Texas’s exclusionary rule not inconsistent with independent source doctrine

Texas’s exclusionary rule does not bar application of the independent source rule because evidence found subject to it is lawfully found. Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. LEXIS 2013) (concur; dissent), appeal from 385 S.W.3d 715 (Tex. App. – Fort Worth 2012):

The Texas exclusionary rule provides in relevant part that “No evidence obtained … in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex. Code Crim. Proc. art. 38.23. To determine the meaning of this provision, we examine its plain language. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991); see also Daugherty, 931 S.W.2d at 270 (examining plain language of Article 38.23); Johnson, 871 S.W.2d at 750 (same); Garcia, 829 S.W.2d at 799 (same).

Evidence is “obtained” if it is “possessed,” “gained or attained,” usually “by planned action or effort.” Webster’s New Collegiate Dictionary 816 (9th ed. 1988); see also Daugherty, 931 S.W.2d at 270 (same). Applying this definition in the context of the Texas exclusionary rule, the word obtained means that evidence is acquired by planned action or effort, or, more specifically, by seizure. Id. Applying this ordinary definition, this Court has previously interpreted Article 38.23 to mean that evidence is “obtained” in violation of the law only if there is some causal connection between the illegal conduct and the acquisition of evidence. Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App. 2001); Daugherty, 931 S.W.2d at 270 (“Once the illegality and its causal connection to the evidence have been established, the evidence must be excluded” under Article 38.23). Conversely, if there is no causal connection, then the evidence cannot be said to have been “obtained” in violation of the law and thus is not subject to exclusion under the statute. Daugherty, 931 S.W.2d at 270-71; Powell, 306 S.W.3d at 770 n.18 (noting in dicta that “[a]bsent a ‘but-for’ causal connection between any unlawful seizure … and the discovery of [evidence], our state exclusionary rule . . . would not require exclusion”); Sorto v. State, 173 S.W.3d 469, 487 n.71 (Tex. Crim. App. 2005) (suppression not warranted because, among other factors, there was no showing of “any causal connection” between purported violation of law and challenged evidence). The existence of a but-for causal connection between the illegality and the obtainment of evidence is thus a prerequisite to application of the statutory exclusionary rule, for without at least some causal link, the evidence is not properly understood as having been “obtained” unlawfully, as an ordinary person would interpret that term. See Daugherty, 931 S.W.2d at 270; Johnson, 871 S.W.2d at 750.

Furthermore, this Court has long recognized that evidence is not “obtained” in violation of the law within the plain meaning of Article 38.23 if the taint from the illegality has dissipated by the time the evidence is acquired. Johnson, 871 S.W.2d at 750. In Johnson, this Court adopted the federal attenuation doctrine as being consistent with the express provisions of Article 38.23 because “evidence sufficiently attenuated from the violation of the law is not considered to be ‘obtained’ therefrom.” Id. at 750-51. The Court further reasoned that the attenuation doctrine was not an impermissible non-statutory exception to the exclusionary rule, but rather was “a method of determining whether evidence was ‘obtained’ in violation of the law, with ‘obtained’ being included in the plain language of the statute.” Id. at 751; see Wong Sun, 371 U.S. at 487-88 (describing attenuation analysis as being an inquiry into “whether, granting establishment of the primary illegality, the [challenged] evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”); State v. Mazuca, 375 S.W.3d 294, 300 n.18 (Tex. Crim. App. 2012) (noting that attenuation doctrine “applies in determining whether evidence has been unlawfully ‘obtained’ for purposes of” Article 38.23).