MASSEY, JAMES CALVIN v. the State of Texas

In the Court of Criminal

Appeals of Texas

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No. PD-0170-22

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JAMES CALVIN MASSEY,

Appellant

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review

From the Second Court of Appeals

Tarrant County

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YEARY, J., announced the judgment of the Court and filed an

opinion in which KELLER, P.J., and KEEL and SLAUGHTER, JJ., joined.

NEWELL, J., filed a concurring opinion in which HERVEY, RICHARDSON,

and SLAUGHTER, JJ., joined. WALKER and MCCLURE, JJ., dissented.

After legally detaining Appellant for lack of a proper registration

sticker on his truck, an officer conducted an investigative pat-down

MASSEY – 2

search of Appellant’s person. When Appellant forcefully resisted that

search, the officer tased and handcuffed him. The officer subsequently

discovered methamphetamine on the ground near where Appellant had

been standing.

In the trial court, Appellant filed a motion to suppress the

methamphetamine. In response to that motion, the trial court decided

that the officer’s investigative pat-down search (also known as a Terry

search) was illegal. 1 But the trial court nevertheless concluded that the

taint of the illegal Terry search was attenuated by Appellant’s

commission of the dual offenses of resisting search and evading

detention. 2 As a result, the trial court denied his motion.

The Second Court of Appeals reversed Appellant’s conviction. It

explained that Appellant’s commission of resisting search and evading

detention in response to the officer’s unlawful pat-down did not

constitute “a severe departure from the common, if regrettable, range of

responses” that should be expected. It therefore concluded that these

offenses did not “constitute intervening circumstances” for purposes of

an attenuation-of-taint analysis, under Utah v. Strieff, 579 U.S. 232

1 Whether the investigative pat-down search was valid under the

criteria announced by the United States Supreme Court in Terry v. Ohio, 392

U.S. 1 (1968), is not before us. For purposes of resolving the State’s petition for

discretionary review, we assume without deciding that it was not valid.

2 See TEX. PENAL CODE § 38.03(a) (“A person commits an offense if he

intentionally prevents or obstructs a person he knows is a peace officer . . . from

effecting . . . [a] search . . . of the actor . . . by using force against the peace

officer[.]”); id. § 38.03(b) (“It is no defense to prosecution under this section that

the . . . search was unlawful.”); id. § 38.04(a) (“A person commits an offense if

he intentionally flees from a person he knows is a peace officer . . . attempting

lawfully to . . . detain him.”).

MASSEY – 3

(2016). Massey v. State, 649 S.W.3d 500, 518 (Tex. App.—Fort Worth

2022). We granted the State’s petition for discretionary review to

examine the court of appeals’ decision. 3

I. BACKGROUND

Appellant pled guilty to possession of methamphetamine in an

amount more than one gram but less than four grams. Pursuant to a

plea agreement, he was sentenced to five years’ confinement in the

penitentiary. TEX. HEALTH & SAFETY CODE § 481.116(c). 4 Appellant

preserved his right to appeal the trial court’s ruling on his pretrial

motion to suppress the methamphetamine, which he contended was

obtained illegally because the arresting officer, among other things,

3 The Court granted the State’s first ground for review, which asked:

“When a defendant commits a new offense immediately following an illegal

search or seizure, does the new offense cease to be an intervening circumstance

attenuating taint unless it is violent and/or unforeseen?” We also granted the

State’s third ground for review: “Is an officer in a public place not in a ‘lawful

place’ under the plain view analysis merely because a Fourth Amendment

violation occurred?” But our resolution of the State’s first ground renders

discussion of the State’s third ground moot.

4 At the same time, Appellant was adjudicated guilty on a prior

indictment for a prior commission of the same offense, for which he had

previously been placed on deferred adjudication. For that prior offense,

Appellant was given another five-year sentence, and the two sentences were

ordered to run concurrently. The court of appeals held that the trial court’s

decision to proceed to adjudicate this prior conviction for possession of

methamphetamine was supported by additional evidence, other than

Appellant’s commission of the later offense. The State showed that Appellant

failed to report to his probation officer for three consecutive months. So, the

court of appeals’ holding about whether evidence obtained after the illegal pat-

down must be suppressed applies only with respect to the more recent

conviction. Massey, 649 S.W.3d at 512. We refused Appellant’s petition for

discretionary review, in which he challenged the court of appeals’ resolution of

his appeal of the prior conviction.

