NO.

THE STATE OF TEXAS			§           IN THE______COURT
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V.						§	OF
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JOHN DOE					§	____________COUNTY, TEXAS

DEFENDANT’S MOTION TO RECONSIDER AND BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO SUPPRESS
	To the Honorable Judge of said Court: Defendant, JOHN DOE, moves the Court to reconsider the Defendant’s Motion to Suppress which was respectfully submitted to this Court on January 11, 2002, in light of newly discovered witness testimony, and in support thereof would submit the following:
Motion to Reconsider
	On August 7, 2002, Defendant filed an Application to Take Deposition of Witness and Affidavit in Support Thereof showing the materiality of the testimony and the need to take an out of court deposition of Mr. R.T. Farley.  On the same date, the Court heard the Application, and ordered the deposition to take place on August 8, 2002.  A true and correct copy of that deposition is attached as Exhibit A.
Procedural History
	The Defendant allegedly committed the offense which is subject of Cause No. 2001-437,483 on April 9, 2001.  The Defendant was arrested as a result of this offense, and was indicted for the offense of Possession of a Controlled Substance With Intent to Deliver on September 5, 2001.
Statement of Facts
	On April 9, 2001, Officer Ron McGlone went to 1000 W. Fisher, Slaton, Texas, to  get fencing supplies from a barn located on the property (R.R. at 6).  The property located at 1000 W. Fisher, Slaton, Texas is owned by Mr. R.T. Farley (Farley Deposition at 5).  At one time Officer McGlone had Mr. Farley’s permission to use the property to keep goats, but had moved off the property and was never again given permission to use it (Farley Deposition at 7 and 8).  
	When Officer McGlone went into the barn, without permission, he looked into the feed bin and found a black tool box that aroused his suspicions so he called his Lieutenant (R.R. at 7).  The feed bin was used by the Defendant for use with his horses and Officer McGlone did not have his permission to look inside (R.R. at 15).  The Defendant did have permission to use the property from Mr. Farley (Farley Deposition at 8).  
	On that same date, April 9, 2001, the Defendant went to the property owned by Mr. Farley located at 1000 W. Fisher, Slaton, Texas (R.R. at 9).  When the Defendant arrived, he got out of his truck and went into the barn located at that address (R.R. at 10).  When he exited the barn and attempted to leave, his truck was stopped by Slaton Police Officer Ron McGlone and Lieutenant Billy Timms.  Id.  Behind the officers were DEA Special Agents Robert Robertson and Robert Bender in a separate car.  Id.
	Upon exiting his truck, the Defendant was informed by Special Agent Robertson that they had a signed consent to search the barn (R.R. at 35).  The consent was given by Officer Ron McGlone (R.R. at 7).  The Defendant was also asked by Robertson if there was anything in the barn that would be a safety concern, to which he responded in the negative(R.R. at 35).  Both DEA agents and Officer Timms then proceeded into the barn.  Id.  Upon their return, the Defendant was placed in handcuffs and informed by Special Agent Robertson that they had found what he believed to be a disassembled meth lab in the feed bin located inside the barn (R.R. at 38).   Prior to being Mirandized, the Defendant responded that it wasn’t his, and that it belonged to a guy in Lubbock (R.R. at 44).
	While Robertson, Bender and Timms were in the barn, Officer McGlone searched the passenger compartment of the Defendant’s truck (R.R. at 39).  As a result of the search, a glass dish with an open pocketknife and a white powdery residue on it were found and confiscated.  Id.
Argument
I.  The search of the feed bin located in the barn was illegal because the consent given by Officer McGlone was invalid.

