MASSEY, JAMES CALVIN v. the State of Texas

In the Court of Criminal
Appeals of Texas
══════════
No. PD-0170-22
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JAMES CALVIN MASSEY,
Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Second Court of Appeals
Tarrant County
═══════════════════════════════════════
YEARY, J., announced the judgment of the Court and filed an
opinion in which KELLER, P.J., and KEEL and SLAUGHTER, JJ., joined.
NEWELL, J., filed a concurring opinion in which HERVEY, RICHARDSON,
and SLAUGHTER, JJ., joined. WALKER and MCCLURE, JJ., dissented.

After legally detaining Appellant for lack of a proper registration
sticker on his truck, an officer conducted an investigative pat-down
MASSEY – 2

search of Appellant’s person. When Appellant forcefully resisted that
search, the officer tased and handcuffed him. The officer subsequently
discovered methamphetamine on the ground near where Appellant had
been standing.
In the trial court, Appellant filed a motion to suppress the
methamphetamine. In response to that motion, the trial court decided
that the officer’s investigative pat-down search (also known as a Terry
search) was illegal. 1 But the trial court nevertheless concluded that the
taint of the illegal Terry search was attenuated by Appellant’s
commission of the dual offenses of resisting search and evading
detention. 2 As a result, the trial court denied his motion.
The Second Court of Appeals reversed Appellant’s conviction. It
explained that Appellant’s commission of resisting search and evading
detention in response to the officer’s unlawful pat-down did not
constitute “a severe departure from the common, if regrettable, range of
responses” that should be expected. It therefore concluded that these
offenses did not “constitute intervening circumstances” for purposes of
an attenuation-of-taint analysis, under Utah v. Strieff, 579 U.S. 232

1 Whether the investigative pat-down search was valid under the
criteria announced by the United States Supreme Court in Terry v. Ohio, 392
U.S. 1 (1968), is not before us. For purposes of resolving the State’s petition for
discretionary review, we assume without deciding that it was not valid.

2 See TEX. PENAL CODE § 38.03(a) (“A person commits an offense if he
intentionally prevents or obstructs a person he knows is a peace officer . . . from
effecting . . . [a] search . . . of the actor . . . by using force against the peace
officer[.]”); id. § 38.03(b) (“It is no defense to prosecution under this section that
the . . . search was unlawful.”); id. § 38.04(a) (“A person commits an offense if
he intentionally flees from a person he knows is a peace officer . . . attempting
lawfully to . . . detain him.”).
MASSEY – 3

(2016). Massey v. State, 649 S.W.3d 500, 518 (Tex. App.—Fort Worth
2022). We granted the State’s petition for discretionary review to
examine the court of appeals’ decision. 3
I. BACKGROUND
Appellant pled guilty to possession of methamphetamine in an
amount more than one gram but less than four grams. Pursuant to a
plea agreement, he was sentenced to five years’ confinement in the
penitentiary. TEX. HEALTH & SAFETY CODE § 481.116(c). 4 Appellant
preserved his right to appeal the trial court’s ruling on his pretrial
motion to suppress the methamphetamine, which he contended was
obtained illegally because the arresting officer, among other things,

3 The Court granted the State’s first ground for review, which asked:
“When a defendant commits a new offense immediately following an illegal
search or seizure, does the new offense cease to be an intervening circumstance
attenuating taint unless it is violent and/or unforeseen?” We also granted the
State’s third ground for review: “Is an officer in a public place not in a ‘lawful
place’ under the plain view analysis merely because a Fourth Amendment
violation occurred?” But our resolution of the State’s first ground renders
discussion of the State’s third ground moot.

4 At the same time, Appellant was adjudicated guilty on a prior
indictment for a prior commission of the same offense, for which he had
previously been placed on deferred adjudication. For that prior offense,
Appellant was given another five-year sentence, and the two sentences were
ordered to run concurrently. The court of appeals held that the trial court’s
decision to proceed to adjudicate this prior conviction for possession of
methamphetamine was supported by additional evidence, other than
Appellant’s commission of the later offense. The State showed that Appellant
failed to report to his probation officer for three consecutive months. So, the
court of appeals’ holding about whether evidence obtained after the illegal pat-
down must be suppressed applies only with respect to the more recent
conviction. Massey, 649 S.W.3d at 512. We refused Appellant’s petition for
discretionary review, in which he challenged the court of appeals’ resolution of
his appeal of the prior conviction.
MASSEY – 4

