Green v. State

McCORMICK, Judge,

dissenting.

I believe the majority opinion fails adequately to address the reasoning behind the exclusionary rule as presented in Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979), and Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), and the good faith of the officers in the execution of the arrest under the facts before us. Because the facts must be viewed with an eye toward how law enforcement reacted, a brief recital of the facts preceding the arrest is necessary. 1

I.

On the night of January 12, 1975, the Lubbock County Sheriff’s Department discovered two bodies outside the rural community of New Deal. The bodies of an elderly couple were found lying face down and partially covered with snow. The victims, identified as Mr. and Mrs. McKay, had been killed by shotgun blasts in the backs. Deputies Hobb, Rector, and Hill proceeded to the McKay’s house. Upon arrival, they found the house unlocked and unoccupied. An examination of the surrounding area disclosed the presence of automobile tracks that matched neither of the McKay’s vehicles. The tracks appeared to be those commonly associated with a three-quarter ton pickup truck. The vehicle’s tracks indicated that it had pulled up in the driveway, then backed out and left.

The next day, January 13, 1975, the officers also located a similar set of tracks at the nearby Coffee residence. Further, during the subsequent investigation of the murder scene, the officers again located an identical set of tracks matching those previously found. These latter tracks were approximately one hundred yards from where the bodies of the McKays had been found and showed that the vehicle had stopped on the shoulder of the road.

*710 At the Coffee residence, the officers learned that during the evening hours on the date of the murders, Mr. and Mrs. Coffee had been at home. At that time, three black men had come to their house attempting to sell corn for feed. The Coffees identified a Raymond Sanders as one of the men, but they did not know the other two. From a subsequent photographic lineup, Mrs. Coffee identified appellant.

As a result of the information obtained from the Coffees, a search for Raymond Sanders ensued. Upon ascertaining where Sanders was employed, the officers proceeded to a local farm. They found a pickup that belonged to Sanders’ employer and examined the tires on that pickup. The officers also observed that the tracks made by the truck were identical to those found at the Coffee and McKay residences. Additionally, the tracks matched those found on the shoulder of the road near where the bodies were found.

On January 14, 1975, and pursuant to a search warrant, Raymond Sanders’ home was searched. Seized were two shotguns hidden in the attic above the garage. Sanders was immediately arrested and taken to the Lubbock County Sheriff’s office. At the Sheriff’s office, Sanders confessed and made statements implicating appellant and another individual, Robert White. 2 Sanders also gave the officers a description of an automobile that the other two suspects may have been using. An immediate search began for appellant and White.

Involved in the county-wide search for appellant were Texas Ranger Tommy Walker and Deputy P. R. Wilbanks. In their search for appellant, the officers checked residences and a local “joint” that appellant was known to patronize frequently. It was during this period that the officers received word that a formal arrest warrant had been issued for appellant. The officers received the arrest warrant number (8021), the name of the arrestee (appellant), and the charge (murder). 3

The officers, with knowledge of appellant’s possible connection to the offense and with notice of the formal issuance of the arrest warrant, proceeded to a housing complex at 2610 Weber Drive. The officers approached the apartment in which they believed appellant to be. After knocking loudly for several minutes, a woman across the hall opened her door. The officers inquired “if this is the residence of Leroy Green”, and she replied that she thought so. The officers repeated their knocking for approximately fifteen to twenty minutes. The officers then forced entry.

Inside, they encountered appellant’s mother and other members of the family. In one of the bedrooms the officers confronted appellant and his brother. The officers asked if one of them was Leroy Green. Appellant jumped up, kneeling on his bed, and identified himself.

Appellant was immediately taken into custody, warned of his rights, and placed in the deputy’s car. Appellant was originally apprehended in only a T-shirt and shorts. After appellant was placed in the car, the officers allowed appellant to request and receive clothing. 4

*711 Although it took from thirty minutes to an hour to deliver appellant to the sheriff’s office, the delay was due to the ongoing search for a third suspect. Finishing the quote the majority started, Ranger Walker stated:

“... I know that we questioned Leroy as to the whereabouts of White and we— he gave us some information, several addresses and we put them out on the air, maybe one address at a time. I remember stopping at one place while some deputies checked the address to see if White was there, but in general we didn’t roam around town, we come generally straight on down to the jail.” (Emphasis added)

Once the defendant arrived at the police station, he gave the statement which the majority recognizes to have been voluntary.

