State v. Daugherty

931 S.W.2d 268, 1996 Tex. Crim. App. LEXIS 88, 1996 WL 350804

• Court: Court of Criminal Appeals of Texas
• Decided: June 26, 1996
• Docket: 0924-94
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Following the lead of this Court’s plurality opinion in Garcia v. State, 829 S.W.2d 796 (Tex.Cr.App.1992), the Second Court of Appeals in this cause declined to recognize an inevitable discovery exception to the statutory exclusionary rule embodied in Article 38.23, V.A.C.C.P.¹ Daugherty v. State, 876 S.W.2d 522 (Tex.App.—Fort Worth 1994). In Garcia the plurality had reasoned that “because the federal inevitable discovery doctrine is not an exception to core prohibitions of the Fourth Amendment, but only an exception to the federal exclusionary rule, the mandate of article 38.23 to exclude any evidence obtained in violation of the United States Constitution does not, even by necessary implication, require a decision about whether evidence would inevitably have been discovered anyway.” Id., at 798. We granted the State’s petition for discretionary review in this cause to reexamine this issue. Having done that, we today reaffirm the reasoning and holding of Garcia.

We are essentially called upon in this cause to decide what Article 38.23(a) means by “evidence obtained in violation of’ the law. In our view this language brooks no inevitable discovery doctrine; evidence actually “obtained in violation of law” must be excluded whether or not it might later have been “obtained” lawfully.

The dissenters would hold that, as with the doctrine of attenuation of taint, inevitable discovery serves to “legally break” the causal connection between illegal conduct and acquisition of evidence. Dissenting op. at 278. It is this “legal” break “and not necessarily some actual break in the chain of causation [that] is what breaks the causal connection ...” Dissenting op. at 277. Thus the dissenters essentially concede that the inevitable discovery doctrine is a legal fiction — that it does not actually break the causal connection. Yet the dissenters seem to believe that because the United States Supreme Court has adopted this fiction for purposes of its own court-made exclusionary rule, somehow this legal fiction must also be found within the language of our exclusionary statute. This is a strange breed of statutory construction. The dissent attempts to bolster its claim with citation to prior opinions of this Court. But the basis for the holdings in those prior opinions is less than crystal clear. Indeed, other than in Garcia itself, which the dissenters reject out of hand, we have never squarely addressed whether Article 38.23 accommodates an inevitable discovery doctrine.

Plain Language

In divining legislative intent, we look first to the language of the statute. When the meaning is plain, we look no further. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). As Garcia made clear, the language of Article 38.23 plainly does not accommodate a doctrine of inevitable discovery. The inevitable discovery doctrine assumes a causal relationship between the illegality and the evidence. It assumes that the evidence was actually “obtained” illegally. The doctrine then asks whether the evidence would have been “obtained” eventually in any event by lawful means. But the fact that evidence could have been “obtained” lawfully anyway does not negate the fact that it was in fact “obtained” illegally. Under Article 38.23 the inquiry regarding the possible legal attainment of the evidence should never be reached. Once the illegality and its causal connection to the evidence have been established, the evidence must be excluded. See Garcia v. State, supra, at 798. The dissenters’ legal fiction that what-would-have-been somehow breaks the actual causal connection between illegality and actual procurement of evidence is decidedly not accommodated by the plain language of the statute.

Contrary to what the dissenters may claim, their opinion makes the inevitable discovery doctrine an exception to the Texas statutory exclusionary rule. But Article 38.23 already contains one express exception, see Subsection (b) thereof, and according to the rules of statutory construction, where a statute contains an express exception, its terms must apply in all cases not excepted. See 67 Tex. Jur.3d Statutes § 120 (1994); Garcia, 829 S.W.2d at 800. “In construing a statute, it is not ordinarily permissible to imply an exception ... Nor may an exception be engrafted on a statute by implication merely because there seems to be good reason for doing so.” 67 Tex.Jur.3d Statutes § 121 (1994).