conducted an illegal pat-down search.
At a hearing on Appellant’s motion to suppress, Sergeant Richard
Lukowsky was called to testify. Lukowsky worked with the Azle Police
Department, just outside of Fort Worth. In addition to his testimony, his
body-cam footage was admitted showing his interactions with Appellant
on the day of the arrest.
The evidence showed that Lukowsky was patrolling at 11 a.m., on
February 16, 2020, when he spotted a pickup truck without a proper
registration sticker. Lukowsky followed the truck into a gas
station/convenience store parking lot. By the time Lukowsky caught up
with Appellant, Appellant was already out of his truck, near the entry
to the store.
Lukowsky asked Appellant “to step over to where [Lukowsky]
was.” Appellant complied and walked over. Appellant then asked what
was going on, and Lukowsky told Appellant that “his registration was
out” on his truck. 5 With Appellant’s permission, Lukowsky retrieved
Appellant’s wallet from the truck and handed it to Appellant, who in
turn handed his driver’s license back to Lukowsky.
According to Lukowsky, in the course of that exchange, he noticed
that Appellant’s hands were shaking more than what he considered

5 At first, Lukowsky testified that Appellant’s truck did not have a
registration sticker. But, as explained earlier, at another point in his
testimony, he claimed that he informed Appellant that “his registration was
out” on his truck. Whether the registration sticker was entirely missing or
merely expired makes no difference to the issues we address in this opinion.
Suffice it to say that, for the sake of this opinion, we operate on the
presumption that Appellant’s initial detention was legal based on the status of
his truck’s registration.
MASSEY – 5

normal for such an encounter, and Appellant otherwise appeared very
nervous. Knowing that this was a “high drug area,” that narcotics
arrests had been made at this location on “several” occasions, and that
he was by himself, Lukowsky instructed Appellant “to turn around so
[he] could pat [Appellant] down just for [Lukowsky’s] safety.”
At first, Appellant seemed ready to comply, turning around and
raising his arms slightly at the elbow. But when Lukowsky began to pat
on the outside of the right-hand pocket of Appellant’s cargo shorts,
Appellant reached down toward his left-hand pocket. Lukowsky grabbed
Appellant’s hand and ordered him not to go into his pocket. But
Appellant persisted in moving toward the pocket, “ripped” away from
Lukowsky’s hand, 6 and turned around to face Lukowsky, while slowly
backing away from him.
At this point, Lukowsky called for backup and drew his weapon,
intending to handcuff Appellant. Appellant told Lukowsky “something
along the lines” of “I’m not going to go with you,” and “you’re just going
to have to shoot me.” Eventually Appellant approached and began to
move around an air pump machine, which he grasped in such a way that
Lukowsky could not see his left hand.
At that point, an off-duty Fort Worth police officer arrived and
tried to assist Lukowsky in taking Appellant into custody. Lukowsky
ordered Appellant to comply several times, and after he then warned

6 Lukowsky used the descriptor “ripped” in his testimony. From the
body-cam video, the trial court gleaned that Appellant “resisted the search by
tensing his left arm, pulling away from Sgt. Lukowsky, and physically
grabbing Sgt. Lukowsky’s left arm.” Trial Court’s Findings of Fact and
Conclusions of Law at 4. Our review of the body-cam footage bears this
description out.
MASSEY – 6

