Beasley v. State

McCORMICK, Judge,

dissenting.

The majority finds that probable cause existed to arrest appellant; the majority also finds that the warrantless arrest of appellant was improper because, although the State satisfied their Fourth Amendment burden, the additional State statutory burden of Article 14.04, V.A.C.C.P., — “that the offender is about to escape” — was not satisfied. I understand and support this reasoning. However, I must dissent to the application of a federal doctrine, the test set out in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), to a situation in which only a State violation has occurred.

Certainly nothing in Brown dictates its application when there is no federal constitutional violation. Justice Blackmum begins his opinion in Brown by noting that “[t]his case lies at the crossroads of the Fourth and Fifth Amendment.” Indeed, the problem in Brown was that Brown’s arrest was made without probable cause, a clear violation of the Fourth Amendment. This Court steadfastly applied Brown to cases involving Fourth Amendment viola *359 tions until recently. 1 However, in Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986, rehearing denied July 9,1986), the majority of this Court, recognizing that they were not “bound” to do so, determined that the test set out in Brown would be applicable to violations of Articles 14.01 through 14.-04, V.A.C.C.P.

Prior to Bell , the Court’s view of the Texas exclusionary rule, Article 38.23 V.A. C.C.P., as it applied to confessions taken on the heels of an illegal arrest was properly summed up in Lacefield v. State, 412 S.W.2d 906 at 908 (Tex.Cr.App.1967):

“There is no need to prolong the discussion of the question of the legality of the arrest for this court has repeatedly held, under the 1925 Code of Criminal Procedure, which is the statutory law applicable to the case at bar, that it is the illegal detention and not an illegal arrest which under certain circumstances will vitiate a confession. Hughes v. State, Tex.Cr. App., 409 S.W.2d 416 [ (1966) ]; Dugger v. State, 402 S.W.2d 178 [ (1966) ]; Ward v. State, Tex.Cr.App., 399 S.W.2d 567 [(1966)]; Garza v. State, Tex.Cr.App., 397 S.W.2d 847 [(1965)]; Benitez v. State, Tex.Cr.App., 377 S.W.2d 651 [ (1964) ]; Smith v. State, 171 Tex.Cr.R. 313 , 350 S.W.2d 344 [(1961)]; Head v. State, 160 Tex.Cr.R. 42 , 267 S.W.2d 419 [ (1954) ]. Therefore, a confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that its author was under arrest or in custody at the time, even though the arrest may have been under invalid process or without any process or legal right.

“Nevertheless, appellant contends that in view of the decision in Collins v. Beto (5th Cir. [(1965)]), 348 F.2d 823 , citing Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 [(1963)], the rule above stated no longer applies and a confession obtained as a result of an illegal arrest and introduced in a state criminal proceedings is in violation of the Fourth Amendment, U.S. Constitution and the exclusionary rule applicable to the states by virtue of the Fourteenth Amendment, U.S. Constitution. See Mapp v. State of Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 [(1961)].

“Appellant’s contention is without merit.”

Prior to Bell when there was an improper arrest under State standards, a confession taken after the illegal arrest was improper only if it was involuntary. Since Bell , the majority of this Court has applied Brown to situations involving only State violations in Self v. State, 709 S.W.2d 662 (Tex.Cr.App.1986) and in the instant case. Bell and its progeny are clearly wrong. Article 38.23, supra, speaks solely to the inadmissibility of evidence which is illegally obtained. In a situation where a confession is clearly voluntary, despite the illegality of the arrest, the simple truth is that the confession has not been illegally obtained. Thus, the test enunciated in Brown cannot be harmonized with Article 38.23, supra.

Furthermore, I find no rationale for the application of Brown in these situations unless this Court also wishes to adopt the federal “good faith” exception announced in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), which logically should be just as applicable to Article 38.23, V.A.C.C.P., as Brown is.

For all of the above reasons, I dissent.

WHITE, J., joins in this opinion.

. In his concurring opinion, Judge Clinton suggests that we applied the Brown test to a situation involving only a violation of Article I, Section 9, in Green v. State, 615 S.W.2d 700 (Tex.Cr. App.1981). However, a reading of Green shows that that case involved a Fourth Amendment violation in that the affidavit for the arrest warrant was totally conclusory and contained no basis for an independent determination of probable cause.