Beasley v. State

¶1concurring.

¶2By urging upon the Court the content excerpted from Lacefield v. State, 412 S.W.2d 906, 908 (Tex.Cr.App.1967), the dissenting opinion would take us back to golden days of yesteryears when an illegal arrest was perceived as a minor indiscretion unless the confessing prisoner later convinced a court that there was a “causal connection” between arrest and confession. See, e.g., Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293 (1951).*

¶3To gain some understanding of the rationale of the rule rotely iterated in Lacefield v. State, supra, when we trace the rule back to a case that does not cite any authority for the proposition, we come to Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419 (1954). In his terse style the late Judge W.A. Morrison wrote:

“It is the detention and not the arrest which this Court and the Supreme Court of the United States hold under some circumstances vitiates a confession. The confession introduced in evidence in this case was made shortly after appellant’s arrest, and there is no claim that it was made as the result of police brutality or long and uninterrupted questioning.”

¶4Id.,267 S.W.2d at 422.

¶5Though he did not mention it, Judge Morrison probably had in mind an opinion he had recently written on motion for rehearing in Goleman v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119 (1952), cert, denied 344 U.S. 847, 73 S.Ct. 60, 97 L.Ed. 659, rehearing denied, 344 U.S. 882, 73 S.Ct. 174, 97 L.Ed. 683. There he expounds on conventional wisdom then prevailing in this State: there must be a causal connection between failure to secure a warrant and obtaining a confession. Id., 247 S.W.2d at 125. The point is made that a question of causal connection “is easily and practically answered in cases where force is used by officers in securing a confession,” for the *358conclusion is that “the confession would not have been forthcoming had it not been for the coercion.” On the other hand, “here, it would certainly be hypercritical to say that the mere failure to have a warrant in their hands was the cause of the confession being made.” Ibid.

¶6Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 414 (1975), changed the equation: “In order for the causal chain, between the illegal arrest and the statements made subsequently thereto, to be broken, Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ] requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ [citation omitted]. Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.” Id., at 602, 95 S.Ct. at 2261.

¶7The dissent protests “application of a federal doctrine, the test set out in Brown v. Illinois ..., to a situation in which only a State violation has occurred.” P. 358.

¶8Both the Fifth Amendment and Article I, § 10 of the Texas Bill of Rights rule out selfincrimination. Similar in this respect to the Fourth Amendment, Article I, § 9 of the Constitution of Texas guarantees that “[t]he people shall be secure in their per-sons_ from all unreasonable seizures.” That constitutional protection is implemented by statutes.

¶9In Texas “our courts, both civil and criminal, have consistently said that the arrest of a citizen without warrant is an unreasonable seizure of his person, unless it is expressly authorized by statute.” Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214. (1943). “The right to arrest without warrant is conferred and controlled in this state only by statute, which must be construed in subordination to the constitutional guarantees against unreasonable seizures.” Giacona v. State, 164 Tex.Cr.R. 325, 298 S.W.2d 587, 589 (1957). “The states are free to impose greater or additional restraints on police conduct than are required by the federal constitution,” and “[unquestionably [Article 14.04, V.A.C. C.P.] imposes greater restrictions on peace officers than does the federal constitution as interpreted by the United States Supreme Court.” Milton v. State, 549 S.W.2d 190 (Tex.Cr.App.1977).

¶10Given those greater restrictions on conduct of peace officers under the law of this State, this Court and other appellate courts are not precluded by the Fourth Amendment from determining under Article I, § 9 whether a confession has been obtained by exploitation of an illegal arrest according to minimal factors identified in Brown v. Illinois, and from imposing upon the State a similar burden of establishing that a confession was not the product of illegal arrest and detention. We followed Brown v. Illinois to that end in Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1981), against competing arguments in a dissenting opinion.

¶11With those considerations I join the opinion of the Court.