Appellant and the off-duty officer that he was about to tase Appellant,
Lukowsky carried through on his warning and tased Appellant, who
then fell to the ground. With the continuing help of the off-duty Fort
Worth officer, Lukowsky handcuffed Appellant.
Lukowsky then discovered a bag of methamphetamine on the
ground next to the air pump machine. As Lukowsky’s body-cam footage
confirms, the bag had not been there only moments before. Lukowsky
believed that Appellant had retrieved it from his left-hand pocket
unseen and then dropped it as a result of being tased.
In its written findings of fact and conclusions of law, the trial
court found that the initial detention of Appellant was justified—
because of the absence of a valid registration sticker on Appellant’s
truck. In spite of that, the court found that Lukowsky’s initial Terry pat-
down search of Appellant was illegal because he lacked reasonable
suspicion to justify it. But the trial court also found that Appellant’s
conduct in response to Lukowsky’s illegal Terry pat-down search
constituted the offenses of: (1) resisting search, and (2) evading
detention. And as a result, the trial court concluded, the “taint” from
the primary misconduct was effectively “purged” by Appellant’s
commission of the new offenses.
The court of appeals rejected the trial court’s conclusions. Massey,
649 S.W.3d at 516−18. Citing court opinions from other jurisdictions,
the court of appeals essentially held that “milder cases of resisting arrest
[do] not constitute intervening circumstances” for purposes of an
attenuation of taint analysis. Id. at 518. The court explained that
“[o]ther courts have held that simply running away from the detaining
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officers or attempting to dispose of evidence will not necessarily
dissipate the taint.” Id. To hold otherwise, the court observed, would
simply encourage the police to engage in improprieties in the hope that
a suspect’s adverse reaction (so long as it was not too extreme) would
generate incriminating evidence. Id. Having found no intervening
circumstance, the court of appeals then emphasized the temporal
proximity of the discovery of the evidence of the primary misconduct
over the purposefulness and flagrancy of the police misconduct and
concluded that the taint was not attenuated. Id. (citing State v. Jackson,
464 S.W.3d 724, 732 (Tex. Crim. App. 2015)).
II. ANALYSIS
A. Attenuation of Taint
The federal exclusionary rule requires the suppression of
evidence obtained either directly or derivatively (“fruit of the poisonous
tree”) from police conduct that violates the Fourth Amendment. Strieff,
579 U.S. at 237. But whether the discovery of evidence was the “fruit” of
Fourth Amendment misconduct is not a strictly “but/for” inquiry.
Jackson, 464 S.W.3d at 731. Suppression of evidence is a “last resort,”
not a “first impulse.” State v. Mazuca, 375 S.W.3d 294, 300 (Tex. Crim.
App. 2012) (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)).
Accordingly, the United States Supreme Court has identified exceptions
to the exclusionary rule, one of which is the attenuation-of-taint
doctrine. Strieff, 579 U.S. at 238.
Under the attenuation-of-taint doctrine, “[e]vidence is admissible
when the connection between unconstitutional police conduct and the
discovery of evidence is remote or has been interrupted by some
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intervening circumstance, so that ‘the interest protected by the
constitutional guarantee that has been violated would not be served by
suppression of the evidence obtained.’” Id. (quoting Hudson, 547 U.S. at
593). To determine whether this connection is sufficiently “remote or has
been interrupted,” the United States Supreme Court has required courts
to consider three factors known as the Brown factors: (1) the temporal
proximity between the misconduct and discovery of the evidence; (2) the
presence of any intervening circumstances; and (3), the purpose and
flagrancy of the police misconduct. Id. at 239 (quoting Brown v. Illinois,
422 U.S. 590, 603−04 (1975)). Also, this Court said, in Mazuca, that
either the first factor (“temporal proximity”) or the third factor (“purpose
and flagrancy”) will take on greater significance in any given case,
depending upon whether the second factor (any “intervening
circumstances”) is present. Jackson, 464 S.W.3d at 732 (quoting
Mazuca, 375 S.W.3d at 306−07). So, when there is an intervening
circumstance as contemplated by Brown, the Brown inquiry emphasizes
the third factor—the purpose and flagrancy of the police misconduct. Id.,
at 733 (“[G]iven such an intervening circumstance, Mazuca dictates that
a reviewing court should emphasize the third Brown factor, which asks
whether the police purposefully and flagrantly disregarded Appellee’s
Fourth Amendment rights.”).
B. A “New Offense” as an Intervening Circumstance

Many courts, including this Court, have recognized that “new
offenses” committed by a person who is the focus of alleged police
misconduct are necessarily intervening circumstances as contemplated
by Brown. In addition, many of those courts seem to have concluded that
MASSEY – 9

