Larson v. State

¶1concurring.

¶2The primary emphasis of appellant Larson’s brief and argument and the disagreement arising between members of the panel is the application of legal principles to the facts recorded in the case. Appellant Larson contends that the trial court erred in admission into evidence of her oral statement and evidence seized when she consented first to a search of her apartment and thereafter to a search of her automobile and the premises of the club she operated.

¶3For reasons set out in the opinion affirming the case, the panel agrees that Larson’s arrest was illegal. The present focus of examination is whether Larson’s post-arrest consent to the searches in question was voluntary and the product of her free will or the product of the exploitation of the illegal arrest.

¶4In this discussion, effort will be made to minimize or completely avoid repetition of facts and authority set out in the other opinions filed herein. The objective here is to marshal additional facts that support a valid conclusion that judgment of the trial court should be affirmed.

¶5The voluntary nature of an accused’s consent may be resolved by evidence bearing upon (1) whether or not the Miranda warning was given; (2) the temporal proximity of the arrest and consent; (3) the presence and nature of any intervening circumstances; and (4) the purpose and flagrancy of alleged official misconduct. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Boyle v. State, 820 S.W.2d 122, 131-32 (Tex.Crim.App.1989);4Juarez v. State, 758 S.W.2d 772, 780 (Tex.Crim.App.1988); Brick v. State, 738 S.W.2d 676, 680-81 (Tex. Crim.App.1987).

¶6The voluntary nature of Larson’s consent to the search is to be determined by the *207totality of the evidence, a question of fact. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim.App.1990). Consent is not to be lightly inferred; voluntary action must be shown by clear and convincing evidence and the absence of either physical or psychological coercion. Juarez v. State, 758 S.W.2d at 774-75, and authorities there cited.

¶7Furthermore, to avoid the taint of illegal arrest the prosecution must establish a break in the causal connection between the illegality of the arrest and the evidence discovered as a result of consent, that is, the prosecution must show consent as a product of the accused’s free will. The temporal proximity factor, that is, the time interval between the arrest and the accused’s consent, standing alone, is often ambiguous. Relevant intervening circumstances and other factors must be examined in connection with it. Proof of temporal proximity alone is looked upon by numerous courts as the most unreliable of the several factors that may be considered in determining the voluntariness issue. See Juarez, 758 S.W.2d at 781-82.

¶8In considering intervening circumstances, the courts examine evidence, if any, that is claimed to attenuate the deleterious consequence of the illegal arrest. The dictionary defines “attenuated” as meaning “to weaken or reduce in force, intensity, effect, quantity or value.” Thus, the time interval is immaterial when clear and convincing evidence is produced of intervening circumstances of a nature sufficient to nullify or neutralize the harmful effect an illegal arrest imposes upon an accused’s exercise of free will. See Arcila v. State, 788 S.W.2d 587, 593 (Tex.App.—Dallas 1990), aff'd, 834 S.W.2d 357 (Tex.Crim.App.1992).

¶9There is evidence in the record that an illegal arrest was made and in five minutes thereafter an arresting officer prepared and Larson signed a consent form allowing a search of her apartment. Later, she also signed a consent for a search of her automobile and the premises of the club she operated, known as Lou’s Place. The asserted five-minute time interval will be analyzed. The arresting officer was accompanied to Larson’s apartment by six law officers with guns drawn. That officer and those supporting him were admitted to the apartment by a person at the door and proceeded to a bedroom where Larson and Tim Rule were in bed asleep. The officer announced to Larson and Rule that they were under arrest. At that point at least ten people, a crowd, were in the apartment.

¶10Both Larson and Tim Rule were nude. Rule was required to dress and was escorted under arrest from the room. The male officers retired from the bedroom and left Larson in the custody of a female deputy sheriff. Larson proceeded to dress. After she was dressed, the arresting officer and another reentered the bedroom and read her the Miranda warning. Following further conversation between the officer and Larson, at 11:40 a.m. she signed a written consent form permitting a search of her apartment. The consent to search Larson’s automobile and club premises was later signed at 12:53 p.m.

