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831 S.W.2d 887

Giossi v. State

Court of Appeals of Texas

Decided July 1, 1992

Court of Appeals of Texas · decided 1992-07-01

Cited by 5 later decisions — most recently November 1997

5 state decisions

Relies on Murray v. United States · Garcia v. State · Oliver v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1992-07-01

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¶1*891ON MOTION FOE EEHEARING

¶2In its motion for rehearing, the State argues that the evidence should not be suppressed because there was an independent source of probable cause to arrest appellant and search his truck. The independent source doctrine is an exception to the court-created federal exclusionary rule. See Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); 4 Wayne R. LaFave, Search and Seizure § 11.4(a) (2d ed. 1987). Appellant invokes, however, the statutory exclusionary rule found in art. 38.23. It has been held that there is no independent source or inevitable discovery exception to art. 38.23. Garcia v. State, 829 S.W.2d 796 (Tex.Crim.App.1992); Oliver v. State, 711 S.W.2d 442 (Tex.App.1986, pet. ref’d).

¶3We also find that there is no eviden-tiary basis for applying the doctrine in this cause. The State relies on the following testimony by Officer Limón:

Q. And once you observed that knife did you convey that information to Officer Adams?
A. I conveyed it to Officer Pollard who was on the passenger’s side of the vehicle.
Q. Did he see the knife at the same time you did?
A. Yes, sir, he did.

¶4This is the only reference to an Officer Pollard in the statement of facts. The record does not disclose when this fourth officer arrived at the scene or how he came to be standing by appellant’s truck. This testimony does not support the State’s assertion that Pollard “took no part in the illegal detention of the appellant.” There is no basis in the record for concluding that this officer’s observations were independent of the unlawful detention of appellant.

¶5The State’s motion for rehearing is overruled.

¶6POWERS, J., not participating.

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