the commission of a new offense, when considered as an intervening
circumstance, will almost invariably outweigh both of the other two
Brown factors and establish a per se attenuation of taint, at least with
respect to evidence of the new offense itself. Thus, if a defendant
commits a new offense in response to police misconduct, the police
misconduct will almost never result in suppression of evidence of the
new offense that was committed in reaction or in response to it.
In State v. Iduarte, 268 S.W.3d 544 (Tex. Crim. App. 2008), for
example, a suspect pulled a gun on a police officer who had entered his
apartment without a warrant during a domestic-dispute call. The trial
court found that “the officer’s actions overstepped the limits of his
authority.” Although the new offense would likely not have occurred “but
for” the alleged police misconduct, this Court decided that acquisition of
evidence pertaining to this new aggravated assault “was not causally
connected to the officer’s allegedly illegal entry.” Id. at 551. The Court
explained:
[The exclusionary rule] does not . . . provide limitless
protection to one who chooses to react illegally to an
unlawful act by a state agent. If that were allowed, the
genuine protection that the exclusionary rule provides
would be undermined. Here, evidence of the charged
offense did not exist before the officer’s challenged actions
because the charged offense had not yet occurred; the
evidence showed a subsequent independent criminal act
that was not causally connected to an unlawful entry by a
state agent. Therefore, the exclusionary rule does not apply
to this case.

Id. The Court essentially treated the suspect’s illegal response to the
police officer’s alleged misconduct as an intervening circumstance that
MASSEY – 10

was sufficient, by itself, to break the causal connection—even without
reference to the other two Brown factors. 7
Other courts, both before and since this Court decided Iduarte,
have ruled similarly, that evidence of the commission of an offense in
response to unconstitutional police conduct will not be suppressed under
the exclusionary rule. 8 Like this Court in Iduarte, these courts seem to
have reached that conclusion without explicitly considering any Brown
factors other than the second one—“presence-of-intervening-
circumstances.” 9 They almost seem to treat that intervening

7 See George E. Dix & John M. Schmolesky, 40 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 7:59, at 383 (3d ed. 2011) (explaining
that, “[i]f a defendant is charged with criminal activity committed in the wake
of unlawful law enforcement behavior, several courts have held that the
defendant’s criminal conduct itself constitutes a significant intervening
circumstance in determining whether the taint of the officers’ illegal conduct
tainted the evidence of the defendant’s criminal act. That criminal conduct may
even be itself sufficient to automatically attenuate the taint.”); see also id., at
386 (suggesting, near the end of Section 7:59, that this understanding was
adopted by this Court in Iduarte).

8 E.g., People v. Villarreal, 152 Ill.2d 368, 380, 604 N.E.2d 923, 929
(1992); State v. Mierz, 127 Wash.2d 460, 471−75, 901 P.2d 286, 291−94 (1995);
United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982); State v.
Brocuglio, 264 Conn. 778, 790, 826 A.2d 145, 153 (2003); United States v.
Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005); State v. Herrerra, 211 N.J. 308,
336, 48 A.3d 1009, 1026 (2012); State v. Suppah, 358 Or. 565, 577, 369 P.3d
1108, 1115 (2016); People v. Tomaske, 440 P.3d 444, 449 (Colo. 2019).

9 See, e.g., United States v. Bailey, 691 F.2d at 1017 (“Unlike the
situation where in response to unlawful police action the defendant merely
reveals a crime that already has been or is being committed, extending the
fruits doctrine to immunize a defendant from arrest for new crimes gives a
defendant an intolerable carte blanche to commit further criminal acts so long
as they are sufficiently connected to the chain of causation started by the police
misconduct. This result is too far reaching and too high a price for society to
pay in order to deter police misconduct.”); State v. Mierz, 127 Wash.2d at 475,
MASSEY – 11

circumstance offense as all-by-itself determinative of whether the
exclusionary rule applies. 10
C. A “New Offense” as an Intervening Circumstance Exposing a
“Different Offense”

Of course, the question in this case is not whether to suppress
evidence of Appellant’s new offenses of resisting arrest and evading
detention. 11 Insofar as we know, Appellant has not even been formally
charged with either of those offenses. Instead, the question is whether

901 P.2d at 293 (“Encouraging citizens to test their beliefs through force simply
returns us to a system of trial by combat. The proper location for dealing with
such issues in a civilized society is in a court of law.”); see also, e.g., Martinez
v. State, 91 S.W.3d 331, 340 (Tex. Crim. App. 2002) (“Appellee’s argument [that
failure to give statutorily required warnings prior to his grand jury testimony
should result in exclusion of evidence that he perjured himself], carried to its
extreme logical conclusion, would provide legal protection to the murderer of a
police officer, who proves that the officer detained him without articulable
suspicion prior to the murder.”).

