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 .

Ethical Problems with Giving Free Legal Advice

Q: Hey, are you really a lawyer? Can I ask you a couple of questions?

How many times have we been approached by someone with those questions? Is this person now a client or just a minor irritation? Do we have ethical obligations in that situation? What are they? Are we going to get sued?1 Whether it is for a friend or for a stranger, giving someone off-the-cuff advice can have consequences.

Q: Is there even an attorney client relationship?

The Texas Disciplinary Rule of Professional Conduct (The Rules) 1.182 and its comments define when an attorney-client relationship exists and outline the resulting duties. “A person who consults with a lawyer about the possibility of forming a cli­ent lawyer relationship with respect to a matter is a prospective client.” Rule 1.18(a). Duties are owed whether it is a prospective or an actual client.

The legal relationship of attorney and client is purely contractual. It may be implied from the conduct of the parties if the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship. Parker v. Carnahan, 772 S. W. 2d 151, 156 (Tex.App.—Texarkana 1989, writ denied). An attorney can be negligent in failing to advise that he is not representing someone where the circumstances lead that party to believe that the attorney is representing them. In the Parker case, a client’s wife signed documents in a lawyer’s office and therefore assumed that he was representing her and sued him. Parker v. Carnahan at p. 157. That lawsuit might have been avoided if the attorney had specifically told his client’s wife that he did not represent her.

If there is a written agreement specifying that the parties entered into a business deal rather than an attorney-client relationship, it is not dispositive. Rosas v. Commission for Lawyer Discipline, 335 S. W. 3d 311, 317 (Tex.App.—San Antonio 2010, no pet.). Mr. Rosas, the attorney in the above case, had such an agreement yet an attorney-client relationship was found due to the actions he had taken—filing documents and scheduling a hearing.

Whether an attorney-client relationship is created or not is based on objective standards of what the parties said and did and not on their alleged subjective states of mind. Actions and words are examined, as well as the circumstances at the time in question. Terrell v. State, 891 S. W. 2d 307, 313–314 (Tex.App.—El Paso 1994, pet. ref’d). The relationship of attorney and client is not dependent upon the payment of a fee, nor upon the execution of a formal contract. E. F. Hutton v. Brown, 305 F. Supp. 371, 388 (S.D. Tex. 1969).

An implied attorney-client relationship can be established by a request for representation, an engagement or confidentiality agreement, an expression of a belief by the purported client that the individual was acting as his attorney, an agreement or assurances that conversations were privileged or confidential, and/or the provision of legal advice. In re Baytown Nissan, 451 S. W. 3d 140 (Tex.App.—Houston [1st Dist.] 2014.

A: If no legal advice was ever given that indicates there was no attorney-client relationship.

Kiger v. Balestri, 376 S. W. 3d 287, 295 (Tex.App.—Dallas 2012, pet. denied). A client may have more than one lawyer, so the fact that the client already has a lawyer does not defeat the existence of an attorney-client relationship with another attorney. For example, an attorney-client relationship might be established by a friend asking you for a second opinion about his case.

Q: What are the dangers of establishing an attorney-client relationship?

There is a huge amount of litigation on the issue of whether an attorney-client relationship exists. These cases arise in the context of an attorney defending against: a grievance, a legal malpractice claim, an ineffective assistance of counsel writ, and deceptive trade actions. It takes very little for an attorney who gives legal advice to become a defendant. Sometimes the lawyer wins these cases, and sometimes it is the individual who believes he is a client.

Q: What duties arise from an attorney-client relationship?

Once the attorney-client relationship is established, a lawyer owes numerous duties to the client. Ethically the most important are these:

  • To use utmost good faith in dealings with the client;
  • To maintain the confidences of the client; and
  • To use reasonable care in rendering professional services to the client.3

A) Attorney-client privilege

Any client may refuse to allow disclosure of confidential communications. Tex. R. Crim. Evid. 503 (b) A communication is confidential if it is not intended to be disclosed. This privilege belongs to the client, and only the client can waive it. Carmona v. State, 947 S. W. 2d 661, 663 (Tex.App.—Austin 1997, no pet.)

