Attenuation of Taint: Empty Promises of the Fourth Amendment

On May 23, 2012, a majority of the Texas Court of Criminal Appeals held that discovery of outstanding arrest warrants may break the causal connection between an illegal stop and the discovery of evidence used to prosecute our clients.2 This would render evidence admissible despite violations of the U.S. Constitution, Amendment IV. This article is loosely based on the motion for rehearing, the petition for writ of certiorari pending at the time of the writing, and a passion for the Bill of Rights, especially the Fourth Amendment.

There is currently a sharp division among the state courts of last resort and the federal district courts as to whether an arrest warrant found as a result of a bad stop can attenuate the taint of that stop.3 In addition to the sharp division within the nation, there is a division within the Texas Court of Criminal Appeals (four judges dissenting to Mazuca with two separate written dissents). There also appears to be a division in Texas jurisprudence, as a recent case with almost identical facts did not result in an arrest warrant attenuating the unlawful stop.4 The St. George5 case is cited by the majority in Mazuca, but it is neither distinguished nor overruled. This appears to be a case that is ripe for the United States Supreme Court—as it was an issue expressly left open in Brendlin.6

The majority of the Texas Court of Criminal Appeals cites Hudson7 for the proposition that the exclusionary rule extracts a substantial societal cost in exercising its deterrent function, and that application of the exclusionary rule should operate as a “last resort” and not a “first impulse.”8 That language did not command a majority of the Hudson court. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.9 Justices Scalia, Roberts, Thomas, and Alito joined in the holding cited by the majority in minimizing the importance of the exclusionary rule. The concurrence by Justice Kennedy states,
“[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”10

The four Justices dissenting11 describe the exclusionary rule as the “strongest legal incentive”12 for the police officers to follow the law, stating that “the driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression.”13 Therefore, the opinion by the five judges on the Texas Court of Criminal Appeals14 that the exclusionary rule is dead or dying is not shared by a majority of the United States Supreme Court. The composition of the United States Supreme Court has changed since the Hudson decision, but the new appointees should favor the continued viability of the exclusionary rule.15

The circular reasoning that would allow evidence found by virtue of an unlawful detention and unwarned custodial questioning to justify that detention would effectively read the Fourth Amendment out of the United States Constitution. The proposition that the evidence that is found justifies the arrest or the seizure is a specious argument. If valid, it means that an officer may stop and search every vehicle or foot passenger on the highway and if a traffic warrant is found the search would be legal. Such practice would “suit the purpose of despotic power, but it cannot abide in the pure atmosphere of political liberty and personal freedom.”16

Indiscriminate search and seizures were the immediate evils that motivated the framing and adoption of the Fourth Amendment.17 Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance, under which officers of the crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased. They were denounced by James Otis as the “worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law . . . because they place the liberty of every man in the hands of every petty officer.”18

The State cannot use information gained by evidence unlawfully seized to frame a new indictment and use the evidence in prosecution. “The Government now . . . seeks to maintain its right to avail itself of the knowledge obtained . . . which otherwise it would not have had. . . . It reduces the Fourth Amendment to a form of words. . . .[19] The essence of the provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”20

Cases dealing with exceptions to the warrant requirement of the Fourth Amendment teach us that the state cannot create that exception. In the context of plain view searches it is “an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.”21 Similarly, officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs.22 The exigent circumstance rule justifies a warrantless search where the conduct of the police preceding the exigency was reasonable. The police cannot create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.23

“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”24 The Mazuca25 majority held, “The court of appeals adopted an approach that would effectively presume purposeful and/or flagrant police misconduct from the fact of the primary illegality alone rather than assessing the character of that illegality, and of any subsequent police conduct, to determine whether they actually behaved purposefully or flagrantly in the particular case.”26

The violation of the Fourth Amendment is always flagrant behavior on behalf of law enforcement. Allowing warrants to attenuate the taint of Fourth Amendment violations will discriminate disproportionally against those who do not pay traffic tickets—poor people. A vagrancy ordinance that appeared to make it a crime to be poor was found to be unconstitutional in 1972 by the United States Supreme Court.27 Depriving the poor of the benefit of the Fourth Amendment would be likewise unconstitutional. Statutes that vest complete discretion in law enforcement are unconstitutional.28

As noted in Almeida-Sanchez v. United States: “These [Fourth Amendment rights], I protest, are not mere second class rights but belong in the catalog of indispensible freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”29 And, from Papachristou v. Jacksonville, “Where . . . there are no standards governing the exercise of discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.”30 The governmental interest in crime control does not create an exception to the Fourth Amendment prohibition against unreasonable search and seizures.31

The Mazuca holding makes it difficult to ascertain the appropriate scope of an unlawful stop. “So, while the initial traffic stop was illegal, [the police] never went beyond the bounds of what would have been constitutionally permissible had the stop in fact been justified at its inception.”32 A seizure must be reasonably related to the circumstances that justified the stop in the first place.33 In Ohio v. Robinette, Justice Ginsburg discussed the need to evaluate both the reason for the initial detention as well as the scope of the detention to ensure that police officers are not using traffic stops merely as a means to conduct “fishing expeditions.”34 How long can law enforcement detain someone without a valid reason? One supposes until they find one.