MASSEY – 4

conducted an illegal pat-down search.

At a hearing on Appellant’s motion to suppress, Sergeant Richard

Lukowsky was called to testify. Lukowsky worked with the Azle Police

Department, just outside of Fort Worth. In addition to his testimony, his

body-cam footage was admitted showing his interactions with Appellant

on the day of the arrest.

The evidence showed that Lukowsky was patrolling at 11 a.m., on

February 16, 2020, when he spotted a pickup truck without a proper

registration sticker. Lukowsky followed the truck into a gas

station/convenience store parking lot. By the time Lukowsky caught up

with Appellant, Appellant was already out of his truck, near the entry

to the store.

Lukowsky asked Appellant “to step over to where [Lukowsky]

was.” Appellant complied and walked over. Appellant then asked what

was going on, and Lukowsky told Appellant that “his registration was

out” on his truck. 5 With Appellant’s permission, Lukowsky retrieved

Appellant’s wallet from the truck and handed it to Appellant, who in

turn handed his driver’s license back to Lukowsky.

According to Lukowsky, in the course of that exchange, he noticed

that Appellant’s hands were shaking more than what he considered

5 At first, Lukowsky testified that Appellant’s truck did not have a

registration sticker. But, as explained earlier, at another point in his

testimony, he claimed that he informed Appellant that “his registration was

out” on his truck. Whether the registration sticker was entirely missing or

merely expired makes no difference to the issues we address in this opinion.

Suffice it to say that, for the sake of this opinion, we operate on the

presumption that Appellant’s initial detention was legal based on the status of

his truck’s registration.

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normal for such an encounter, and Appellant otherwise appeared very

nervous. Knowing that this was a “high drug area,” that narcotics

arrests had been made at this location on “several” occasions, and that

he was by himself, Lukowsky instructed Appellant “to turn around so

[he] could pat [Appellant] down just for [Lukowsky’s] safety.”

At first, Appellant seemed ready to comply, turning around and

raising his arms slightly at the elbow. But when Lukowsky began to pat

on the outside of the right-hand pocket of Appellant’s cargo shorts,

Appellant reached down toward his left-hand pocket. Lukowsky grabbed

Appellant’s hand and ordered him not to go into his pocket. But

Appellant persisted in moving toward the pocket, “ripped” away from

Lukowsky’s hand, 6 and turned around to face Lukowsky, while slowly

backing away from him.

At this point, Lukowsky called for backup and drew his weapon,

intending to handcuff Appellant. Appellant told Lukowsky “something

along the lines” of “I’m not going to go with you,” and “you’re just going

to have to shoot me.” Eventually Appellant approached and began to

move around an air pump machine, which he grasped in such a way that

Lukowsky could not see his left hand.

At that point, an off-duty Fort Worth police officer arrived and

tried to assist Lukowsky in taking Appellant into custody. Lukowsky

ordered Appellant to comply several times, and after he then warned

6 Lukowsky used the descriptor “ripped” in his testimony. From the

body-cam video, the trial court gleaned that Appellant “resisted the search by

tensing his left arm, pulling away from Sgt. Lukowsky, and physically

grabbing Sgt. Lukowsky’s left arm.” Trial Court’s Findings of Fact and

Conclusions of Law at 4. Our review of the body-cam footage bears this

description out.

MASSEY – 6

Appellant and the off-duty officer that he was about to tase Appellant,

Lukowsky carried through on his warning and tased Appellant, who

then fell to the ground. With the continuing help of the off-duty Fort

Worth officer, Lukowsky handcuffed Appellant.

Lukowsky then discovered a bag of methamphetamine on the

ground next to the air pump machine. As Lukowsky’s body-cam footage

confirms, the bag had not been there only moments before. Lukowsky

believed that Appellant had retrieved it from his left-hand pocket

unseen and then dropped it as a result of being tased.

