It is both intriguing and sad that three of the judges disagree with the decision, but give no clue to the basis for their disagreement- especially since Justice Holman did a 180. A strong dissenting opinion would help to assure review in Austin (or maybe Washington). Clearly the new opinion is better reasoned and written than the 8-31-04 one. Maybe that fact indicates one should not ask for a rehearing en banc.

It still seems to me the fact that the police discovered an outstanding warrant for Jeffrey justified their search of him and broke the causal chain, at least as to the possession offense. I do not think the deputies were detaining the vehicle for no other reason than the hope of finding a valid warrant for his arrest. Clearly their conduct did not approach what occurred in Brown v. Illinois. Bigham seems more on point. But, at least we can again be assured that asking questions of passengers is acceptable, even without any suspicion.

Having helped proof Warrantless Arrests, I can attest that it does a great job of covering the waterfront on search and seizure law. It makes a great companion to Warrant Arrests. Too bad the Fort Worth Court of Appeals hasn't read it.

Maybe TDCAA should start a new program where members who read opinions that seem to call out for education could recommend sending a free copy of a applicable TDCAA book to all judges who signed onto the opinion? A certain number of votes generates a free book being sent to the judges. As an extra "service", we could include highlighting and tabbing the most applicable parts of the book.

Stuart Neal is the man!!!

While I have to say the court does not address the attenuation of the taint, it does make clear that once the basis for a traffic stop ends, the investigation is over as far as a random passenger is concerned. St. George

[This message was edited by Martin Peterson on 11-01-07 at .]

So, what about attenuation of the taint? How can the discovery of a warrant NOT clear it all up? Will anyone be asking the SCOTUS for an opinion?

Well, you just conveniently overlook the argument, then you get the result you want. Is that not clear?

[This message was edited by Martin Peterson on 11-01-07 at .]

What bet?

You must have me confused with some other poster.

quote:

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Originally posted by JB:
So, what about attenuation of the taint? How can the discovery of a warrant NOT clear it all up? Will anyone be asking the SCOTUS for an opinion?

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Doesn't the contrary conclusion suggest that a person with an outstanding warrant has a right not to be arrested so long as he is doing nothing suspicious and the officer does not know who he is? Why would we want this to be true?

A more rational conclusion, to me, would be that a person with an outstanding warrant has no reasonable expectation of privacy when out in public. He certainly has no right not to be detained, since the warrant precludes such a right.

If you have a valid outstanding warrant, which orders any officer in the State to arrest you on sight, how can you claim to have any right to leave the presence of an officer simply because you are willing to lie to him about your identity? Is this a right that society is prepared to recognize as reasonable?

P.S. - The Court seems to buy the argument that the defendant could not be detained for suspicion of FID because he did not fall under the provision requiring a witness to a crime to ID himself under 38.02(b)(3). But a person can be a witness to an offense without knowing an offense is being committed. The defendant could testify that the headlamps were on at the time of the stop. The inoperative LP lamp offense requires proof that the lamp did not emit light when the headlamps were lighted. Are you not a witness to a crime unless you can testify to all the elements?

Imagine this scenario: police are searching for a man they believe to have committed a murder moments before. Bob, who did not see the murder, gets a good look at a man running by with blood all over him. As the murderer turns the corner, the police stop Bob to ask if he saw anything. Bob says yes, a man with blood all over him ran that way, gives a description, but refuses to provide his name or address. Is Bob within his rights because all he saw was a bloody man running, which is not a criminal offense in and of itself?

The passenger in a car in which a traffic offense has been committed is a witness to that crime, and can therefore be required to ID himself. Officers who have reason to suspect he has given a false name--such as being unable to find a DL he claims to have--should be permitted to detain him until they can determine whether he has committed FID.

[This message was edited by WHM on 11-01-07 at .]

I filed the brief and argued the case at the CCAP last May. 10/31/07 the Court upheld the 2nd Court of Appeals' decision in St. George.

Unbelievable. Here's the opinion. http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=16101

I hear defense attorneys statewide are standing and cheering this one.

Lori Kaspar, Hood County

Did you argue the issue of attenuation based on the discovery of a warrant, leading to a righteous search incident to arrest?

Reading the opinion, the CCA certainly notes that the State brought up the warrant attenuation argument. But the majority opinion provides not one word of explanation as to how that line of cases does not apply to St. George.

The CCA frequently grants a PDR and admonishes the courts of appeals for not responding to all the state or defendant's arguments. Why aren't they following their own rules in St. George?

I sure hope the State makes the argument in a motion for rehearing. It could include a long string cite to Texas and other state and federal cases recognizing the warrant attenuation argument.

Judge Cochran in particular, one would think, would be sensitive to how the suppression rule is applied to a case that involved a warrant arrest and search incident to that arrest. She well knows that the exclusionary rule has an attenuation doctrine attached to it.

In other words, the evidence was not "obtained" through any illegality. An independent, intervening fact arose (namely, the discovery of an open warrant) that attenuated any taint of a prolonged detention. I'm betting the CCA would not say that the arrest on the warrant was unlawful. That would be nuts. So, how is the search incident to that arrest unlawful?

I not only argued attenuation, I argued that even IF there was an illegal detention, the defendant's name was not "fruit of the poisonous tree" because it was not a tangible object subject to suppression.

Will you be seeking cert. or asking the AG's to do it?

So, if the officer had let the passenger leave, followed the passenger, and then made a new stop based upon the knowledge that the passenger had an outstanding warrant, that would have been less intrusive.

Or any other officer that was listening on the radio could say "I just heard the dispatcher say the passenger in that car had a warrant. I drove by and there was the passenger, in the car driving away. I stopped the car and arrested the passenger." Would that be tainted fruit?