Page 39 - TPA Journal July August 2023

weapon, intending to handcuff Appellant. the detaining officers or attempting to dispose of
Appellant told Lukowsky “something along the evidence will not necessarily dissipate the taint.”
lines” of “I’m not going to go with you,” and To hold otherwise, the court observed, would sim-
“you’re just going to have to shoot me.” ply encourage the police to engage in impropri-
Eventually Appellant approached and began to eties in the hope that a suspect’s adverse reaction
move around an air pump machine, which he (so long as it was not too extreme) would gener-
grasped in such a way that Lukowsky could not ate incriminating evidence. Having found no
see his left hand. At that point, an off-duty Fort intervening circumstance, the court of appeals
Worth police officer arrived and tried to assist then emphasized the temporal proximity of the
Lukowsky in taking Appellant into custody. discovery of the evidence of the primary miscon-
Lukowsky ordered Appellant to comply several duct over the purposefulness and flagrancy of the
times, and after he then warned Appellant and the police misconduct and concluded that the taint
off-duty officer that he was about to tase was not attenuated.
Appellant, Lukowsky carried through on his warn-
ing and tased Appellant, who then fell to the The federal exclusionary rule requires the sup-
ground. With the continuing help of the off-duty pression of evidence obtained either directly or
Fort Worth officer, Lukowsky handcuffed derivatively (“fruit of the poisonous tree”) from
Appellant. Lukowsky then discovered a bag of police conduct that violates the Fourth
methamphetamine on the ground next to the air Amendment. But whether the discovery of evi-
pump machine. As Lukowsky’s body-cam footage dence was the “fruit” of Fourth Amendment mis-
confirms, the bag had not been there only conduct is not a strictly “but/for” inquiry.
moments before. Lukowsky believed that Suppression of evidence is a “last resort,” not a
Appellant had retrieved it from his left-hand pock- “first impulse.” Accordingly, the United States
et unseen and then dropped it as a result of being Supreme Court has identified exceptions to the
tased. In its written findings of fact and conclu- exclusionary rule, one of which is the attenuation-
sions of law, the trial court found that the initial of-taint doctrine.
detention of Appellant was justified— because of
Under the attenuation-of-taint doctrine,
the absence of a valid registration sticker on “[e]vidence is admissible when the connection
Appellant’s truck. In spite of that, the court found between unconstitutional police conduct and the
that Lukowsky’s initial Terry pat down search of discovery of evidence is remote or has been inter-
Appellant was illegal because he lacked reason-
rupted by some intervening circumstance, so that
able suspicion to justify it. But the trial court also
‘the interest protected by the constitutional guar-
found that Appellant’s conduct in response to antee that has been violated would not be served
Lukowsky’s illegal Terry pat-down search consti- by suppression of the evidence obtained.’” To
tuted the offenses of: (1) resisting search, and (2) determine whether this connection is sufficiently
evading detention. And as a result, the trial court
“remote or has been interrupted,” the United
concluded, the “taint” from the primary miscon-
States Supreme Court has required courts to con-
duct was effectively “purged” by Appellant’s com- sider three factors known as the Brown factors:
mission of the new offenses. The court of appeals (1) the temporal proximity between the miscon-
rejected the trial court’s conclusions. Citing court duct and discovery of the evidence; (2) the pres-
opinions from other jurisdictions, the court of
ence of any intervening circumstances; and (3),
appeals essentially held that “milder cases of
the purpose and flagrancy of the police miscon-
resisting arrest [do] not constitute intervening cir- duct. Also, this Court said, in Mazuca, that either
cumstances” for purposes of an attenuation of the first factor (“temporal proximity”) or the third
taint analysis. The court explained that “[o]ther factor (“purpose and flagrancy”) will take on
courts have held that simply running away from
greater significance in any given case, depending

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