10 But see State v. Tapia, 414 P.3d 332, 340−41 (N.M. 2018) (applying a
full-blown Brown attenuation-of-taint analysis to conclude that the new
offense of signing a false name on a traffic citation did not necessitate excluding
evidence of that forgery on the ground that the initial traffic stop had been
unlawful).

11 There are a total of four offenses to be considered in this case: 1) the
initial offense of driving without a valid registration sticker; the subsequent
offenses of 2) resisting search and 3) evading detention; and 4) the ultimately
discovered offense of possession of methamphetamine. Under Iduarte,
exclusion of evidence of the offenses of 2) resisting search and 3) evading
detention would not be required even if there was police misconduct preceding
those offenses, under the “new offenses” rationale. But that does not
necessarily resolve the question of whether evidence of 4) methamphetamine
possession—an offense that was already underway even before the traffic stop
occurred, but which did not come to light until after Appellant had committed
offenses 2) and 3)—may also be admitted absent consideration of the full
panoply of Brown factors.
MASSEY – 12

Appellant’s commission of those new offenses constitutes an intervening
circumstance under Brown, so as to attenuate the taint of police
misconduct with regard to evidence of still another, different offense—
possession of a controlled substance—discovered subsequent to the
alleged police misconduct.
In similar circumstances, some courts have seemed to consider
the new offense—committed in response to the original alleged police
misconduct—as independently determinative in favor of attenuation.
Those courts appear to conclude that the new offense brakes the causal
connection, not only between the alleged police misconduct and the new
offense committed in response to it, but also between the misconduct
and the subsequent discovery of evidence of even another, different
offense. 12 But we ultimately conclude that, at least until the United

12 See United States v. Bailey, 691 F.2d at 1017−18 (treating, in a drug
possession case, the appellant’s arrest for unlawfully fleeing detention as an
intervening circumstance that justified a search incident to that arrest, and
finding that the offense purged any taint from the initial illegal detention
itself, without reference to any other Brown factor); United States v. Sprinkle,
106 F.3d 613, 619 (4th Cir. 1997) (rejecting, in an illegal possession of a firearm
case, the appellant’s argument that the initial unlawful stop should result in
suppression of the gun he subsequently drew on the officers because it
“overlook[ed] whether his own illegal acts after the initial stop [would] trigger
an exception to the exclusionary rule of the ‘fruit of the poisonous tree’
doctrine,” and concluding that such an exception would apply, while making
no reference to the particular Brown factors); United States v. Sledge, 460 F.3d
963, 966 (8th Cir. 2006) (deciding that evidence of cocaine possession is not
subject to suppression when the defendant illegally fled from an arguably
illegal detention, without any reference to the Brown factors); Kavanaugh v.
Commonwealth, 427 S.W.3d 178, 181 (Ky. 2014) (deciding that evidence of
cocaine possession following an alleged illegal Terry stop was not subject to
suppression when the appellant assaulted the officer before the cocaine was
discovered, and concluding that the intervening assault attenuated the taint
of the illegal Terry stop without reference to other Brown factors); Wilson v.
United States, 102 A.3d 751, 753−54 (D.C.C.A. 2014) (deciding, in a possession
MASSEY – 13

States Supreme Court says otherwise, the admissibility of this category
of evidence—of a still different offense—should be considered with
continued reference to all three of the Brown factors. This approach, we
think, is to be preferred, since it considers the temporal proximity of the
discovery of the evidence to the original misconduct, the intervening
circumstance of the new offense, and also the purpose and flagrancy of
the primary misconduct leading to the discovery of the “different
offense” evidence.
D. Addressing The Court of Appeals’ View
In refusing to regard Appellant’s offenses here as an intervening
circumstance at all, the court of appeals observed:
[I]f the crime is petty and relatively predictable as a
product of an unlawful detention or search, the evidence
revealed is better viewed as an extended derivation of the
illegal police action. “Incriminating admissions and
attempts to dispose of incriminating evidence are common
and predictable consequences of illegal arrests and
searches, and thus to admit such evidence would encourage
such Fourth Amendment violations in future cases.
LaFave, Crimes committed in response to illegal arrest or
search as a fruit, 6 Search & Seizure § 11.4(j) (6th ed.).