The Johnson Analogy

It is true that in Johnson v. State, 871 S.W.2d 744 (Tex.Cr.App.1994), the Court held that Article 38.23 incorporates the attenuation of taint doctrine. According to the dissent, Johnson is squarely controlling, basically adopting the State’s argument that “it would make no sense to hold Article 38.23(a) incorporates the attenuation doctrine, but not the inevitable discovery doctrine.” Dissenting op. at 276. We disagree.

It makes perfect sense to say that Article 38.23 accommodates the attenuation of taint doctrine, but not inevitable discovery. Under the rules of statutory construction, words are to be interpreted according to common usage and their ordinary meaning. See Y.T.C.A. Government Code, § 311.011(a). The word “obtain” commonly means “to gain or attain usually by planned action or effort.” Webster’s New Collegiate Dictionary (1977). The ordinary meaning of “obtained” may accommodate the attenuation doctrine inasmuch as, depending on how removed the actual attainment of the evidence is from the illegality, the ordinary person would not consider that evidence to have been “obtained” by that illegality. This is especially so if the common meaning of “obtained” includes some concept of “planned action or effort.” If the police had not illegally stopped the defendant’s car, then not B; if not B, then not C; if not C, then not D; if not D, then not ... Z; if not Z, then not the evidence— there is a point beyond which the ordinary understanding of “obtained” just does not apply. By this argument Article 38.23(a) could be viewed as rejecting a strict “but/for” test for causation — although it is true that but for the initial illegality the evidence would not have been obtained, that will not be held to be “sufficient” for the purposes of exclusion of evidence because the ordinary meaning of “obtained” does not extend to such a remote, or “attenuated,” causal relationship. This construction is based on the express language of Article 38.23, not on blind obedience to United States Supreme Court decisions.

But this argument, based as it is on statutory construction, cannot plausibly be made for the inevitable discovery doctrine. Inevitable discovery assumes that the evidence was illegally obtained. From there it further inquires whether the evidence would have been obtained legally in any event. Nothing in the proceeding analysis regarding the attenuation of taint doctrine alters the fact that the plain language of Article 38.23 does not provide for an inquiry into the potential legal acquisition of evidence once it has been established that it was actually “obtained in violation of’ law.

Insufficient Causation

As we understand it, the reasoning of the dissenters proceeds as follows: 1) the Supreme Court has not adopted a pure “but/ for” causation analysis in implementing its own court-made exclusionary rule; 2) the Supreme Court has said that, under its exclusionary rule, the fact that illegally obtained evidence would inevitably have been discovered later by legitimate means serves to “legally break” the causal connection between the illegality and the evidence; 3) in Johnson v. State we concluded that Article 38.23(a) also does not embrace a pure “but/ for” causation analysis; and, 4) because “inevitable discovery” also legally breaks the causal connection, it, like the attenuation of taint doctrine at issue in Johnson, must also be accommodated by Article 38.23(a). This is a deft argument — so deft, in fact, that the redder is almost inclined to overlook the fact that it begs, rather than decides, the central question in this cause.

The whole issue here is whether for purposes of interpreting Article 38.23(a), we agree that “inevitable discovery” really does break the causal connection between the illegality and the evidence. That depends, of course, upon what Article 38.23(a) means when it says “evidence obtained in violation of’ law. And this is purely a question of statutory construction. Not even the Supreme Court would presume to instruct us on how our own statutes should be construed.

