Gregory Joseph Giossi v. State

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



ON MOTION FOR REHEARING

NO. 3-91-495-CR

GREGORY JOSEPH GIOSSI,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0106294, HONORABLE BOB PERKINS, JUDGE

PER CURIAM

In its motion for rehearing, the State argues that the evidence should not be suppressed because there was an independent source of probable cause to arrest appellant and search his truck. The independent source doctrine is an exception to the court-created federal exclusionary rule. See Murray v. United States, 487 U.S. 533 (1988); 4 Wayne R. LaFave, Search and Seizure § 11.4(a) (2d ed. 1987). Appellant invokes, however, the statutory exclusionary rule found in art. 38.23. It has been held that there is no independent source or inevitable discovery exception to art. 38.23. Garcia v. State, No. 945-90 (Tex. Crim. App., March 25, 1992); Oliver v. State, 711 S.W.2d 442 (Tex. App. 1986, pet. ref'd).

We also find that there is no evidentiary basis for applying the doctrine in this cause. The State relies on the following testimony by Officer Limon:

Q. And once you observed that knife did you convey that information to Officer Adams?

A. I conveyed it to Officer Pollard who was on the passenger's side of the vehicle.

Q. Did he see the knife at the same time you did?

A. Yes, sir, he did.

This is the only reference to an Officer Pollard in the statement of facts. The record does not disclose when this fourth officer arrived at the scene or how he came to be standing by appellant's truck. This testimony does not support the State's assertion that Pollard "took no part in the illegal detention of the appellant." There is no basis in the record for concluding that this officer's observations were independent of the unlawful detention of appellant.

The State's motion for rehearing is overruled.

[Before Justices Powers, Jones and Kidd; Justice Powers not participating]

State's Motion for Rehearing Overruled

Filed: July 1, 1992

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