Autry v. State

CLINTON, Judge,

concurring.

I concur in the judgment of the Court, but am not satisfied with its treatment of the third ground of error. It seems to me that the Court has been led into a maze of disjointed principles of Fourth and Fifth Amendment law. There is a straighter way out.

The core of appellant’s contention is that statements made by him in his telephone conversation with his mother are fruits of his earlier written statement wrongly taken from him by peace officers. But he relies on the “poisoned tree” doctrine of Silverthorne Lumber Company v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920) and its followings, e.g., Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939) and especially Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). The doctrine is founded in the Fourth Amendment, 1 and as the Supreme Court explained in Wong Sun:

*766 “The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505 , that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of ‘papers and effects.’ Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, 227 F.2d 598 [(1st Cir.) ]. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” 2

Though appellant cites Fourth Amendment cases, he makes no claim that his Fourth Amendment rights were violated. Thus, legality of the arrest is not challenged, as in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975) and Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980); nor is the resultant detention assailed as illegal, see Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). Indeed, he does not assert the only colorable Fourth Amendment violation available under the circumstances: invasion of his right to privacy under the rationale of Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Accordingly, there is not presented here any proper claim of “primary illegality” under the Fourth Amendment; so, the Court is not called on to make an analysis of Fourth Amendment law with respect to the claim that appellant does assert.

What appellant contends is that he would not have made the incriminating statements in his conversation with his mother “but for the illegal acts of law enforcement officers” in obtaining his written confession in violation of his constitutional rights. The officer who finally took his confession had not “scrupulously honored” appellant’s request to remain silent, Faulder v. State, 611 S.W.2d 630 (Tex.Cr.App.1979). Thus asserted is a claim under the Fifth Amendment. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

The Court draws from its excerpted portion of Wong Sun, supra, the following proposition: “Therefore, in the case of statements made by an accused, Wong Sun requires that they be sufficiently an act of free will so as to purge the primary taint.” But the very case later cited and quoted by the Court, United States v. Bayer, 331 U.S. 532 , 67 S.Ct. 1394 , 91 L.Ed. 1654 (1947), points out just after the part quoted:

“... The Silverthome and Nardone eases, relied on by the Court of Appeals, did not deal with confessions but with evidence of a quite different category and do not control this question.” Id., at 541, 67 S.Ct. at 1398 . 3

Moreover, the measure of admissibility of a confession or incriminating statement is its voluntariness. Jackson v. Denno, 378 U.S. 368, 376-377 , 84 S.Ct. 1774, 1780-81 , 12 L.Ed.2d 908 (1964); Townsend v. Sain, 372 U.S. 293, 307-309 , 83 S.Ct. 745, 754-55 , 9 L.Ed.2d 770 (1963). So, the proposition stated by the Court should read: “In the case of statements made by an accused the Fifth Amendment requires that they be sufficiently an act of free will.”

In my judgment, the short answer to appellant’s contention is contained in the opinion of the Court, but is obfuscated by a revealed concern to “purge the primary taint” of something that is really not in the case. That answer is that appellant placed the telephone call and made incriminating statements in the conversation with his mother of his own free will.

Whatever “psychological and practical disadvantages of having confessed” earlier lingered on as he talked with his mother, *767 the conditions under which the confession was made no longer obtained. While in the sense alluded to in United States v. Bayer, supra, “a later confession may be looked upon as a fruit of the first,” 4 id., at 540 , 67 S.Ct. at 1398 , though in custody, appellant was not then being interrogated by officers. Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980); cf. Brewer v. Williams, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). “[A] voluntary oral statement is admissible if it is not the ‘result of’ or does not ‘stem from custodial interrogation’,” May v. State, 618 S.W.2d 333, 348 (Tex.Cr.App.1981).

It is on Fifth Amendment law, then, that the third ground of error should be overruled.

ROBERTS and McCORMICK, JJ., join.

. The policy behind the exclusionary rule is that evidence acquired contrary to a provision forbidding acquisition in a certain way is “that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all,” yet facts illegally obtained are not “sacred and inaccessible” for if knowledge of them is “gained from an independent source” the facts are admissible; still, the knowledge of facts “gained by the Government’s own wrong cannot be used by it...,” Silverthorne, supra, 251 U.S. at 392 , 40 S.Ct. at 183 .

. All emphasis is mine unless otherwise indicated.

. Of course, Wong Sun is a progeny of Silver-thome and Nardone but had not yet been decided when Bayer was written.

. Thus, I would not be so quick to say, as the opinion of the Court does, “We find no causal relationship between the admissions and the written statement excluded by the court.”