Were we implementing a court-made rule we would of course be free to follow the lead of the United States Supreme Court.² However, because this is a statute enacted by the Texas Legislature, we are required to interpret the language of the statute in order to implement the legislative intent in enacting it. See Boykin v. State, supra; V.T.C.A. Government Code, § 311.003; 82 C.J.S. § 322(b)(1). At first glance, the dissenters appear to be performing statutory construction, for they frequently cite to the “obtained in violation of’ law language of Article 38.23, V.AC.C.P. But they quickly abandon this pretense in favor of uncritical adherence to decisions of the United States Supreme Court. They proceed from one sentence in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), in which the Supreme Court uses the “taint” language without elaboration, viz: “But when, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Id., 467 U.S. at 448, 104 S.Ct. at 2511, 81 L.Ed.2d at 390. From this refrain the dissenters reason that inevitable discovery somehow creates a “break” in the causal connection between illegality and acquisition of evidence. But they fail to explain just how the causal connection is actually broken by the inevitable discovery doctrine. And while they practically acknowledge that the inevitable discovery doctrine is a legal fiction, they fail to explain how the language of Article 38.23 implements it. The dissenters would simply graft this doctrine upon the language of our statute, with practically no independent critical analysis at all.

Exclusionary Exception?

The dissenters obviously believe that part of the process of deciding whether evidence has been “obtained in violation of’ the Fourth Amendment is determining whether the federal exclusionary rule applies. Unless the Supreme Court would exclude the evidence pursuant to its court-made exclusionary rule, the evidence is simply not illegally obtained. This apparent belief would explain why they invoke federal exclusionary rule principles in interpreting Article 38.23(a). But if this is the dissenters’ belief, it misconstrues the nature of the federal exclusionary rule.

As we noted at the outset, the Garcia plurality observed that the inevitable discovery doctrine “is not an exception to core prohibitions of the Fourth Amendment, but only an exception to the federal exclusionary rule[.]” 829 S.W.2d at 798. Today the dissenters reject this conclusion, opining instead that the inevitable discovery doctrine is in fact an exception to core prohibitions of the Fourth Amendment. This is so, the dissenters say, “because it strikes a balance between society’s interest in deterring police misconduct and the public interest in having juries receive all probative evidence about a crime.” Dissenting op. at 278, citing Nix v. Williams, supra, 467 U.S. at 443, 104 S.Ct. at 2509, 81 L.Ed.2d at 387. In this they are demonstrably mistaken.

Throughout the majority opinion in Nix, and in all separate opinions therein, every member of the Supreme Court characterized the inevitable discovery doctrine as an exception to the exclusionary rule. Less than a month after Nix was decided, the Supreme court handed down its opinion in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). There the Court first recognized the so-called “good faith” exception to the exclusionary rule, refusing to require suppression of evidence seized under a search warrant unsupported by probable cause so long as the seizing officer reasonably relied upon the erroneous judgment of the magistrate who issued the warrant that the supporting documentation did supply the necessary probable cause. Along the way the Court made clear that the question whether the exclusionary rule should apply is quite distinct from the question whether a violation of the Fourth Amendment has occurred. Indeed, the Court characterized the search at issue in Leon as “concededly unconstitutional.” Id., 468 U.S. at 915, n. 13, 104 S.Ct. at 3416, n. 13, 82 L.Ed.2d at 693-94, n. 13. The Court went on to say:

“Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. Only the former question is currently before us, and it must be resolved by weighing the costs and benefits of preventing the use in the prosecution’s casein-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.”

468 U.S. at 906-07, 104 S.Ct. at 3412, 82 L.Ed.2d at 688 (citations and internal quotations omitted). It is clear from this treatment in Leon that the very “balance” between deterrence and the societal cost of exclusion that today’s dissenters believe justifies the conclusion that inevitable discovery is an “exception to core prohibitions of the Fourth Amendment” is instead part of the analysis for deciding whether it is an exception to the exclusionary rule. We need reach the question whether the exclusionary rule applies only after we have already concluded that a core Fourth Amendment prohibition has been transgressed. As the Supreme Court made plain in Leon:

“The wrong condemned by the Amendment is fully accomplished by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered.”

Id., 468 U.S. at 906, 104 S.Ct. at 3411-12, 82 L.Ed.2d at 687 (citations and internal quotations omitted).

