Dunn v. State

¶1concurring.

¶2In his first and second points of error, appellant contends that because the warrant for his arrest was not signed by the issuing magistrate prior to his arrest, the arrest was illegal. Therefore, he argues, the trial court erred in failing to suppress evidence gained as a result of the arrest.

¶3The record below shows the police gave the magistrate numerous supporting affidavits and warrants together with the arrest warrant for appellant. Based on the affidavits, the magistrate found probable cause existed to issue the warrants, including the arrest warrant for appellant. He initialed each page of the supporting affidavits, dated and signed each of the warrants, except for the arrest warrant for appellant, which was not signed. The police, believing in good faith the magistrate signed the arrest war*481rant for appellant, arrested appellant, only to discover that once they had him in custody the arrest warrant had not been signed. The magistrate signed the arrest warrant shortly thereafter.

¶4During their search of appellant incident to the arrest, the police found the victim’s car keys as well as a receipt for a stereo installed by the appellant in the victim’s car after the victim’s murder. Several hours later, appellant waived his rights and gave a recorded video statement to the police in which he confessed to robbing and shooting the victim, and then driving away from the murder scene in the victim’s truck.1 Appellant continued to use the victim’s truck until the time of his arrest. The recorded video statement was given by appellant about three hours after the magistrate signed the warrant for appellant’s arrest and about six hours after his actual arrest.

¶5Appellant does not challenge the finding of the magistrate that probable cause to arrest him was present at the time of his arrest. The record demonstrates the magistrate reviewed and initialed the affidavits supporting his finding of probable cause. The magistrate signed the other warrants — relating to several other suspects who were alleged to have been involved along with appellant in the commission of this offense — but simply failed to sign the arrest warrant for appellant. Appellant does not aver the police acted in bad faith in any way or that they knew, at the time they arrested him, the arrest warrant lacked the signature of the magistrate.

¶6Appellant is correct in his assertion that Texas Code of Criminal Procedure Article 15.02 requires an arrest warrant “be signed by the magistrate.” It is also true that article 38.23(a) provides for the exclusion of “evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or of the Constitution or laws of the United States of America.” However, article 38.23(b) provides: “It is an exception to the provisions of subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” A review of the totality of the circumstances clearly shows the magistrate made the proper finding of probable cause to issue the warrant for appellant’s arrest but inadvertently failed to sign the warrant itself — one of a package of several warrants — although his intent to do so is obvious. Given these circumstances, to hold the warrant did not issue for purposes of article 15.02 as well as for purposes of article 38.23(b) — the good faith exception — would be, in my opinion, an absurd result clearly in contravention of the intent of the Legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

¶7Yet, even if one accepts appellant’s argument that no valid warrant had been issued at the time of his arrest because it lacked a magistrate’s signature, the United States Supreme Court’s recent holding in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), is dispositive. In Arizona v. Evans, the police, relying in good faith on what they thought was a valid outstanding arrest warrant, placed Evans under arrest subsequent to a stop for a traffic law violation. Unknown to the officers at the time, the arrest warrant was no longer outstanding as it had expired. However, due to a clerical oversight, the arrest warrant had not been deleted from the computer system when the police stopped Evans. During the search incident to Evans’ arrest, the police found a bag of marijuana and he was charged with its possession.

¶8The Supreme Court found that while Evans’ arrest had been made based on a warrant that, in effect, did not exist at the time of his arrest, the police, in good faith, believed they were acting pursuant to a valid arrest warrant based on probable cause. The Supreme Court held that the exclusionary rule does not require suppression of evidence seized in violation of the Fourth Amendment where the seizure was made pursuant to a warrant that was not valid because of clerical errors of court employees, but which police did not know was invalid. *482The exclusionary rule is a judicially-created remedy designed to safeguard against future violations of Fourth Amendment rights through its deterrent effect. The exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. See United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984).

¶9In Arizona v. Evans the Court noted its holdings in Leon, supra,and Illinois v. Krull, 480 U.S. 340, 348, 107 S.Ct. 1160, 1166, 94 L.Ed.2d 364 (1987). In Krull, the Court held there was no sound reason to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers who are responsible for issuing warrants. There is “no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires the application of the extreme sanction of exclusion.” Krull, supra,480 U.S. at 348, 107 S.Ct. at 1166 (citing Leon, supra,468 U.S. at 915-17, 104 S.Ct. at 3417).

¶10In the present case, the police, acting in good faith and pursuant to what they reasonably believed was a valid arrest warrant, arrested appellant. There is nothing in the record to support any allegation of bad faith or misconduct on the part of the police or the magistrate — much less the presence of bad faith or misconduct of the level requiring invocation of the draconian step of application of the exclusionary rule, thereby suppressing the confession of appellant as fruit of an illegal arrest. Therefore the Fourth Amendment does not require that the evidence seized pursuant to the arrest of appellant — including his confession — be suppressed as the police acted in good faith on what they reasonably believed was a valid arrest warrant.

¶11Finally, appellant’s confession is admissible even if, assuming arguendo, his arrest was illegal. This Court has held that if a confession results from an illegal arrest the confession will be suppressed unless there are sufficient facts to show the taint of the illegal arrest has been attenuated from the later confession. We have consistently applied the four-prong test set forth by the Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), to determine if sufficient attenuation has occurred between the illegal arrest and the confession so as to make the confession admissible:

(1) whether the Miranda2 warnings were given;

(2) the presence of intervening circumstances;

(3) the temporal proximity of the arrest and confession; and

(4) the purpose and flagrancy of the official misconduct.

¶12Brown v. Illinois, 422 U.S. at 601-03, 95 S.Ct. at 2261; Dowthitt v. State, 931 S.W.2d 244, 261 (Tex.Crim.App.1996); Bell v. State, 938 S.W.2d 35, 47 n. 23 (Tex.Crim.App.1996); Self v. State, 709 S.W.2d 662, 666 (Tex.Crim.App.1986).

¶13The record indicates appellant received his Miranda warnings at least twice and he also received the additional article 38.22 warnings immediately before he gave his videotaped statement. There were at least two intervening circumstances, including the confession by a codefendant implicating appellant in the murder and the actual signing of the arrest warrant by the magistrate. Third, several hours passed between the time of the arrest and the time appellant gave his statement, sufficient time to have given appellant an opportunity to reflect and to consider the consequences of confessing. Finally, there was no flagrant official misconduct; the police acted in good faith on what they thought was a valid arrest warrant based on probable cause and never intended to violate appellant’s rights. In my opinion, sufficient attenuation existed to remove any taint of the arrest (assuming it was illegal) and therefore the confession was admissible.3

¶14*483I concur with respect to the disposition of appellant’s first and second points of error. I join the opinion of the Court with respect to its disposition of appellant’s remaining points of error.