference to the trial court’s determination of historical facts, but we

review the court’s application of the law to those facts de novo. Story, 445 S.W.3d at 732; Dixon,

206 S.W.3d at 590. We are not bound by the trial court’s findings and conclusions that are not

supported by the record. State v. Whittington, 401 S.W.3d 263, 271 (Tex. App.—San Antonio 2013,



                                                  6
no pet.); see State v. Mazuca, 375 S.W.3d 294, 308-09 (Tex. Crim. App. 2012) (rejecting trial court’s

conclusion as to “flagrancy of the police action” that was not supported by record).

Attenuation doctrine

                To enforce the Fourth Amendment’s prohibition against unreasonable searches and

seizures, courts sometimes exclude evidence obtained by unconstitutional police conduct. Utah v.

Strieff, 136 S. Ct. 2056, 2059 (2016); see Tex. Code Crim. Proc. art. 38.23(a) (setting forth

exclusionary rule: “No evidence obtained by an officer or other person in violation of 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.”).

But neither the Fourth Amendment nor the Texas exclusionary rule in article 38.23(a) of the Code

of Criminal Procedure requires suppression of evidence that was not obtained as a result of some

illegality. State v. Jackson, 464 S.W.3d 724, 741 (Tex. Crim. App. 2015). Evidence is not obtained

in violation of the law within the plain meaning of article 38.23 if the “taint” from the illegality has

dissipated by the time the evidence is acquired. Wehrenberg v. State, 416 S.W.3d 458, 469 (Tex.

Crim. App. 2013) (citing Johnson v. State, 871 S.W.2d 744, 750 (Tex. Crim. App. 1994)).

                The federal attenuation doctrine provides that evidence is admissible when the

connection between unconstitutional police conduct and the evidence is remote or has been

interrupted by some intervening circumstance, so that “the interest protected by the constitutional

guarantee that has been violated would not be served by suppression of the evidence obtained.”

Strieff, 136 S. Ct. at 2061. In such cases, the link between the unconstitutional conduct and the

discovery of the evidence is considered too “attenuated” to justify suppression. Id. at 2059. The



                                                   7
Court of Criminal Appeals has “adopted the federal attenuation doctrine as being consistent with the

express provisions of Article 38.23 because ‘evidence sufficiently attenuated from the violation of

the law is not considered to be ‘obtained’ therefrom.’” Wehrenberg, 416 S.W.3d at 469 (quoting

Johnson, 871 S.W.2d at 750-51).

               To determine whether the attenuation doctrine applies here and whether evidence of

the narcotics is admissible, we consider three factors: (1) the temporal proximity of the stop to the

seizure of the evidence, (2) the presence of intervening circumstances, and particularly, (3) the

purpose and flagrancy of the official misconduct. See Jackson, 464 S.W.3d at 731; Mazuca,

375 S.W.3d at 302. Discovery of an arrest warrant—occurring after an unlawful stop but before

discovery and seizure of evidence—may be an intervening circumstance that “attenuate[s] the taint”

of the unlawful stop when there is no purposeful or flagrant misconduct by police. Mazuca,

375 S.W.3d at 310; see Strieff, 136 S. Ct. at 2064. In such circumstances, discovery of the arrest

warrant changes the importance of the attenuation factors in that “‘the importance of the temporal

proximity factor decreases,’” and the third factor, “‘the purposefulness and/or flagrancy of the police

misconduct, vel non, becomes of vital importance.’” Jackson, 464 S.W.3d at 731-32 (quoting

Mazuca, 375 S.W.3d at 306-07).

               Worrell did not address the attenuation doctrine or its three-factor test at the hearing

on the motion to suppress; rather, he contended that the discovery of the arrest warrant and anything

beyond the stop was irrelevant:


        And irregardless [sic] of whether or not a traffic warrant was discovered later is not
        relevant to the issue presented here today because the only real issue is was there
        reasonable suspicion . . . that there was, in fact, criminal activity going on, about to
        happen, or had just happened. So the only thing that I will take issue with is . . . the


                                                   8
       fact that a warrant was discovered later would somehow affect this because it
       doesn’t.

        ....

       This motion to suppress is about the stop, and that’s all. We’re going beyond the
       stop, so this is not relevant to what we have before the court.

       ....

       This is not relevant to the issue of the traffic stop. What happened down at the
       sheriff’s department is just not relevant to the traffic stop.


Apparently persuaded by these arguments, the district court did not make findings and conclusions

on the three factors of the attenuation doctrine, the court agreed not to view the dash-cam video

beyond the point where Deputy Stewart believed the warrant was confirmed and Worrell was taken

into custody, and the court sustained Worrell’s objection to Deputy Stewart’s testimony about

routine actions he took regarding his patrol vehicle after he had taken Worrell to jail. However,

Worrell’s arguments conflict with controlling precedent showing that an arrest warrant discovered

after an unlawful traffic stop but before a search yielding narcotics can be relevant. See Mazuca,

375 S.W.3d at 310 (holding that although defendant’s initial stop was illegal, evidence of ecstasy

found in his pants was admissible because arresting officers’ behavior was not particularly

purposeful or flagrant and discovery of defendant’s outstanding arrest warrants broke causal

connection between stop and discovery of ecstasy); see also Strieff, 136 S. Ct. at 2062, 2064 (holding

that evidence of methamphetamine and drug paraphernalia that officer seized in search incident to

arrest was admissible, even if he lacked reasonable suspicion to stop defendant, because officer’s

discovery of arrest warrant attenuated connection between unlawful stop and evidence seized

incident to arrest). We proceed to consider the three attenuation-doctrine factors.