Massey, 649 S.W.3d at 517−18. But we find it anomalous to, on the one
hand, treat a new offense—however petty or predictable—as a nearly
invariably determinative intervening circumstance in weighing the
admissibility of evidence of the new offense itself, but then, on the other

of cocaine prosecution, that the cocaine was not subject to suppression after
the appellant resisted what he claimed to be an unlawful arrest since his
resistance constituted an intervening offense which, by itself, purged the taint
of any misconduct).
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hand, to refuse to treat the new offense as an intervening circumstance
at all with regard to evidence showing the commission of another,
different offense, unless the new offense is serious or unpredictable.
The way we see it, when evidence pertaining to a different offense
is discovered subsequent to some police misconduct, but after the
commission of a new offense by the accused, the new offense is still an
intervening circumstance—regardless of its seriousness or
predictability. The reasons that would justify an almost invariable rule
for cases involving only evidence of the new offense itself—committed in
response to police misconduct—do not apply, at least not as firmly, when
the evidence discovered relates to a different offense. Therefore, we
conclude that a faithful deference to the United States Supreme Court’s
decision in Brown requires this Court, under these circumstances, to
conduct an attenuation-of-taint analysis, giving full consideration to all
three of the Brown factors, but with particular emphasis placed on the
third factor, which asks how purposeful or flagrant the police
misconduct may have been. See Mazuca, 375 S.W.3d at 306−07 (“Under
this scenario [where there is an intervening circumstance], the
intervening circumstance is a necessary, but never, by itself, wholly
determinative factor in the attenuation calculation, and the
purposefulness and/or flagrancy of the police misconduct . . . becomes of
vital importance.”).
This approach more effectively serves the core exclusionary rule
interest. It will deter police from deliberately engaging in misconduct in
the manifest hope of provoking some illegal response, only to exploit that
response by conducting an otherwise unwarranted search or seizure for
MASSEY – 15

the purpose of uncovering evidence of still different offenses unrelated
to the suspect’s illegal response. And it also fits in well with the analyses
that this Court undertook in Jackson and Mazuca.
In Jackson, police had installed an illegal global positioning
system (GPS) tracking device on the defendant’s car. 464 S.W.3d at 727.
Prior to discovering drugs in the trunk of that car, however, the police
had determined by radar that Jackson was speeding, 13 and they pulled
him over for that (non-full-custodial-arrestable) offense. Id. The Court
held that the independent radar verification of the speeding offense
constituted an intervening circumstance leading up to the discovery of
the evidence and then proceeded (consistently with Mazuca) to inquire
into the purpose and flagrancy of the unlawful GPS device. Id. at
732−33. The Court did not stop to consider the relative seriousness of
the intervening offense.
Also, in Mazuca itself, the Court determined that the discovery of
outstanding arrest warrants for the defendant following an illegal traffic
detention constituted an intervening circumstance. 375 S.W.3d at 308.
The Court made that determination without ever asking how serious the
offenses underlying the outstanding arrest warrants might have been.
Instead, the Court’s primary focus became, in light of the presence of the
intervening circumstance, how purposeful and flagrant the illegal traffic
stop—the primary misconduct—had been. Id. at 308−10.
None of the cases from other jurisdictions—that the court of
appeals cited as persuasive authority—compellingly support its

13 The Court has said that a motorist pulled over for speeding is not
ordinarily susceptible to a full custodial arrest for that offense. Azeez v. State,
248 S.W.3d 182, 189−90 (Tex. Crim. App. 2008).
MASSEY – 16

preferred approach. Massey, 649 S.W.3d at 517−18. Although they
discuss the “seriousness” of the “new offense” as a consideration in the
intervening circumstance factor, none clearly hold that a “new offense”
will only be regarded as an intervening circumstance if it is sufficiently
serious. Almost all of them appear to conduct a full-blown Brown
analysis, referencing all three factors. None clearly support the
proposition that, if the “new offense” is not serious, or is a predictable
response to the primary misconduct, then it becomes unnecessary to
consider and weigh the third Brown factor—the purposefulness and
flagrancy of the police misconduct. 14 And to the extent, if any, that they
might arguably support such a proposition, they are inconsistent with
Mazuca and Jackson.
In short, we agree with the State that the court of appeals erred
to conclude that, because Appellant’s new offenses were both “petty” and
“relatively predictable” as a reaction to Lukowsky’s misconduct, they
simply do not count as intervening circumstances in the Brown
attenuation-of-taint analysis. Massey, 649 S.W.3d at 517−18. The court
of appeals should have acknowledged that any “new offense” may
constitute an intervening circumstance, even when it leads to evidence
of some offense other than, and different from, the “new offense” itself.
And as a result, the court of appeals should have focused its attention
less on the first “temporal proximity” Brown factor and more on the third
“purpose-and-flagrancy” Brown factor. See Jackson, 464 S.W.3d at 732

