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).
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"A system of law that not only makes certain conduct criminal, but also lays
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)