In its written findings of fact and conclusions of law, the trial

court found that the initial detention of Appellant was justified—

because of the absence of a valid registration sticker on Appellant’s

truck. In spite of that, the court found that Lukowsky’s initial Terry pat-

down search of Appellant was illegal because he lacked reasonable

suspicion to justify it. But the trial court also found that Appellant’s

conduct in response to Lukowsky’s illegal Terry pat-down search

constituted the offenses of: (1) resisting search, and (2) evading

detention. And as a result, the trial court concluded, the “taint” from

the primary misconduct was effectively “purged” by Appellant’s

commission of the new offenses.

The court of appeals rejected the trial court’s conclusions. Massey,

649 S.W.3d at 516−18. Citing court opinions from other jurisdictions,

the court of appeals essentially held that “milder cases of resisting arrest

[do] not constitute intervening circumstances” for purposes of an

attenuation of taint analysis. Id. at 518. The court explained that

“[o]ther courts have held that simply running away from the detaining

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officers or attempting to dispose of evidence will not necessarily

dissipate the taint.” Id. To hold otherwise, the court observed, would

simply encourage the police to engage in improprieties in the hope that

a suspect’s adverse reaction (so long as it was not too extreme) would

generate incriminating evidence. Id. Having found no intervening

circumstance, the court of appeals then emphasized the temporal

proximity of the discovery of the evidence of the primary misconduct

over the purposefulness and flagrancy of the police misconduct and

concluded that the taint was not attenuated. Id. (citing State v. Jackson,

464 S.W.3d 724, 732 (Tex. Crim. App. 2015)).

II. ANALYSIS

A. Attenuation of Taint

The federal exclusionary rule requires the suppression of

evidence obtained either directly or derivatively (“fruit of the poisonous

tree”) from police conduct that violates the Fourth Amendment. Strieff,

579 U.S. at 237. But whether the discovery of evidence was the “fruit” of

Fourth Amendment misconduct is not a strictly “but/for” inquiry.

Jackson, 464 S.W.3d at 731. Suppression of evidence is a “last resort,”

not a “first impulse.” State v. Mazuca, 375 S.W.3d 294, 300 (Tex. Crim.

App. 2012) (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)).

Accordingly, the United States Supreme Court has identified exceptions

to the exclusionary rule, one of which is the attenuation-of-taint

doctrine. Strieff, 579 U.S. at 238.

Under the attenuation-of-taint doctrine, “[e]vidence is admissible

when the connection between unconstitutional police conduct and the

discovery of evidence is remote or has been interrupted by some

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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.’” Id. (quoting Hudson, 547 U.S. at

593). To determine whether this connection is sufficiently “remote or has

been interrupted,” the United States Supreme Court has required courts

to consider three factors known as the Brown factors: (1) the temporal

proximity between the misconduct and discovery of the evidence; (2) the

presence of any intervening circumstances; and (3), the purpose and

flagrancy of the police misconduct. Id. at 239 (quoting Brown v. Illinois,

422 U.S. 590, 603−04 (1975)). Also, this Court said, in Mazuca, that

either the first factor (“temporal proximity”) or the third factor (“purpose

and flagrancy”) will take on greater significance in any given case,

depending upon whether the second factor (any “intervening

circumstances”) is present. Jackson, 464 S.W.3d at 732 (quoting

Mazuca, 375 S.W.3d at 306−07). So, when there is an intervening

circumstance as contemplated by Brown, the Brown inquiry emphasizes

the third factor—the purpose and flagrancy of the police misconduct. Id.,

at 733 (“[G]iven such an intervening circumstance, Mazuca dictates that

a reviewing court should emphasize the third Brown factor, which asks

whether the police purposefully and flagrantly disregarded Appellee’s

Fourth Amendment rights.”).

B. A “New Offense” as an Intervening Circumstance

Many courts, including this Court, have recognized that “new

offenses” committed by a person who is the focus of alleged police

misconduct are necessarily intervening circumstances as contemplated

by Brown. In addition, many of those courts seem to have concluded that

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the commission of a new offense, when considered as an intervening

circumstance, will almost invariably outweigh both of the other two

Brown factors and establish a per se attenuation of taint, at least with

respect to evidence of the new offense itself. Thus, if a defendant

commits a new offense in response to police misconduct, the police

misconduct will almost never result in suppression of evidence of the

new offense that was committed in reaction or in response to it.