II.

Regardless of the probable cause to arrest appellant without a warrant, the majority holds that the invalid arrest warrant vitiates the subsequent confession. However, I feel the application of the exclusionary rule to the confession obtained under the circumstances in this case inappropriate. This is so because the exclusionary rule is designed “to deter future unlawful police conduct” and not to repair “the personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 347-348 , 94 S.Ct. 613, 620 , 38 L.Ed.2d 561, 571 (1974). This deterrent function “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. * * * Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” Michigan v. Tucker, 417 U.S. 433, 447 , 94 S.Ct. 2357, 2365 , 41 L.Ed.2d 182 (1974). Accord, Michigan v. DeFillippo, 443 U.S. 31 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979).

As the majority has stated, the factors to be considered in determining whether the confession has been obtained by exploitation of the illegal arrest are (1) whether the rights guaranteed under Miranda were given, (2) the temporal proximity of the arrest and the confession, (3) the presence of intervening circumstances; and, (4) the purpose and flagrancy of the official misconduct. Since it is established that deterrence to police misconduct is the touchstone of the exclusionary rule, the fourth factor, the purpose and flagrancy of the police misconduct, must necessarily be the prime consideration. Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). Moreover, the warning of rights under Miranda is also of great importance. 5 It is these two prominent factors that must be closely scrutinized.

I have no disagreement that there was a close proximity of the confession to the arrest. Nor do I dispute the fact that there were no intervening circumstances between the time of the arrest and the subsequent valid confession. The problem arises in the “purpose and flagrancy of the official misconduct” and the “giving of the Miranda warnings.”

The majority correctly points out that appellant was warned of his constitutional rights and that his confession was voluntary. Thus, the “Miranda ” factor has been satisfied. Having overcome the threshold requirement that the confession is voluntary, however, the majority then concludes *712 that the warrant affidavit was insufficient, resulting in an illegal arrest.

From the facts in this record, I find that the officers had probable cause to arrest appellant. He had been identified to have associated with another suspect already in custody and closely linked with the brutal murders. The two arresting officers, while attempting to locate appellant, received word that an arrest warrant had been formally issued. Acting upon good faith belief that the warrant was valid, the officers proceeded to appellant’s residence. Upon arrival, the officers repeatedly knocked and identified themselves. After approximately fifteen to twenty minutes, the officers forcibly entered the apartment. Although the entry was forced, such an entry based upon an arrest warrant does not infringe upon constitutional rights. Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980).

The events subsequent to the arrest, although not commendable acts on the part of law enforcement, do not constitute a part of the “purpose and flagrancy” of the misconduct, i. e., the illegal arrest. The obvious reason is that the arrest is illegal only because the supporting affidavit was insufficient. The events that occurred after the “illegal arrest” go to the voluntariness of the confession, an issue already decided adversely to appellant.

Therefore, I believe the facts of this case are clearly distinguishable from the Duna-way and Brown scenarios. Our case was based upon an arrest warrant, supposedly supported by probable cause. Officers, acting in good faith, validly executed that warrant. In Dunaway and Brown , both arrests were made without warrants and without probable cause which was acknowledged by the prosecution. Such is not the situation we have here.

I would hold that the good faith of the officers and the Miranda warnings is sufficient to purge the taint of the illegal arrest. Compare, United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976) (evidence seized in good faith not suppressed in civil tax case which was seized based on an insufficient supporting affidavit to the search warrant); People v. Lent, 433 N.Y.S.2d 538 (Misc.2d Sup.1980) (tele-typed arrest warrant subsequently held invalid; however, the good faith action of police officers prevented suppression of evidence from the search incident to that arrest); People v. Pierce, 88 Ill.App.3d 1095 , 44 Ill.Dec. 326 , 411 N.E.2d 295 (Ill.App.1980) (search warrant subsequently held invalid; however, evidence seized and confession of suspect admissible due to officers’ reasonable, good faith belief that warrant was valid).