Coolidge v. New Hampshire35 places the burden on the prosecution to establish that any search or seizure was justified under an exception to the warrant requirement. Conversely, the Texas Court of Criminal Appeals would require the defense to show the taint was not attenuated, creating a presumption of lawful intent on the part of law enforcement.36 The Texas Court specifically notes, “There is no indication that they were making traffic stops for any purpose other than to enforce the traffic laws or that they harbored the specific hope or expectation that they might obtain the consent of motorists to search their vehicles or identify motorists with outstanding arrest warrants so that they might conduct searches incident to arrest.”37 This language clearly places the burden on the defense to show that law enforcement was acting with the motive to violate the defendant’s Fourth Amendment rather than on the State to show that the officer had an altruistic motive.

The Mazuca majority finds that “While Lopez-Valdez makes it evident that [the police officers] should have known better than to conduct a traffic stop for the reason they did, nothing in the present record establishes that they actually did know.”38

The Supreme Court has not found the officers’ subjective intent to be relevant—or made good faith an exception to the requirement for probable cause. “[G]ood faith is not enough to constitute probable cause. That faith must be grounded on facts . . . , which in the judgment of the court would make his faith reasonable.”39 United States v. Cortez added, “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”40 The Constitutional reasonableness of traffic stops does not depend “on the actual motivations of the officer’s involved.”41 “[W]e look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.”42

The question of malice or of good faith is not an element of the case. It is not a question of motive. If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. Whether the officer seized the occasion to do an act which would in­jure another, or whether he moved reluctantly, is quite im­material.43


There are many frightening implications of the Mazuca case. Not discussed is the lack of deference to the factual findings made by the trial judge who actually heard the testimony and observed the witnesses. This trend of the Court of Criminal Appeals making factual findings is disturbing and merits its own article. Is the future of the exclusionary rule in jeopardy? If what is found justifies the way it is found, what protection can the Fourth Amendment give? Are general warrants now lawful for everyone or just those unable to pay their traffic fines? If violating the Fourth Amendment is not flagrant behavior on the part of law enforcement, what is? Why is the burden of proof on the defense and the subjective intent of law enforcement suddenly relevant after years of consistent holdings otherwise? And perhaps, most importantly, exactly how is the accused to show what a cop was thinking?


