Arcila v. State

CLINTON, Judge,

concurring.

I join the opinion of the majority in this cause, and write separately only to highlight and supplement a point made in Part I therein, viz: that a claim that a warrant-less search based upon purported consent is illegal because the consent was not rendered voluntarily is conceptually distinct from a claim that evidence obtained in a search is inadmissible because the tainted product of an illegal arrest. Brick v. State, 738 S.W.2d 676 (Tex.Cr.App.1987). To be sure, where purported consent to search follows on the heels of an arrest, either or both claims may be raised in a pretrial suppression context. But a claim that the consent to search was the product of an illegal arrest must be raised distinctly from a claim that the consent was involuntary, or else rules of procedural default will come into play. Moreover, the former claim must be distinctly raised on appeal to insure appellate review. And that which the appellate court does not decide, whether because it was not raised in the court of appeals, or because it was raised there but that court found it was not preserved at the trial level, this Court does not review. 1

In the court of appeals appellant raised only the issue of the voluntariness of his consent. He did not independently claim that his purported consent, and the evidence obtained from the search based upon it, were the product of an illegal arrest. The court of appeals expressly decided “that the evidence supports the conclusion *362 that appellant’s consent was freely and voluntarily given, thereby rendering admissible the evidence seized pursuant to that consent.” Arcila v. State, 788 S.W.2d 587, at 593-94 (Tex.App.—Dallas 1990). In other words, the search, though warrantless, was nevertheless validated by the consent. This holding does not encompass a decision that the consent and search were the fruit of an illegal arrest, which has been deemed an “independent ground” for suppression. United States v. Watson, 423 U.S. 411, at 414 , 96 S.Ct. 820, at 823 , 46 L.Ed.2d 598, at 603 (1976).

It is true that in its analysis the court of appeals relied in part upon this Court’s opinion in Miller v. State, 736 S.W.2d 643 (Tex.Cr.App.1987), and therein lies the source of some confusion. In Miller the issue was in fact whether evidence should have been suppressed as the product of a search following an illegal arrest. Miller had been arrested on the basis of a warrant supported by an affidavit lacking enough information for a neutral magistrate to find probable cause. After his arrest, in the course of a strip search, Miller pulled out a concealed pistol and, in effect, held his captors captive. Persuaded to surrender the pistol, Miller expressed a concern that his parents would find marihuana in his house, and offered to retrieve it. The police readily acceded, and in the course of events Miller also led them to proceeds from the robberies for which he had been arrested. We held that on these facts — it being “difficult to conceive of a situation that is more consensual” — the taint of the illegal arrest was sufficiently attenuated. Id., at 651 .

Miller only serves to underscore the majority’s observation in this cause that where purported consent follows an illegal arrest, considerations relevant to a volun-tariness analysis “are almost invariably relevant” to an attenuation of taint analysis, and vice-versa. Maj. op. at 358. Indeed, we have suggested that a complaint that a search was the product of an illegal arrest logically envelops the question whether any consent to the search was voluntary. Brick v. State, supra, at 679 n. 5. But the converse is not true. A complaint that a warrantless search was not validated by consent because the consent was involuntary, without more, does not embrace a claim that the consent and search were tainted by an illegal arrest. 2

The court of appeals here concluded “that any coercion flowing from the illegality of appellant’s arrest was dissipated.” 788 S.W.2d at 593 . Degree of real or objectively apparent coercion is an aspect of a voluntariness-of-consent analysis. Thus it is clear that the court of appeals considered the illegality of the arrest, but only to the extent it may have had a bearing on the voluntariness of appellant’s consent. 3 The court of appeals did not purport to decide whether the consent was the fruit of an illegal arrest. It was not asked to, nor did it in fact conduct an analysis under the test spelled out in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975). In the premises, neither should this Court.

. In Brick the court of appeals persisted in treating the defendant’s claim as one of voluntariness of the consent, and resolved it in those terms, even though at trial and on appeal the defendant conceded voluntariness of the consent but insisted that consent was not the issue he was contesting. 738 S.W.2d at 677-78 . We held that, the question of exploitation of the illegal arrest having been expressly raised at trial and brought up on appeal, the court of appeals was obliged to address it, and remanded the cause accordingly. We did not hold, as Judge Baird’s dissent suggests, that a claim of involuntary consent will automatically suffice to raise an issue of taint from an illegal arrest. See also Juarez v. State, 758 S.W.2d 772 (Tex.Cr. App.1988) (in reviewing claim that consent was itself an exploitation of an illegal arrest, this Court applied test enumerated in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975)).

. In cases decided since Brick , where the appellate claim has been that consent to search was tainted by a prior illegal arrest, this Court has examined the included question of voluntariness of the consent as a factor in determining attenuation of taint. See Reyes v. State, 741 S.W.2d 414 (Tex.Cr.App.1987); Juarez v. State, 758 S.W.2d 772 (Tex.Cr.App.1988). We have yet to hold that where the appellate claim is only that consent to search was involuntary, we must nevertheless reach the broader question whether the consent was tainted by a prior illegality.

. In reality, it is not so much the legality, vet non, of an arrest that contributes to the volun-tariness analysis. The fact of arrest, whether it is legal or not, is not alone dispositive of a voluntariness-of-consent claim. Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985). Much depends upon the character of coerciveness that accompanies the arrest, and this is not a function of its legality, per se. See Brick v. State, supra, at 679, n. 5. A perfectly valid arrest may be executed with such a show of force as to render refusal of consent unthinkable. Such consent would not be voluntary. On the other hand consent to search without warrant or probable cause will not be rendered involuntary simply because it was preceded by an illegal arrest. Nevertheless it is clear that the court of appeals considered the legality of appellant's arrest here as a facet of its analysis whether appellant’s consent was voluntary, and to no other end.