                                                  9
Attenuation-doctrine factors weigh against suppression of the evidence

               1. Temporal proximity

               As to the first factor, temporal proximity between the stop and obtaining the evidence,

the record indicates that Worrell’s traffic stop did not occur close to the time that the evidence of

narcotics was discovered. The dash-cam video shows that the narcotics had not been discovered

between the time that Deputy Stuart stopped Worrell and almost two hours later when they arrived

at the garage entry to the jail, but the narcotics were discovered sometime after that. Because the

narcotics were not found shortly after the stop, this factor weighs against suppression. Mazuca,

375 S.W.3d at 306, 308 (noting that temporal-proximity factor “usually favors suppression of

evidence that is discovered in the immediate aftermath of an illegal pedestrian or roadside stop”).1

               2. Intervening circumstances

               The second factor, the presence of intervening circumstances, also weighs against

suppression. Deputy Stewart’s discovery of Worrell’s outstanding arrest warrant, within minutes

of the stop, qualified as an intervening circumstance between the stop and the search that ultimately

yielded the narcotics. See Mazuca, 375 S.W.3d at 310; see also Strieff, 136 S. Ct. at 2064. That

search was conducted only after Worrell had been arrested for the outstanding warrant and was a

result of that arrest, not a result of the traffic stop. Further, the arrest warrant predated Deputy

Stewart’s investigation and was entirely unconnected to the stop. See Strieff, 136 S. Ct. at 2062.




       1
         Even if the narcotics had been discovered “in the immediate aftermath” of the stop, the
temporal-proximity factor does not weigh heavily when there is an intervening discovery of an arrest
warrant. State v. Mazuca, 375 S.W.3d 294, 306-07 (Tex. Crim. App. 2012) (“[W]hen an outstanding
arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the
importance of the temporal proximity factor decreases.”).

                                                 10
               3. Purpose and flagrancy of official misconduct

               The third and most important factor, the “purpose and flagrancy of the official

misconduct,” also weighs against suppression. Here, the district court determined that Deputy

Stewart “deliberately perpetrated an illegal stop” with “actual knowledge” that Worrell had not

committed an offense and “with egregious disregard of the right to privacy and/or personal integrity

that the Fourth Amendment protects.” No evidence in the record supports these determinations.

               The court could not have reasonably found that Deputy Stewart “knew that no person

had exited the vehicle” and that he “initiated the traffic stop despite actual knowledge that the

Defendant had not ‘dumped something or committed some type of theft.’” The evidence in this

record is that Deputy Stewart could not see the illegal acts that he suspected because Worrell had

parked in such a way that the driver’s side of the truck and the end of the trailer were not visible.

Deputy Stewart consistently testified that because of his obstructed view of the driver’s side of the

truck and the back side of the trailer, he could not see whether anyone had exited the vehicle or

whether any illegal actions had occurred:


       Q. Did you ever see him [Worrell] get out of his vehicle?

       A. No, I could not.

       ....

       Q. And in order to have committed a theft an individual would have had to have
       gotten out of the truck and gone and done something, right?

       A. Correct, but I did not have a visual view of the driver’s side of the truck.

       ....

       Q. But this vehicle never–you never saw him [Worrell] go behind the building, did
       you?


                                                 11
        A. No, but again, I never saw the driver’s side of the vehicle, so I cannot confirm or
        deny that nobody exited the driver’s side of the vehicle and may have dumped
        something behind the building.


The court did not make a finding that Deputy Stewart’s testimony about being unable to see the

driver’s side of the truck or the end of the trailer was not credible. The court did not state that it

disbelieved Deputy Stewart’s testimony that he was unable to confirm or deny whether anyone exited

the driver’s side of the vehicle and may have dumped something behind the building. Instead, the

court’s finding went beyond the facts in this record and reasonable inferences from those facts to find

that Deputy Stewart initiated the stop “despite actual knowledge that the Defendant had not ‘dumped

something or committed some type of theft.’” Nothing in the record indicates that Deputy Stewart

had any personal animosity toward Worrell or that Deputy Stewart had any history of misconduct

that would support the court’s finding that Deputy Stewart knowingly initiated an unjustified and

illegal traffic stop. See Strieff, 136 S. Ct. at 2063 (noting that there was no evidence that officer’s

stop was part of some systemic or recurrent police misconduct). Further, nothing in the record

indicates that Deputy Stewart’s conduct was “egregiously abusive,” that he exhibited any awareness

of impropriety of his stop, or that the manner in which he conducted the stop was calculated to cause

surprise, fright, or confusion. See Mazuca, 375 S.W.3d at 309 & n.71 (deciding that element of

purposefulness was not met because record did not support conclusion that officer’s conduct during

course of unlawful traffic stop was in flagrant derogation of defendant’s Fourth Amendment rights).

