TX2: Unlawful stop-and-frisk leads to suppression of patdown and search and abandonment during flight

Defendant’s stop was without reasonable suspicion. His alleged consent was not voluntary and his flight and abandonment were not attenuated but were caused by the illegal stop and frisk. Massey v. State, 2021 Tex. App. LEXIS 9820 (Tex. App. – Ft. Worth Dec. 9, 2021):

The trial court found that an officer’s frisk of appellant James Calvin Massey was not supported by reasonable suspicion. But the court nonetheless concluded that the drug evidence should not be suppressed for three reasons.

First, it found that Massey consented to the frisk. But Massey did no more than briefly acquiesce to the officer’s command to turn around, and he began a struggle almost as soon as the search began. No reasonable trier of fact could find that this amounted to consent. The frisk was an illegal search.

Second, the trial court concluded that the taint of any illegality was attenuated when Massey committed criminal offenses after the frisk. We hold that Massey’s alleged offenses, petty and predictable as they were, do not attenuate the taint of the illegal frisk.

Third, the trial court concluded that the officer found the drugs in plain view after Massey discarded them during the detention. But the officer violated the Fourth Amendment en route to that juncture. The State therefore may not avail itself of the plain-view doctrine.

So holding, we reverse and remand.

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