In State v. Iduarte, 268 S.W.3d 544 (Tex. Crim. App. 2008), for

example, a suspect pulled a gun on a police officer who had entered his

apartment without a warrant during a domestic-dispute call. The trial

court found that “the officer’s actions overstepped the limits of his

authority.” Although the new offense would likely not have occurred “but

for” the alleged police misconduct, this Court decided that acquisition of

evidence pertaining to this new aggravated assault “was not causally

connected to the officer’s allegedly illegal entry.” Id. at 551. The Court

explained:

[The exclusionary rule] does not . . . provide limitless

protection to one who chooses to react illegally to an

unlawful act by a state agent. If that were allowed, the

genuine protection that the exclusionary rule provides

would be undermined. Here, evidence of the charged

offense did not exist before the officer’s challenged actions

because the charged offense had not yet occurred; the

evidence showed a subsequent independent criminal act

that was not causally connected to an unlawful entry by a

state agent. Therefore, the exclusionary rule does not apply

to this case.

Id. The Court essentially treated the suspect’s illegal response to the

police officer’s alleged misconduct as an intervening circumstance that

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was sufficient, by itself, to break the causal connection—even without

reference to the other two Brown factors. 7

Other courts, both before and since this Court decided Iduarte,

have ruled similarly, that evidence of the commission of an offense in

response to unconstitutional police conduct will not be suppressed under

the exclusionary rule. 8 Like this Court in Iduarte, these courts seem to

have reached that conclusion without explicitly considering any Brown

factors other than the second one—“presence-of-intervening-

circumstances.” 9 They almost seem to treat that intervening

7 See George E. Dix & John M. Schmolesky, 40 TEXAS PRACTICE:

CRIMINAL PRACTICE AND PROCEDURE § 7:59, at 383 (3d ed. 2011) (explaining

that, “[i]f a defendant is charged with criminal activity committed in the wake

of unlawful law enforcement behavior, several courts have held that the

defendant’s criminal conduct itself constitutes a significant intervening

circumstance in determining whether the taint of the officers’ illegal conduct

tainted the evidence of the defendant’s criminal act. That criminal conduct may

even be itself sufficient to automatically attenuate the taint.”); see also id., at

386 (suggesting, near the end of Section 7:59, that this understanding was

adopted by this Court in Iduarte).

8 E.g., People v. Villarreal, 152 Ill.2d 368, 380, 604 N.E.2d 923, 929

(1992); State v. Mierz, 127 Wash.2d 460, 471−75, 901 P.2d 286, 291−94 (1995);

United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982); State v.

Brocuglio, 264 Conn. 778, 790, 826 A.2d 145, 153 (2003); United States v.

Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005); State v. Herrerra, 211 N.J. 308,

336, 48 A.3d 1009, 1026 (2012); State v. Suppah, 358 Or. 565, 577, 369 P.3d

1108, 1115 (2016); People v. Tomaske, 440 P.3d 444, 449 (Colo. 2019).

9 See, e.g., United States v. Bailey, 691 F.2d at 1017 (“Unlike the

situation where in response to unlawful police action the defendant merely

reveals a crime that already has been or is being committed, extending the

fruits doctrine to immunize a defendant from arrest for new crimes gives a

defendant an intolerable carte blanche to commit further criminal acts so long

as they are sufficiently connected to the chain of causation started by the police

misconduct. This result is too far reaching and too high a price for society to

pay in order to deter police misconduct.”); State v. Mierz, 127 Wash.2d at 475,

MASSEY – 11

circumstance offense as all-by-itself determinative of whether the

exclusionary rule applies. 10

C. A “New Offense” as an Intervening Circumstance Exposing a

“Different Offense”

Of course, the question in this case is not whether to suppress

evidence of Appellant’s new offenses of resisting arrest and evading

detention. 11 Insofar as we know, Appellant has not even been formally

charged with either of those offenses. Instead, the question is whether

901 P.2d at 293 (“Encouraging citizens to test their beliefs through force simply

returns us to a system of trial by combat. The proper location for dealing with

such issues in a civilized society is in a court of law.”); see also, e.g., Martinez

v. State, 91 S.W.3d 331, 340 (Tex. Crim. App. 2002) (“Appellee’s argument [that

failure to give statutorily required warnings prior to his grand jury testimony

should result in exclusion of evidence that he perjured himself], carried to its

extreme logical conclusion, would provide legal protection to the murderer of a

police officer, who proves that the officer detained him without articulable

suspicion prior to the murder.”).