Furthermore, such a conclusion would fully comport with the recent rule adopted by the Fifth Circuit Court of Appeals in United States v. Williams, 622 F.2d 830 (5th Cir. 1980). That Court, sitting en banc, made an exhaustive analysis of the exclusionary rule. They went on to rule that henceforth in that circuit, evidence obtained by police conduct that is alleged to be unlawful shall not be suppressed if the government establishes that the conduct, if mistaken or unauthorized, was taken in the reasonable good faith belief that it was •proper. 6

The court emphasized that the exclusionary rule is not itself a constitutional requirement, but is a “judge-made rule crafted to enforce constitutional requirements, justified in the illegal search context only by its deterrence of future police misconduct.” 622 F.2d at 841-842 . Recognizing that the judicially created exclusionary rule is ineffective where the officers’ conduct is neither willful nor negligent, the Fifth Circuit adopted part of Justice White’s dissent in Stone v. Powell, supra:

“When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. The officers, if they do their *713 duty, will act in similar fashion in similar circumstances in the future; and the only consequence of the rule as presently administered is that unimpeachable and probative evidence is kept from the trier of fact and the truth-finding function of proceedings is substantially impaired or a trial totally aborted.”

The United States Supreme Court has rejected the rule that Miranda warnings will, per se, cure the taint of a confession which followed an illegal arrest. Likewise, the Court has rejected the other extreme; i. e., that a confession following an illegal arrest must be suppressed. Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). The application of the exclusionary rule to the voluntary confession of appellant in this case does nothing to accomplish its stated purpose. The State sufficiently proved that the officers acted on a reasonable, good-faith belief that the arrest warrant was valid. If the circumstances were repeated, there’s no doubt that the officers would pursue the same course of conduct.

Until the United States Supreme Court is presented with the opportunity to reject or accept the reasonable good-faith exception to the exclusionary rule, I respectfully dissent.

W. C. DAVIS, J., joins this dissent.

. This is a companion case to White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979).

. The defendant confirmed Sanders’ confession at the pre-trial hearing on the motion to suppress:

“A. Raymond Sanders was sitting right in front of this desk, in the room that’s designated A, sitting in a chair on this corner facing me, and he said, ‘Say, Leroy, man, I don’t know what to tell you, man’, he said, ‘I done told them everything that happened’, just like that. He said, ‘Man, I didn’t have no other choice.’ ”

Also see footnote 7 of majority opinion.

. The arrest warrant was issued after the complaint sworn to by Sheriff Blanchard was presented to Justice of the Peace F. H. Bolen. Although the confession of Sanders would adequately support the probable cause element of the arrest warrant, the affidavit failed to show sufficient facts to support the warrant. Therefore, the officers had probable cause to arrest but a defective arrest warrant.

. The majority accepts appellant’s version that the officers circled the block before getting the clothing. The officers’ testimony, however, stated that they allowed appellant to acquire clothing before they left the housing complex.

. In Brown v. Illinois, supra, 422 U.S. at 603 , 95 S.Ct. at 2261 , the Supreme Court stated:

“It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.”

Further, although the Court dismissed a per se rule that Miranda warnings break the causal connection between the illegality and the confession, the Supreme Court soundly rejected the notion that Miranda warnings can never purge the taint:

“While we therefore reject the per se rule which the Illinois Courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’ rule.” Supra 422 U.S. at 603 , 95 S.Ct. at 2261 .

. The Fifth Circuit felt that at least “four current members of the United States Supreme Court have urged the adoption of a good-faith exception to the exclusionary rule.” United States v. Williams, supra, at 841 (quoting Ball, Good Faith and the Fourth Amendment: The “Reasonable” Exception to the Exclusionary Rule, 69 J.Crim.L. and Criminology 635 (1978).