Rule 1.054 protects the client from disclosure by the attorney of both privileged and unprivileged information. This includes all information relating to a client, or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. The general rule is that an attorney may not reveal this information. This rule extends to former clients. Rule 1.05 (a), (b). Breaching confidentiality can and has resulted in litigation.

A: Narrow exceptions to the attorney-client privilege

There is an exception to the attorney-client privilege if the services of the lawyer were sought or obtained to enable anyone to commit or plan to commit a crime or fraud. Tex. R. Crim. Evid. 503 (d)(1) “[A] continuing or future crime is not enough; the attorney’s services must be sought or obtained to enable or aid the commission of the crime.” Henderson v. State, 962 S. W. 2d 544, 552 (Tex.Crim.App. 1997).

The lawyer may (but is not required to) reveal confidential information to the detriment of the client when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a fraudulent or criminal act. Of course, the lawyer may also reveal confidential information to defend himself in a dispute with the client, or when the client consents, or when it is necessary to do so to represent the client (implied authorization), or to clean up a criminal or fraudulent act the client used the lawyer’s services to commit. Rule 1.05(c), (1–8) (d) (1–2).

The lawyer shall reveal confidential information when that confidential information clearly establishes that the client is likely to commit a criminal or fraudulent act that is likely to result in death or serious bodily harm to a person—but only to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. The Rule 1.05(e).

The comment to this rule reminds us how extremely limited that duty is. This is because the proper functioning of the legal system depends upon the preservation of the attorney-client priv­i­lege. There is a balancing test: that of potential victims against the client’s need to be truthful with the attorney so that the attorney can counsel against the wrongful action. “When the threatened injury is grave the lawyer’s interest in preventing the harm may be more compelling than the interest in preserving the confidentiality of the information.” Henderson v. State, 962 S. W. 2d 544, 554–555 (Tex.Crim.App. 1997). The Henderson court reminds us that the ethical rules require maintaining confidentiality as to past activities.

The grave circumstances requiring disclosure detailed in Henderson are defined by example: a kidnap victim who is tied up, still alive, but will die unless the location is revealed quickly—and the lawyer and the client are the only ones with that information. Henderson at p. 556. The comment to the Model Rules of Professional Conduct gives an example of a client who has discharged toxic waste into the town’s water supply, and the lawyer’s disclosure is necessary to prevent a present and substantial risk that those who drink the water will contract a life-threatening and debilitating disease.5 Texas adopted the Model Rules in 1989.

Disclosing a statement given by a client to the attorney in confidence is deceitful and fraudulent. It also has been treated as a tortuous breach of duty. Damages for mental suffering can be appropriate because this is an invasion of privacy. Perez v. Kirk & Carrigan, 822 S. W. 2d 261, 266–267 (Tex.App.—Corpus Christi 1991, pet. denied).

A: Attorney-client privilege not applicable

Attorneys may release information and even testify against the client when no communication is involved—i.e., when the information is the result of the attorney’s observations. For example, information may be disclosed as to the following: the client’s location, the fact that the lawyer did not forge the client’s name on a document or that that the attorney was not the client’s bondsman, the attorney’s presence during a lineup, and information about the preparation of affidavits. An attorney’s communication to the client of a trial setting is not subject to the attorney-client privilege. Austin v. State, 934 S. W. 2d 672 (Tex.Crim.App. 1996).

B) Conflict of interest

The ethical duty to avoid conflicts of interest with one’s client is most commonly breached in criminal law by the representation of co-defendants.

Rule 1.06(a)6 dictates that a lawyer shall not represent opposing parties to the same litigation on a substantially related matter in which interests are materially and directly adverse. The comment to this rule explains that loyalty is an essential element in the lawyer’s relationship to the client. “Directly adverse” is defined as “if the lawyer’s independent judgment on behalf of a client or the lawyer’s ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer’s responsibilities to the other client.” State Bar of Texas v. Dolenz, 3 S.W.3d 260, 270–272 (Tex.App.—Dallas 1999, no pet.).

