# Comer v. State

> Court of Criminal Appeals of Texas · May 28, 1988 · 754 S.W.2d 656

URL: https://www.frixlaw.com/law-library/cases/9682131

## Case

- **Full name:** Leroy COMER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 28, 1988
- **Citations:** 754 S.W.2d 656; 1986 WL 49
- **Precedential status:** Published
- **Opinion:** On rehearing by Teague
- **Judges:** Davis, Teague, Onion, McCormick, White, Duncan
- **Cited by:** 113 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Woods v. State, 1997 Tex. Crim. App. LEXIS 90 (1997).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682131

## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
TEAGUE, Judge.
On original submission we held that the arresting officer lacked sufficient reasonable suspicion to initiate the investigatory stop which preceded appellant’s arrest. We adhere to what we stated and held on original submission. However, the State now argues that our inquiry must not end with this determination, but that we must also decide whether the appellant voluntarily abandoned the heroin-filled syringe. We agree. If appellant voluntarily abandoned the syringe, then the contraband became admissible evidence against appellant, notwithstanding the illegality of the initial detention. For the reasons articulated below, we hold that appellant did not voluntarily abandon the contraband, but rather relinquished it as a result of police misconduct.
Although it is true that an accused person’s abandonment of property or evidence can remove the taint of an illegal arrest, stop, or detention, it is also true that for this to occur the abandonment must be actually voluntary and not merely the result of police unlawfulness. United States v. Beck, 602 F.2d 726, 729-730 (5th Cir.1979). Moreover, the results of a search or seizure will never attenuate unlawful police conduct nor will it be considered in making the determination whether the police were initially acting lawfully. Taylor v. State, 604 S.W.2d 175 (Tex.Crim.App.1980).
That voluntariness is an integral component to the concept of abandonment has been made clear in several decisions by the Fifth Circuit Court of Appeals. “To be sure, the voluntary abandonment of evidence can remove the taint of an illegal stop or arrest ...; an abandonment is not deemed voluntary [however] ... if it is merely the product of police misconduct [and, therefore, cannot vitiate the taint of an illegal detention.]” United States v. Santia-Manriquez, 603 F.2d 575, 578 (5th Cir.1979). “The only courts that have allowed the seizure of evidence that was thrown ... have emphasized that ‘no improper or unlawful act was committed by any of the officers’ prior to the evidence being tossed ...” Fletcher v. Wainwright, 399 F.2d 62, 64 (5th Cir.1968). See also United States v. Morin, 665 F.2d 765, 770 (5th Cir.1982); United States v. Beck, supra, at 726; United States v. Colbert, 474 F.2d 174 (5th Cir.1973).
Ringel, in his highly respected work entitled Search & Seizures; Arrests and Confessions (1985), expresses the concept of voluntary abandonment this way:
The intent to abandon implies voluntariness. Abandonment cannot be voluntary if it has been coerced by unlawful police action such as approaching a suspect with the intention to arrest without probable cause of the initiation of an illegal investigatory stop or search. Therefore, when the police are illegally threatening to arrest and search a suspect, and the suspect attempts to divest himself of incriminating evidence that he reasonably believes will inevitably be discovered, his efforts do not constitute such an ‘abandonment’ or voluntary exposure as would waive his constitutional right to later move for suppression of the evidence thus obtained ... (Citations omitted.) Id., at Vol. 1, § 8.04(a). 1
Texas case law has not always focused on the voluntariness of the abandonment in light of police misconduct. Instead, some decisions opted to merely conclude that “[w]hen police take possession of aban *659 doned property, there is not seizure under the Fourth Amendment.” Clapp v. State, 639 S.W.2d 949, 953 (Tex.Crim.App.1982), and cases cited therein. See also Rodriguez v. State, 689 S.W.2d 227, 230 (Tex.Crim.App.1985) (Abandoned contraband is not obtained as a result of a search even when the police utilize a pretext to stop the defendant); McClain v. State, 505 S.W.2d 825, 827 (Tex.Crim.App.1974); Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App.1974).
Other cases, however, limit the inquiry to the defendant’s intent to abandon the property. See Sullivan v. State, 564 S.W.2d 698, 702 (Tex.Crim.App.1978) (opinion on rehearing) (“Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts,”) citing and quoting United Stated v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). See also Smith v. State, 530 S.W.2d 827 (Tex.Crim.App.1975); Hudson v. State, 642 S.W.2d 562 (Tex.App.—Fort Worth 1982); French v. State, 636 S.W.2d 749 (Tex.App.—Corpus Christi 1982).
What both lines of cases do not make clear is that abandonment consists of two components: 1) a defendant must intend to abandon property, and 2) a defendant must freely decide to abandon the property; the decision must not merely be the product of police misconduct. See United States v. Beck, supra. To the extent that any of these cases conflict with that notion, they are overruled. We hold that to resolve abandonment issues there must be a determination of whether the accused voluntarily abandoned the property independent of any police misconduct.
We now turn to the facts of the case at bar to determine whether appellant voluntarily abandoned the syringe. Appellant was a passenger in the vehicle which the police were unlawfully pursuing. The arresting officer testified that when appellant exited the vehicle appellant dropped “something” from his hand to the pavement and attempted to kick this object under the vehicle. The object turned out to be the syringe.
To make the determination of voluntary abandonment we must determine if appellant intended to abandon the syringe and, if so, then determine whether or not appellant’s decision to abandon the contraband was merely the product of the illegal acts of the police. It is questionable whether appellant intended to abandon the syringe, or whether he was only attempting to conceal it. Assuming, arguendo, that appellant intended to abandon the syringe, we cannot conclude that this relinquishment was independent of the unlawful police conduct. To the contrary, we find that the decision to abandon the property was a direct result of the police misconduct. Therefore, appellant’s relinquishment of the syringe did not remove the taint of the illegal police conduct.
The right of the people of this State to be free from unreasonable searches and seizures involves the right to be let alone, which is probably the most comprehensive of all our constitutional rights, as well as one of the rights most valued by civilized men and women. Olmstead v. United States, 277 U.S. 438, 478 , 48 S.Ct. 564, 572 , 72 L.Ed. 944 (1928) (Brandéis, J., dissenting). Unless legal justification is shown, such right must not be infringed upon by the police. We find no meaningful constitutional distinction between the situation where, because of police unlawfulness, the police search an individual and find contraband and the situation where, because of police unlawfulness, the individual throws or drops an object to the ground and the police seize it. In both instances the evidence is subject to being suppressed because it was the direct result of initial police misconduct. Unless the State establishes that the taint has been purged, such unlawfully obtained evidence should always be suppressed and should never be used to convict the accused. See United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 (1951); Brock v. United States, 223 F.2d 681, 684-685 (5th Cir.1955). “While a police officer must be vigilant and resourceful in combating crime, he is required to do so within the constitutional framework that seeks the preservation of the dignity of the individual.” Moscolo, “The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis,” 20 Buff.L.Rev. 399 (1971).
The State’s motion for rehearing is overruled.
ONION, P.J., and McCORMICK, WHITE and DUNCAN, JJ., dissent.
. Also see "Seizure of Abandoned Property,” Search and Seizure Law Report, Vol. 1, No. 13, November, 1974; "Abandonment of Property Under the Fourth Amendment,” Id., Vol. 10, No. 1, January, 1983; 1 Am.Jur.2d Abandoned, Lost, Etc., Property § 1; Annot., 40 A.L.R.4th 381 (1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682131. Public record. Not legal advice.