1. “Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise.” Mapp v. Ohio, 367 U.S. 643, 659–60, 81 S. Ct. 1684; 6 L. Ed. 2d 1081 (1961).
2. Mazuca v. State, 375 S. W. 3d 294, 310 (Tex. Crim. App. 2012). (Judge Price wrote for the majority, Judges Myers, Johnson, Keller and Womack dissenting).
3. United States v. Simpson, 439 F. 3d 490 (8th Cir. 2006); United States v. Green, 111 F. 3d 515 (7th Cir. 1997); State v. Frierson, 926 So. 2d 1139 (Fla. 2006); State v. Page, 103 P. 3d 454 (Idaho 2004); State v. Martin, 179 P. 3d 457 (Kan. 2008); State v. Hill, 725 So. 2d. 1282 (La. 1998); Myers v. State, 909 A. 2d 1048 (Md. 2006); Jacobs v. State, 128 P. 3d 1085 (Okla. Crim. App. 2006); State v. Dunn, 172 P. 3d 110, 115–16(Mont. 2007)…
3. United States v. Lopez, 443 F. 3d 1280 (10th Cir. 2006); United States v. Luckett, 484 F. 2d 89 (9th Cir. 1973); People v. Padgett, 932 P. 2d 810 (Colo. 1997); Sikes v. State, 448 S.E. 2d 560 (S.C. 1994); State v. Daniel, 12 S.W. 3d 420 (Tenn. 2000); St. George v. State, 237 S.W. 3d 720 (Tex. Crim. App. 2007); State v. Topanotes, 76 p. 3d 1159 (Utah 2003). Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008).
4. St. George v. State, 237 S.W. 3d 720 (Tex. Crim. App. 2007).
5. Id.
6. Brendlin v. California, 551 U.S. 249; 127 S. Ct. 2400; 168 L. Ed. 2d 132 (2007). The case was remanded to the California Supreme Court to see if the outstanding warrants attenuated the taint of the unlawful stop. The California Supreme Court happily found that the warrants did attenuate the taint, that stopping someone without a valid reason was not flagrant behavior on behalf of law enforcement. People v. Brendlin, 195 P. 3d 1074 (California Supreme Court, 2008, cert. denied).
7. Hudson v. Michigan, 547 U.S. 586, 595, 126 S. Ct. 2159; 165 L. Ed. 56 (2006).
8. Mazuca, supra, at p. 300.
9. Gregg v. Georgia, 428 U.S. 153; 96 S. Ct. 2909; 49 L. Ed. 2d 859 (1976).
10. Hudson, supra, 547 U.S. at 603.
11. Justices Breyer, Stevens, Souter, and Ginsburg.
12. Hudson, supra, at p. 605.
13. Hudson, Id., p. 608.
14. Judges Price, Alcala, Hervey, Keasler, and Cochran.
15. This is my best guess based on the SCOTUS decision in United States v. Jones, 132 S. Ct. 945; 181 L. Ed. 2d 911 (2012) (J. Sotomayor’s concurrence).
16. Carroll v. United States, 267 U.S. 132; 45 S. Ct. 280; 69 L. Ed. 543 (1923), citing Boyd v. United States, 116 U.S. 616; 6 S. Ct. 524; 29 L. Ed 746 (1886).
17. U.S. Constitution, Amendment IV.
18. Payton v. New York, 445 U.S. 573; 583–584; 100 S. Ct. 1371; 63 L. Ed. 2d 639 (1980).
19. Weeks v. United States, 232 U.S. 383, 393.
20. Silverthorne Lumber Co. v. United States, 251 U.S. 385; 391; 40 S. Ct. 182; 64 L. Ed. 319 (1920).
21. Horton v. California, 496 U.S. 128, 136; 110 S. Ct. 2301; 110 L. Ed. 2d 112 (1990)
22. INS v. Delgado, 466 U.S. 210, 217 n. 5; 104 S. Ct. 1758; 80 L. Ed. 2d 247 (1984) (noting that officers who entered into consent-based encounters were lawfully present in the factory pursuant to consent or a warrant).
23. Kentucky v. King, 131 S. Ct. 1849; 179 L. Ed. 2d 865 (2011).
24. Papachristou v. Jacksonville, 405 U.S. 156, 166; 92 S. Ct. 839; 31 L. Ed. 2d 110, (1972) citing United States v. Reese, 92 U.S. 214, 221.
25. Mazuca, supra, p. 310 [emphasis in the original].
26. Papachristou v. Jacksonville, 405 U.S. 156, 166; 92 S. Ct. 839; 31 L. Ed. 2d 110 (1972).
27. Papachristou v. Jacksonville, 405 U.S. 156, 166; 92 S. Ct. 839; 31 L. Ed. 2d 110 (1972).
28. Kolender v. Lawson, 461 U.S. 352; 103 S. Ct. 1855; 75 L. Ed. 2d 903 (1983).
29. Almeida-Sanchez v. United States, 413 U.S. 266, 274; 93 S. Ct. 2535; 37 L. ed. 2d 596 (1973), citing Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J. dissenting).
30. Papachristou v. Jacksonville, 405 U.S. 156, 170; 92 S. Ct. 839; 31 L. Ed. 2d 110 (1972), citing Thornhill v. Alabama, 310 U.S. 88, 97–98.
31. Indianapolis v. Edmond, 531 U.S. 32; 121 S. Ct. 447; 148 L. Ed. 2d 333 (2000).
32. Mazuca, supra.
33. Terry v. Ohio, 392 U.S. 1, 19–20; 20 L. Ed. 2d 889; 88 S. Ct. 1868 (1968).
34. Ohio v. Robinette, 519 U.S. 33, 41; 136 L. Ed. 2d 347; 117 S. Ct. 417 (1996) (Ginsburg J, concurring).
35. Coolidge v. New Hampshire, 403 U.S. 443; 454–55; 29 L. Ed. 2d 564; 91 S. Ct. 2022 (1971).
36. Is Monge v. State, 315 S. W. 3d 35, 40 (Tex. Crim. App. 2010), over-ruled? Monge is a recent CCA case that places the burden on the State to show attenuation.
37. Mazuca v. State, 375 S. W. 294, 310 (Tex. Crim. App. 2012).
38. Id., p. 310, citing United States v. Lopez-Valdez, 178 F. 3d 282, 288 (5th Cir. 1999)
39. Director General of Railroads v. Kastenbaum, 263 U.S. 25, 27; 44 S. Ct. 52; 68 L. Ed. 146; (1923).
40. United States v. Cortez, 449 U.S. 411; 416; 101 S. Ct. 690; 66 L. Ed. 2d 621 (1984) [emphasis added].
41. Whren v. United States, 517 U.S. 806; 813; 116 S. Ct. 1769; 135 L. Ed. 2d 89 (1996).
42. Ashcroft v. Kidd, 131 S. Ct. 2074; 2083; 179 L.Ed. 2d 1149 (2011).
43. Stacey v. Emery, 97 U.S. 642; 645; 24 L. Ed. 1035; (1878).

Janet Burnett
Janet Burnett
Janet Burnett is a board certified criminal defense lawyer in solo practice in Georgetown, Texas. She has an appellate practice. Janet’s practice is primarily research and writing (for her own clients and for other lawyers’ clients through Rent-a-Nerd). She can be reached at .

Janet Burnett is a board certified criminal defense lawyer in solo practice in Georgetown, Texas. She has an appellate practice. Janet’s practice is primarily research and writing (for her own clients and for other lawyers’ clients through Rent-a-Nerd). She can be reached at .

Previous Story

Way Opened for Mid-Trial Review of Trial Court Rulings

Next Story

My Report to TCDLA

Latest from Features