Client’s consent as an affirmative defense to a conflict

Of course a client can waive the conflict and consent to his attorney’s representation. That can provide a defense to the attorney in grievance proceedings or in defending against a writ. But this defense puts the burden on the attorney to prove: that the attorney reasonably believed the representation of each client (usually co-defendants) would not be materially affected, that there was full disclosure of all relevant facts to each client, and that the client(s) consented. It is a heavy burden the attorney bears to demonstrate that all relevant facts relating to the conflict were disclosed and explained to the client. An attorney breaches an ethical duty to his clients when he represents co-defendants and fails to advise each of them of even a potential conflict of interest. Ex parte Acosta, 672 S. W. 2d 470 (Tex.Crim.App. 1984) In the Acosta case the conflict did not become apparent until the middle of a contested hearing. The attorney was faulted for representing co-defendants and not advising them that a conflict might arise in the future.

C) Competent advice

Rule 2.01 states that “[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

A client is entitled to straightforward advice expressing the lawyer’s honest assessment . . . [A] lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.7

This means that one has to put one’s “people pleasing” traits aside when giving advice and tell the potential client things like “I understand the complainant shot off his mouth and that you felt he needed to be hit, but ‘needing to be hit’ does not actually provide a legal defense.” This can be hard to do in a social setting.

D) Neglect

Rule 1.018 provides that a lawyer shall not accept or continue employment in a legal matter which the lawyer either knows or should know is beyond that lawyer’s competence (un­less the lawyer gets help). Furthermore, attorneys shall not ne­glect a legal matter entrusted to them or fail to carry out obligations owed to the client. Rule 1.15(d)9 provides that upon termination of representation that the lawyer shall continue to protect the client’s interests.

Once an attorney-client relationship is established, an at­tor­ney cannot neglect his client’s defense by failing to give advice upon request, failing to appear for hearings, or failing to represent the client. Hawkins v. Commission for Lawyer Discipline, 988 S.W.2d 927, 937 (Tex.App.—El Paso 1999, pet. denied). Mr. Hawkins was an attorney who did not believe that he represented the client in question. He was a probate lawyer who was court-appointed on a criminal case and believed he was required to with­draw because he was not competent to handle the case. Unfortunately, he chose to quit working on the case once his motion to withdraw was denied by the trial court. He was also grieved and disciplined.

Each attorney is held to the standard of care that would be exercised by a reasonably prudent attorney—an objective ex­ercise of professional judgment, not a subjective belief that his acts are in good faith. If an attorney’s decision is that which a rea­sonably prudent attorney could make in the same or similar circumstances, there is no negligence even if an undesirable result occurs.

E) Fees

Rule 1.04 (a) provides: “A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a reasonable lawyer could not form a reasonable belief that the fee is reasonable.”

F) Soliciting employment

Disbarment of an attorney for soliciting employment is not an abuse of discretion even if it is an isolated act. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994)

Conclusion

In a moment of weakness you tell one of your buddies from the gym he just might have a defense to that DWI case he picked up Christmas Eve. Maybe you go on and suggest that the compelled warrantless blood draw probably should get thrown out. If you actually give him advice, he might believe that you represent him. It is possible that the more advice given, the firmer that belief. Certain questions to ask yourself: Should you tell him that you do not represent him? Are you required to keep his secrets now? Can you still represent someone whose interests are adverse to his? Do you have a duty to make sure that you give him good advice and that you have all of the facts necessary to accomplish that? Will he expect you to show up to court? These might be questions to consider. Me, I tell people that I am just there to repair the copier.

Notes

1. The point of this article is to avoid a lawsuit that none of us can afford, not to win a lawsuit.

2. Duties to Prospective Clients.

3. Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex.App.—Corpus Christi 1994, no writ.) ; Rule 1.18.

4. Confidentiality of Information.

5. Model Rules of Professional Conduct Comment on Rule 1.6 Confidentiality of Information.

6. Conflict of Interest: General Rule.

7. Comment to Texas Disciplinary Rule 2.01.

8. Competent and Diligent Representation.

9. Declining or Terminating Representation.

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

Conclusion

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?

Notes

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).