Page 41 - TPA Journal July August 2023

egory of evidence—of a still different offense— “relatively predictable” as a reaction to
should be considered with continued reference to Lukowsky’s misconduct, they simply do not count
all three of the Brown factors. This approach, we as intervening circumstances in the Brown attenu-
think, is to be preferred, since it considers the tem- ation-of-taint analysis. The court of appeals
poral proximity of the discovery of the evidence to should have acknowledged that any “new offense”
the original misconduct, the intervening circum- may constitute an intervening circumstance, even
stance of the new offense, and also the purpose when it leads to evidence of some offense other
and flagrancy of the primary misconduct leading than, and different from, the “new offense” itself.
to the discovery of the “different offense” evi- And as a result, the court of appeals should have
dence.… focused its attention less on the first “temporal
proximity” Brown factor and more on the third
The way we see it, when evidence pertaining to a “purpose-and-flagrancy” Brown factor. …
different offense is discovered subsequent to some
police misconduct, but after the commission of a Appellant’s “new offense” of resisting the search
new offense by the accused, the new offense is was an intervening circumstance. Because we also
still an intervening circumstance—regardless of find no evidence that Lukowsky purposefully or
its seriousness or predictability. The reasons that flagrantly flouted Appellant’s Fourth Amendment
would justify an almost invariable rule for cases rights, we conclude that any taint from the illegal
involving only evidence of the new offense Terry pat-down search was attenuated. The trial
itself—committed in response to police miscon- court properly denied Appellant’s motion to sup-
duct—do not apply, at least not as firmly, when the press the methamphetamine.
evidence discovered relates to a different offense.
Therefore, we conclude that a faithful deference to Accordingly, we reverse the judgment of the court
the United States Supreme Court’s decision in of appeals and affirm the trial court’s judgment.
Brown requires this Court, under these circum- Massey v. State, Tex. Crim. App., No. PD-0170-
stances, to conduct an attenuation-of-taint analy- 22, Apr. 26, 2023.
sis, giving full consideration to all three of the
SEARCH & SEIZURE – cell phone search – good
Brown factors, but with particular emphasis
faith rule -- warrants.
placed on the third factor, which asks how pur-
poseful or flagrant the police misconduct may State troopers arrested Brian Morton after finding
have been.
drugs in his car during a traffic stop. Morton also
This approach more effectively serves the core had three cellphones in the car. A state judge later
exclusionary rule interest. It will deter police from signed warrants authorizing searches of the
deliberately engaging in misconduct in the mani- phones for evidence of drug crime. The warrants
fest hope of provoking some illegal response, only allowed law enforcement to look at photos on the
to exploit that response by conducting an other- phones. When doing so, troopers discovered pho-
wise unwarranted search or seizure for the pur- tos that appeared to be child pornography. This
pose of uncovering evidence of still different discovery led to a second set of search warrants.
offenses unrelated to the suspect’s illegal The ensuing forensic examination of the phones
response. And it also fits in well with the analyses revealed almost 20,000 images of child pornogra-
that this Court undertook in Jackson and Mazuca. phy. This federal prosecution for receipt of child
pornography followed. Even though search war-
… rants authorized everything law enforcement did
when searching the cell phones, Morton argues the
In short, we agree with the State that the court of evidence discovered during those searches should
appeals erred to conclude that, because be suppressed. We disagree because law enforce-
Appellant’s new offenses were both “petty” and

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