¶11From the facts so far noticed, it may be inferred that when the sleeping couple were awakened, conversation necessary to convey the fact that the couple was under arrest occurred. Also, that allowing Rule time to dress himself before removal to the local jail consumed time. Then time was consumed in withdrawing male officers from the bedroom and placing Larson in the custody of the female deputy sheriff. Consumption of time was incident to allowing Larson to dress preparatory to her incarceration, as well as reading her the Miranda warning.

¶12Reasonably and necessarily, more than five minutes’ time was consumed between arrest and consent. Common knowledge supports an inference that the prospect of being jailed when dressing was complete would not encourage a person to hastily dress. Also, after the arrest dispersing the several officers to other duties as well as preparing the written consent to search, examination of the paper, some discussion and signing increased the time consumed between arrest and consent.

¶13The sum of the facts refute a serious contention that consent to search the apartment was given within five minutes after arrest. But in fairness, the record reflects that the passage from arrest to consent was expedí-*208tious. Consideration must be given to the facts, if any, that attenuate or render immaterial any probable hindrance, diminishment, or restriction the illegal arrest imposed upon the accused’s exercise of free will.

¶14Appellant Larson served seven years as a Pittsburg, Texas5 peace officer, the first two as animal control officer and the remainder as a uniformed patrol officer. She attended and graduated from the Kilgore Police Acad-' emy.6 Ms. Larson received a certificate from that institution which allowed her to be employed as a peace officer. At the time of the offenses charged in this proceeding, she was a deputy constable in a Camp County Justice of the Peace Precinct. Her general, though not immediate, supervisor while employed at Pittsburg was Lieutenant Otis Dwayne McClung. In the record, her co-defendant, Tim Rule, is said to be Larson’s boyfriend, and co-defendant Tim Rice is described as Larson’s confidant and a habitué at Lou’s Place. Shortly prior to death, Charles Edward “Eddie” Wardlaw was employed at Lou’s Place as doorman and collected cover charges from patrons. Cedric Baker is named as a friend of Wardlaw and appears to have lost his life by being at the wrong place at the wrong time.

¶15After Larson’s arrest and while free on bail, the record shows that she sought out Lieutenant McClung and insisted upon recounting to him her lack of connection with the homicides for which she had been indicted. As a witness, Lieutenant McClung testified,

What she told me was that the police need to be looking at a different location, a different direction in regards to her murder case and in regards to some other people that were involved with it.

¶16Replying to further interrogation, he said,

She stated to me that Tim Rice had had a fight at her club with a guy by the name of Eddie and that [he] had busted Eddie’s lip and he was bleeding, and she also stated there was a black male there whose name-she didn’t know and that Eddie, after the fight, had requested — not Eddie but Tim Rice had requested to borrow her vehicle, and he left the club with this black male and Eddie after the fight and after they had borrowed her vehicle.

¶17The lieutenant also testified that he understood from Larson’s conversation that these parties were alive and well when they left.

¶18On further questioning, Lieutenant McClung testified,

She said, in the first part of the conversation with me, that the police need to look in a different direction because drugs being hooked up with Tim Rice and Kirk Rule and they were hooked up with Mafia in the Houston area.

¶19The State produced evidence that Larson asked Rice to bring Wardlaw to her office at the club in the early morning hours of Saturday, November 14, 1992, so that arrangements might be made for Wardlaw to pay her money she claimed Wardlaw had stolen from the club. Rice had previously left Wardlaw at a residence in the club area. Tim Rice, Tim Rule, Larson, and a female friend of Rice were socializing at the club prior to Rice’s departure to pick up Wardlaw. The group “used” a drug called “speed.” Rice departed, carrying his female friend home, and picked up Wardlaw and Cedric Baker, who happened to be visiting with Wardlaw, and brought both to the club office. Tim Rule admitted them into the club and seated them in Larson’s office, then left and turned the sound volume up on the jukebox.