Clearly, whether evidence has been illegally obtained is a different and separate question from whether an exclusionary rule should apply. Article 38.23 applies, by its express terms, whenever it is shown evidence. was “obtained in violation of’ law. Establishing the illegality does not depend upon a showing that other sovereigns would exclude the evidence. The dissenters are woefully mistaken to believe that evidence is “obtained in violation of’ the law only if the Fourth Amendment exclusionary rule would operate to exclude it.

Stare Decisis

Finally, the dissenters assert that their view is also dictated by stare decisis, citing Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981), and Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986), as if they were controlling precedents. Dissenting op. at 279-280. Neither truly is. In Vanderbilt this Court apparently decided that inevitable discovery was an exception to the federal exclusionary rule; Article 38.23 was never mentioned.³ None of the Texas cases Vanderbilt cites as having applied the principle of inevitable discovery specifically refers to Article 38.23, let alone offers any analysis of the language of Article 38.23. See Ex parte Parker, 485 S.W.2d 585 (Tex.Cr.App.1972); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969); Johnson v. State, 496 S.W.2d 72 (Tex.Cr.App.1973); McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App.1978); Noble v. State, 478 S.W.2d 83 (Tex.Cr.App.1972); Pitts v. State, 614 S.W.2d 142 (Tex.Cr.App.1981); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973). All of these eases appear to have been decided on the basis of the federal exclusionary rule. Thus, Vanderbilt and the cases it cites can hardly be considered stare decisis for the view advanced by the dissenters today.

In Bell, supra, this Court held that the attenuation of taint doctrine was applicable to Article 38.23, and may have similarly held as to the inevitable discovery doctrine.⁴ However, like the dissenters would do today, Bell seems merely to have grafted these federal exclusionary rule doctrines into Texas criminal jurisprudence, without any analysis whether the language of Article 38.23 “accommodates” them. The only opinion to conduct such an analysis thus far is Garcia. For the reasons stated in that opinion, and additional reasons set out herein, we now hold that Article 38.23 does not contemplate an inevitable discovery exception. The court of appeals did not err in this cause to fail to apply one.

Harm?

We also granted the State’s petition in order to review the contention that the court of appeals erred in failing to conduct an analysis for harm after ruling the trial court should have granted appellant’s motion to suppress evidence. Error in the admission of evidence that should have been suppressed is subject to a harm analysis under Tex. R.App.Pro., Rule 81(b)(2). We have essentially held before, and today we expressly reiterate, that a direct appellate court must conduct a Rule 81(b)(2) harm analysis sua sponte, without the necessity of prompting by the State, whenever it perceives this type of error in the record. See Weatherford v. State, 828 S.W.2d 12, 13 (Tex.Cr.App.1992).

Accordingly, we vacate the judgment of the court of appeals and remand the cause to that court for further proceedings pursuant to Rule 81(b)(2).

1 . Article 38.23(a), supra, reads:

“No evidence obtained by an officer or other person 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.”

2 . Even then we would not be bound to do so. See Heitman v. State, 815 S.W.2d 681 (Tex.Cr. App.1991).

3 . At the time Vanderbilt was decided, the United States Supreme Court had not yet adopted the inevitable discovery doctrine as an exception to the federal exclusionary rule. See Nix v. Williams, supra. However, the United States Supreme Court had held that the federal exclusionary rule was applicable to the states. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

4 . In Bell this Court concluded that the evidence seized during the first search of the appellant's residence should have been excluded as the fruit of an illegal arrest. The Court then stated that these items “clearly would have been recovered in one of the later, untainted searches of appellant’s residence. They are therefore admissible under the rationale of inevitable discovery. See Miller v. State, 667 S.W.2d 773, 778 (Tex.Cr.App.1984), and cases cited therein." Id. at 793. Although Bell mentions Article 38.23 extensively with regard to the attenuation of taint doctrine, it does not mention Article 38.23 at all in connection with the inevitable discovery doctrine. Furthermore, the Miller case appears to have been based on the federal exclusionary rule; once again, Article 38.23 was not mentioned in the opinion, and the cases cited in Miller are the same as the cases cited in Vanderbilt.