10 But see State v. Tapia, 414 P.3d 332, 340−41 (N.M. 2018) (applying a

full-blown Brown attenuation-of-taint analysis to conclude that the new

offense of signing a false name on a traffic citation did not necessitate excluding

evidence of that forgery on the ground that the initial traffic stop had been

unlawful).

11 There are a total of four offenses to be considered in this case: 1) the

initial offense of driving without a valid registration sticker; the subsequent

offenses of 2) resisting search and 3) evading detention; and 4) the ultimately

discovered offense of possession of methamphetamine. Under Iduarte,

exclusion of evidence of the offenses of 2) resisting search and 3) evading

detention would not be required even if there was police misconduct preceding

those offenses, under the “new offenses” rationale. But that does not

necessarily resolve the question of whether evidence of 4) methamphetamine

possession—an offense that was already underway even before the traffic stop

occurred, but which did not come to light until after Appellant had committed

offenses 2) and 3)—may also be admitted absent consideration of the full

panoply of Brown factors.

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Appellant’s commission of those new offenses constitutes an intervening

circumstance under Brown, so as to attenuate the taint of police

misconduct with regard to evidence of still another, different offense—

possession of a controlled substance—discovered subsequent to the

alleged police misconduct.

In similar circumstances, some courts have seemed to consider

the new offense—committed in response to the original alleged police

misconduct—as independently determinative in favor of attenuation.

Those courts appear to conclude that the new offense brakes the causal

connection, not only between the alleged police misconduct and the new

offense committed in response to it, but also between the misconduct

and the subsequent discovery of evidence of even another, different

offense. 12 But we ultimately conclude that, at least until the United

12 See United States v. Bailey, 691 F.2d at 1017−18 (treating, in a drug

possession case, the appellant’s arrest for unlawfully fleeing detention as an

intervening circumstance that justified a search incident to that arrest, and

finding that the offense purged any taint from the initial illegal detention

itself, without reference to any other Brown factor); United States v. Sprinkle,

106 F.3d 613, 619 (4th Cir. 1997) (rejecting, in an illegal possession of a firearm

case, the appellant’s argument that the initial unlawful stop should result in

suppression of the gun he subsequently drew on the officers because it

“overlook[ed] whether his own illegal acts after the initial stop [would] trigger

an exception to the exclusionary rule of the ‘fruit of the poisonous tree’

doctrine,” and concluding that such an exception would apply, while making

no reference to the particular Brown factors); United States v. Sledge, 460 F.3d

963, 966 (8th Cir. 2006) (deciding that evidence of cocaine possession is not

subject to suppression when the defendant illegally fled from an arguably

illegal detention, without any reference to the Brown factors); Kavanaugh v.

Commonwealth, 427 S.W.3d 178, 181 (Ky. 2014) (deciding that evidence of

cocaine possession following an alleged illegal Terry stop was not subject to

suppression when the appellant assaulted the officer before the cocaine was

discovered, and concluding that the intervening assault attenuated the taint

of the illegal Terry stop without reference to other Brown factors); Wilson v.

United States, 102 A.3d 751, 753−54 (D.C.C.A. 2014) (deciding, in a possession

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States Supreme Court says otherwise, the admissibility of this category

of evidence—of a still different offense—should be considered with

continued reference to all three of the Brown factors. This approach, we

think, is to be preferred, since it considers the temporal proximity of the

discovery of the evidence to the original misconduct, the intervening

circumstance of the new offense, and also the purpose and flagrancy of

the primary misconduct leading to the discovery of the “different

offense” evidence.

D. Addressing The Court of Appeals’ View

In refusing to regard Appellant’s offenses here as an intervening

circumstance at all, the court of appeals observed:

[I]f the crime is petty and relatively predictable as a

product of an unlawful detention or search, the evidence

revealed is better viewed as an extended derivation of the

illegal police action. “Incriminating admissions and

attempts to dispose of incriminating evidence are common

and predictable consequences of illegal arrests and

searches, and thus to admit such evidence would encourage

such Fourth Amendment violations in future cases.

LaFave, Crimes committed in response to illegal arrest or

search as a fruit, 6 Search & Seizure § 11.4(j) (6th ed.).