¶20After the three waited a short time, Larson came out of an office side room and asked Wardlaw if he had her money. She then asked Rice to whip Wardlaw. Rice kicked Wardlaw in the mouth. Larson then shot Wardlaw three times with her 9mm pistol and left the office for a short time. When she returned, she told Rice to shoot Baker, which he did with the same pistol. Thereupon, Larson cleaned the office, and Rule and Rice loaded Wardlaw’s and Baker’s bodies into trash cans and put them in the trunk of Larson’s Lincoln automobile. Rice and Rule drove the vehicle to a remote area *209of Red River County and dumped the bodies out.

¶21A day or so after Rice and Rule returned from dumping the victims’ bodies, Larson traded the 9mm pistol involved in the homicides to an aunt for a much less valuable weapon, explaining that the 9mm was heavier than she liked. Also, after the bodies were dumped and Rice and Rule returned to the club area, Rice took Rule’s truck to return and bury the bodies, but did not do so. Instead, he arranged through intermediaries to meet with Texas Rangers in Idabel, Oklahoma.

¶22It may be inferred from factual evidence that Larson did not hesitate to make important decisions on the spur of the moment and was not inclined to spend much time deliberating even a life or death decision.

¶23Even more importantly, at the time Larson gave consent to the search of her apartment, she did not know that Rice had confessed the homicidal episode to law enforcement authorities. It may be inferred from the evidence that Larson, at the time she gave consent for search of her apartment, felt that her guilty participation in the homicides was safely beyond discovery. Larson had reason to think that directing Rice to shoot Baker would make him guilty of a murder he could not afford to admit and seal his lips as a witness, also that Rule was her bedfellow whom she could rely upon to disavow knowledge of the crime because of his participation, and was probably under the impression at that time the victims’ bodies occupied graves many miles distant from her club. On the facts known to her, the evidence suggests she could well assume that a bold show of indifference to a search of her apartment or possessions would tend to deflect suspicion from her and a thorough search would not follow.

¶24In addition to facts heretofore recited and those discussed in the opinion with which this concurs, inferences may be drawn from the record of Larson’s manipulative efforts and homicidal proclivity, together with her status and experience as a law enforcement officer and her years of association with the area law enforcement fraternity, that her consent was a contemptuous estimate of the capacity and skill of the minions of the law to make a search that would yield incriminating evidence against her. The evidence as a whole is clear and convincing in this respect. Her calm and audacious actions indicate confidence that she considered herself too cunning for the truth to be revealed and that any search that would be made would produce nothing for her to dread. Nothing occurred before the second consent to search was given to change this mind-set.

¶25On the factor of purpose and flagrancy of official misconduct, if any, the evidence discloses that the law enforcement officers proceeded in a very professional way with the homicide investigations. The arresting officer sought legal counsel from the district attorney for Titus County, as well as the county attorney of Marion County. At the officer’s request, the Marion County attorney applied to the district judge of the county for an arrest warrant. The Marion County attorney prepared the application, order, and warrant, and the judge, after hearing, authorized issuance.

¶26On the advice of the Titus County district attorney that a search warrant should not be sought, but instead that permission to search be requested of the arrested party, the arresting officer did not request counsel to apply for search warrants. The officer was advised that he had a perfectly lawful procedural option to request an arrested person to give consent to search, and the evidence discloses no trickery, deceit, action, or conduct designed to coerce, overreach, mislead, or otherwise improperly induce Larson to consent to a search at any time, before or after the request was made.

¶27The arrest warrant was invalid because of errors of law in the application and hearing. No conduct of the enforcement officers can be characterized as flagrant. Neither can the procedural errors of law that invalidated the warrant be described as flagrant misconduct. If commission of an error of law in a legal proceeding is per se flagrant misconduct, the active State Bar, including the judiciary, frequency so offends.

¶28The original concurring opinion filed herein is withdrawn and this revised concurring *210opinion replaces it. Reconsideration of the disposition of the case has been made, some minor factual inaccuracies have been corrected, and additional evidence pointed out and discussed. For the reasons stated, I concur in overruling the motion for new trial and affirmance of the judgment herein.