14See State v. Alexander, 157 Vt. 60, 595 A.2d 282 (1991); United States
v. Brodie, 742 F.3d 1058 (D.C. Cir. 2014); Johnson v. United States, 253 A.3d
1050, 1058 (D.C. 2021); State v. Owens, 992 N.E.2d 939, 942−43 (Ind. Ct. App.
2013); and Thornton v. State, 465 Md. 122, 159−61, 214 A.3d 34, 56−57 (2019).
MASSEY – 17

(quoting Mazuca, 375 S.W.3d at 306−07). It is to that proper analysis
that we now turn.
E. Application of Law to the Facts of this Case
It is certainly true, as the court of appeals concluded, that the
temporal proximity Brown factor in this case “strongly favors
suppression[.]” Massey, 649 S.W.3d at 518. Lukowsky discovered the
contraband on the ground, where Appellant had apparently dropped it
within about two and a half minutes (according to the body-cam video)
from when the frisk began. When there is an intervening circumstance,
the purposefulness and flagrancy of the police misconduct becomes
vitally important. Jackson, 464 S.W.3d at 732. Here, Appellant’s
resistance to the Terry search was a new offense that constituted an
intervening circumstance, shifting the proper emphasis onto the third
Brown factor—the purposefulness and flagrancy of the misconduct. Id.
When Appellant pulled away from Lukowsky and grabbed his left
arm to avoid the Terry search, he at least committed a resisting search
offense under Section 38.03(a) of the Texas Penal Code. TEX. PENAL
CODE § 38.03(a). There is no question that he intentionally used force to
prevent Lukowsky, whom he knew to be a peace officer, from effecting a
search of his person. See Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim.
App. 2016) (“Finley used force against the officers by pulling against the
officers’ force.”). Also, the fact that the Terry search was deemed to be
unlawful is not a defense for purposes of this statutory offense. See TEX.
PENAL CODE § 38.03(b) (“It is no defense to prosecution under this
section that the arrest or search was unlawful.”). We conclude that this
“new offense” constituted an intervening circumstance, and we focus our
MASSEY – 18

inquiry primarily on the purposefulness and flagrancy of Lukowsky’s
misconduct in perpetrating the Terry search to begin with.
There is no suggestion in the record that the Terry search was
pretextual—a deliberate ploy on Lukowsky’s part to subvert Appellant’s
Fourth Amendment rights for the purpose of conducting a random
search for evidence of an offense beyond the original offense for which
he was detained: driving an unregistered vehicle. 15 From his testimony
it appears that Lukowsky was genuinely concerned for his own safety.
He was, after all, operating by himself, in a high crime area, and
Appellant seemed to him to be more nervous than the circumstances
warranted. That his subjective concern was not (we have assumed, for
purposes of discretionary review) ultimately found to be borne out by
sufficiently objective facts to justify even a limited Terry search for
Fourth Amendment purposes does not make it any less sincere.
Appellant’s “new offense” of resisting the search was an
intervening circumstance. Because we also find no evidence that
Lukowsky purposefully or flagrantly flouted Appellant’s Fourth
Amendment rights, we conclude that any taint from the illegal Terry
pat-down search was attenuated. The trial court properly denied
Appellant’s motion to suppress the methamphetamine.
III. CONCLUSION
Accordingly, we reverse the judgment of the court of appeals and

15 See TEX. TRANSP. CODE § 502.473(a) (“A person commits an offense if
the person operates on a public highway during a registration period a motor
vehicle that does not properly display the registration insignia issued by the
department that establishes that the license plates have been validated for the
period.”).
MASSEY – 19

affirm the trial court’s judgment.

DELIVERED: April 26, 2023
PUBLISH