Massey, 649 S.W.3d at 517−18. But we find it anomalous to, on the one

hand, treat a new offense—however petty or predictable—as a nearly

invariably determinative intervening circumstance in weighing the

admissibility of evidence of the new offense itself, but then, on the other

of cocaine prosecution, that the cocaine was not subject to suppression after

the appellant resisted what he claimed to be an unlawful arrest since his

resistance constituted an intervening offense which, by itself, purged the taint

of any misconduct).

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hand, to refuse to treat the new offense as an intervening circumstance

at all with regard to evidence showing the commission of another,

different offense, unless the new offense is serious or unpredictable.

The way we see it, when evidence pertaining to a different offense

is discovered subsequent to some police misconduct, but after the

commission of a new offense by the accused, the new offense is still an

intervening circumstance—regardless of its seriousness or

predictability. The reasons that would justify an almost invariable rule

for cases involving only evidence of the new offense itself—committed in

response to police misconduct—do not apply, at least not as firmly, when

the evidence discovered relates to a different offense. Therefore, we

conclude that a faithful deference to the United States Supreme Court’s

decision in Brown requires this Court, under these circumstances, to

conduct an attenuation-of-taint analysis, giving full consideration to all

three of the Brown factors, but with particular emphasis placed on the

third factor, which asks how purposeful or flagrant the police

misconduct may have been. See Mazuca, 375 S.W.3d at 306−07 (“Under

this scenario [where there is an intervening circumstance], the

intervening circumstance is a necessary, but never, by itself, wholly

determinative factor in the attenuation calculation, and the

purposefulness and/or flagrancy of the police misconduct . . . becomes of

vital importance.”).

This approach more effectively serves the core exclusionary rule

interest. It will deter police from deliberately engaging in misconduct in

the manifest hope of provoking some illegal response, only to exploit that

response by conducting an otherwise unwarranted search or seizure for

MASSEY – 15

the purpose of uncovering evidence of still different offenses unrelated

to the suspect’s illegal response. And it also fits in well with the analyses

that this Court undertook in Jackson and Mazuca.

In Jackson, police had installed an illegal global positioning

system (GPS) tracking device on the defendant’s car. 464 S.W.3d at 727.

Prior to discovering drugs in the trunk of that car, however, the police

had determined by radar that Jackson was speeding, 13 and they pulled

him over for that (non-full-custodial-arrestable) offense. Id. The Court

held that the independent radar verification of the speeding offense

constituted an intervening circumstance leading up to the discovery of

the evidence and then proceeded (consistently with Mazuca) to inquire

into the purpose and flagrancy of the unlawful GPS device. Id. at

732−33. The Court did not stop to consider the relative seriousness of

the intervening offense.

Also, in Mazuca itself, the Court determined that the discovery of

outstanding arrest warrants for the defendant following an illegal traffic

detention constituted an intervening circumstance. 375 S.W.3d at 308.

The Court made that determination without ever asking how serious the

offenses underlying the outstanding arrest warrants might have been.

Instead, the Court’s primary focus became, in light of the presence of the

intervening circumstance, how purposeful and flagrant the illegal traffic

stop—the primary misconduct—had been. Id. at 308−10.

None of the cases from other jurisdictions—that the court of

appeals cited as persuasive authority—compellingly support its

13 The Court has said that a motorist pulled over for speeding is not

ordinarily susceptible to a full custodial arrest for that offense. Azeez v. State,

248 S.W.3d 182, 189−90 (Tex. Crim. App. 2008).

MASSEY – 16

preferred approach. Massey, 649 S.W.3d at 517−18. Although they

discuss the “seriousness” of the “new offense” as a consideration in the

intervening circumstance factor, none clearly hold that a “new offense”

will only be regarded as an intervening circumstance if it is sufficiently

serious. Almost all of them appear to conduct a full-blown Brown

analysis, referencing all three factors. None clearly support the

proposition that, if the “new offense” is not serious, or is a predictable

response to the primary misconduct, then it becomes unnecessary to

consider and weigh the third Brown factor—the purposefulness and

flagrancy of the police misconduct. 14 And to the extent, if any, that they

might arguably support such a proposition, they are inconsistent with

Mazuca and Jackson.