               From its unsupported fact findings the court then drew incorrect legal conclusions,

including that Deputy Stewart had “actual, first hand, knowledge that the alleged reason for the stop

had not occurred,” that Deputy Stewart “deliberately perpetrated what he knew, or should have

known, to be an illegal stop,” and that Deputy Stewart acted “with egregious disregard of the right


                                                  12
to privacy and/or personal integrity that the Fourth Amendment protects.” Contrary to the court’s

conclusions, this record shows no “deliberately perpetrated” illegal stop, no initiation of a traffic stop

with “actual knowledge” that Worrell had not “dumped something or committed some type of theft,”

and no “egregious disregard” for Fourth Amendment rights. Rather, the record reflects that the stop

occurred in connection with Deputy Stewart’s investigation of suspected trespassing, theft, and

illegal dumping in the parking lot of a vacant property. That property had been the source of

numerous complaints of trespassing and illegal dumping, that property was where Deputy Stewart

had previously seen a mattress, bed frame, and miscellaneous household trash dumped, and that

property had been placed on the sheriff’s office list for “close patrol.” See Mazuca, 375 S.W.3d at

308-09 (noting that element of purposefulness was lacking because officers who stopped defendant

had been tasked with looking for traffic violators, not to find motorists with outstanding warrants

to conduct searches incident to arrest); see also Strieff, 136 S. Ct. at 2064 (noting that officer’s errors

in judgment while investigating suspected drug house did not rise to level of “purposeful or flagrant

violation of [defendant’s] Fourth Amendment rights”); Leming v. State, 493 S.W.3d 552, 565 (Tex.

Crim. App. 2016) (noting that determination that reasonable suspicion exists need not rule out

possibility of innocent conduct; indeed, principal function of detaining officer’s investigation is to

resolve that very ambiguity and establish whether activity is in fact legal or illegal).

                Deputy Stewart’s good-faith belief in the lawfulness of the traffic stop was even

acknowledged by Worrell’s counsel at the hearing on the motion to suppress: “You know, Judge,

I don’t—I don’t doubt that Officer Stewart believed that he had reasonable suspicion, but the

problem is that his reasonable suspicion was a subjective opinion that he made.” Recognition that

Deputy Stewart “believed that he had reasonable suspicion” for the stop is plainly inconsistent with



                                                    13
the findings and conclusions that Deputy Stewart made the stop with actual knowledge that it was

unjustified and illegal. We are not bound by unsupported findings and conclusions. See Whittington,

401 S.W.3d at 271; see also Mazuca, 375 S.W.3d at 308-09. Here, as in Mazuca, the court’s

findings and conclusions “effectively presume” purposeful and flagrant misconduct from what it

considered an unlawful stop alone, rather than assessing the character of that stop—“and of any

subsequent police conduct”—to determine whether it indicates that the officer “actually behaved

purposefully or flagrantly” in this case. See Mazuca, 375 S.W.3d at 310 (emphases in original).

       Applying the three attenuation-doctrine factors to the evidence in this record—even

considered in the light most favorable to the district court’s ruling—weighs against suppression. The

evidence of narcotics is admissible because that evidence was sufficiently attenuated from the

complained-of traffic stop as to be considered separate from it, i.e., not “obtained” from the stop.

See Wehrenberg, 416 S.W.3d at 469; Johnson, 871 S.W.2d at 750-51. The search that yielded the

narcotics was conducted only as a result of Worrell’s arrest for the outstanding warrant, not as a

result of the stop. Assuming that the stop of Worrell was unlawful, nothing in this record shows the

level of purposefulness or flagrancy of Deputy Stewart’s conduct that the court’s findings and

conclusions attribute to him. See Mazuca, 375 S.W.3d at 310; see also Strieff, 136 S. Ct. at 2064.

In the absence of such purposeful or flagrant conduct, Deputy Stewart’s discovery of Worrell’s

outstanding arrest warrant was an intervening circumstance that was “wholly independent” of the

stop, broke the causal connection between the stop and the discovery of the narcotics, and purged

the “taint” of the stop, if any. See Mazuca, 375 S.W.3d at 310; see also Strieff, 136 S. Ct. at 2063.

The order granting suppression of the evidence, on this record, was outside the zone of reasonable

disagreement and constituted an abuse of discretion. Cf. Story, 445 S.W.3d at 732; Dixon,



                                                 14
206 S.W.3d at 590; see State v. Chupik, No. 03-09-00356-CR, 2011 Tex. App. LEXIS 7597, at *8

(Tex. App.—Austin Sept. 15, 2011, no pet.) (mem. op., not designated for publication) (concluding

that court’s order granting motion to suppress that was not supported by evidence was abuse of

discretion). We sustain the State’s appellate issue.


                                         CONCLUSION

               We reverse the district court’s amended order granting suppression of the evidence

and remand this cause for further proceedings consistent with this opinion.




                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Reversed and Remanded

Filed: July 26, 2017

Do Not Publish




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