In short, we agree with the State that the court of appeals erred

to conclude that, because Appellant’s new offenses were both “petty” and

“relatively predictable” as a reaction to Lukowsky’s misconduct, they

simply do not count as intervening circumstances in the Brown

attenuation-of-taint analysis. Massey, 649 S.W.3d at 517−18. The court

of appeals should have acknowledged that any “new offense” may

constitute an intervening circumstance, even when it leads to evidence

of some offense other than, and different from, the “new offense” itself.

And as a result, the court of appeals should have focused its attention

less on the first “temporal proximity” Brown factor and more on the third

“purpose-and-flagrancy” Brown factor. See Jackson, 464 S.W.3d at 732

14See State v. Alexander, 157 Vt. 60, 595 A.2d 282 (1991); United States

v. Brodie, 742 F.3d 1058 (D.C. Cir. 2014); Johnson v. United States, 253 A.3d

1050, 1058 (D.C. 2021); State v. Owens, 992 N.E.2d 939, 942−43 (Ind. Ct. App.

2013); and Thornton v. State, 465 Md. 122, 159−61, 214 A.3d 34, 56−57 (2019).

MASSEY – 17

(quoting Mazuca, 375 S.W.3d at 306−07). It is to that proper analysis

that we now turn.

E. Application of Law to the Facts of this Case

It is certainly true, as the court of appeals concluded, that the

temporal proximity Brown factor in this case “strongly favors

suppression[.]” Massey, 649 S.W.3d at 518. Lukowsky discovered the

contraband on the ground, where Appellant had apparently dropped it

within about two and a half minutes (according to the body-cam video)

from when the frisk began. When there is an intervening circumstance,

the purposefulness and flagrancy of the police misconduct becomes

vitally important. Jackson, 464 S.W.3d at 732. Here, Appellant’s

resistance to the Terry search was a new offense that constituted an

intervening circumstance, shifting the proper emphasis onto the third

Brown factor—the purposefulness and flagrancy of the misconduct. Id.

When Appellant pulled away from Lukowsky and grabbed his left

arm to avoid the Terry search, he at least committed a resisting search

offense under Section 38.03(a) of the Texas Penal Code. TEX. PENAL

CODE § 38.03(a). There is no question that he intentionally used force to

prevent Lukowsky, whom he knew to be a peace officer, from effecting a

search of his person. See Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim.

App. 2016) (“Finley used force against the officers by pulling against the

officers’ force.”). Also, the fact that the Terry search was deemed to be

unlawful is not a defense for purposes of this statutory offense. See TEX.

PENAL CODE § 38.03(b) (“It is no defense to prosecution under this

section that the arrest or search was unlawful.”). We conclude that this

“new offense” constituted an intervening circumstance, and we focus our

MASSEY – 18

inquiry primarily on the purposefulness and flagrancy of Lukowsky’s

misconduct in perpetrating the Terry search to begin with.

There is no suggestion in the record that the Terry search was

pretextual—a deliberate ploy on Lukowsky’s part to subvert Appellant’s

Fourth Amendment rights for the purpose of conducting a random

search for evidence of an offense beyond the original offense for which

he was detained: driving an unregistered vehicle. 15 From his testimony

it appears that Lukowsky was genuinely concerned for his own safety.

He was, after all, operating by himself, in a high crime area, and

Appellant seemed to him to be more nervous than the circumstances

warranted. That his subjective concern was not (we have assumed, for

purposes of discretionary review) ultimately found to be borne out by

sufficiently objective facts to justify even a limited Terry search for

Fourth Amendment purposes does not make it any less sincere.

Appellant’s “new offense” of resisting the search was an

intervening circumstance. Because we also find no evidence that

Lukowsky purposefully or flagrantly flouted Appellant’s Fourth

Amendment rights, we conclude that any taint from the illegal Terry

pat-down search was attenuated. The trial court properly denied

Appellant’s motion to suppress the methamphetamine.

III. CONCLUSION

Accordingly, we reverse the judgment of the court of appeals and

15 See TEX. TRANSP. CODE § 502.473(a) (“A person commits an offense if

the person operates on a public highway during a registration period a motor

vehicle that does not properly display the registration insignia issued by the

department that establishes that the license plates have been validated for the

period.”).

MASSEY – 19

affirm the trial court’s judgment.

DELIVERED: April 26, 2023

PUBLISH