	The search of the feed bin was illegal because the consent given by Officer McGlone was invalid.  Although the Defendant had permission to use the premises, Officer McGlone did not.  The owner of the property, Mr. R.T. Farley, had not given Officer McGlone permission to use the property after he had removed his goats from the premises (Farley Deposition at 7).   Because Officer McGlone did not have permission to use the property from the owner, he did not have the authority to consent to a search of the barn.
	“Voluntary consent to a search establishes that items obtained pursuant to such a search are not seized by exploitation of the illegal government action, but rather by means so attenuated from the illegal action as to dissipate the primary taint.”  Woodberry v. State, 856 S.W.2d 453, 456 (Tex. App.–Amarillo 1993, no pet. h).  A search does not violate any Federal or State constitutional protections if it is conducted pursuant to effective consent.  Id.  Proof of effective consent is not limited to proof that consent was given by the defendant, but may also include proof that consent was given by a third party who possessed “authority over or other sufficient relationship to the premises or effects sought to be inspected.”  Id.  	In Woodberry, the Amarillo Court of Appeals held that the person who consented to the search did not possess sufficient authority over the defendant’s room to give effective consent to a search.  Id. at 457.  The defendant was a suspect in an aggravated robbery of a service station.  Id. at 454.  When police questioned the defendant, he informed them that he lived in a duplex with his codefendant and his codefendant’s wife.  Id.  While two officers transported the defendant to jail, two other officers went to the residence where they met Mrs. Scott, the codefendant’s wife.  Id.
	After explaining to Mrs. Scott what had happened, the officers requested to search the premises.  Id.  Mrs. Scott consented to a search of the entire house by signing a consent to search form.  Id.  Before the officers began their search, Mrs. Scott informed them that the defendant lived in one bedroom and paid a monthly rent for the room.  Id. She also told the officers that she had access to the defendant’s room to clean and maintain it.  The door to the defendant’s room was open when the officers went inside.  Id.
	The Amarillo Court likened Mrs. Scott’s authority to that of a landlord or hotel manager.  Id. at 457.  People in that position have implied or express permission to enter the room or residence for maintenance and cleaning consistent with their duties.  Id.  At the same time, however, they have no authority to consent to a search of the premises occupied by a tenant.  Id.  “The rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’ ” Id.
	As in Woodberry, Officer McGlone, who consented to the search in this case, had no authority to give effective consent.  Although the Defendant had permission to use the premises, Officer McGlone did not.  The owner of the property, Mr. R.T. Farley, had not given Officer McGlone permission to use the property after he had removed his horses from the premises.  Because Officer McGlone did not have permission to use the property from the owner, he did not have the authority to consent to a search of the barn.
III.  The search of the vehicle was illegal because it did not fall under any exception to the warrant requirement.	
	The warrantless search of the Defendant’s truck violated his right to be free from unreasonable searches and seizures.  The search of the Defendant’s vehicle does not fall under any exception to the warrant requirement.  Without a warrant or a valid exception to the warrant requirement, the officer’s actions were illegal and the fruits of that illegality should be suppressed. 
	“It is well established that a search conducted without a warrant issued on probable cause is per se unreasonable and that the warrant requirement is subject only to a few well-delineated exceptions.”  Nastu v. State, 589 S.W.2d 434, 438 (Tex. Crim. App. 1979) (panel op.).  One exception arises when, under certain circumstances, there is probable cause to search an automobile combined with exigent circumstances which make obtaining a warrant impracticable.  Id.  “When one of these elements is not present, the warrantless search is unlawful and the evidence obtained as a result of that search must be excluded.”  Id.  
	In Nastu, the arresting officer had been investigating the appellant based on a tip from a confidential informant.  Id. at 436.  He had received information that the appellant was bringing a large quantity of heroin to his apartment for the purpose of cutting and bagging it.  Id.  The informant also told the officer that the appellant had bragged about having a machine gun, and that the informant had actually seen a machine gun in the appellant’s apartment.  Id.  The officer set up surveillance and the appellant and his wife arrived in a cab after the officer had waited for approximately three hours.  Id.  
	When the appellant arrived, the officer noticed that the informant’s description was extremely accurate.  Id.  The appellant went from the cab to a rental car and placed in the trunk the bag described by the informant as the one in which appellant normally carried the heroin.  Id.  The officer also saw the appellant carrying a pistol in a paper bag.  Id.  At that time, the officer approached the appellant and, after a struggle, was able to place him under arrest.  Id.  The appellant’s wife ran into the apartment when the struggle began.  Id.
	The Court concluded that the officer had probable cause to arrest the appellant and also probable cause to search the appellant’s car where he had apparently put the heroin.  Id. at 439.  The Court, however, also went on to consider whether there were exigent circumstances that would make obtaining a warrant impracticable.  Id.  They held that because the appellant’s wife possibly had a machine gun in the apartment, the officer was faced with sufficient exigent circumstances to justify an immediate search of the trunk of the car where he witnessed the appellant place the bag allegedly containing the contraband.  Id.  	Unlike the situation in Nastu, the officers in this case had neither probable cause nor the exigent circumstances required for an immediate search of the Defendant’s truck.  Even assuming that they did have probable cause to search the truck, there were no exigent circumstances that made acquiring a search warrant impracticable.  The Defendant’s truck was blocked in the driveway by the officers’ cars, and was therefore not in a position to be moved. 
	This search did not fall under the search incident to arrest exception to the warrant requirement either. The Court of Criminal Appeals has held that, “once an officer has probable cause to arrest, he may search the passenger compartment of a vehicle as a search incident to that arrest.”  State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999).  See Also Williams v. State, 726 S.W.2d 99 (Tex. Crim. App. 1986); New York v. Belton, 453 U.S. 454 (1981).  They further clarified that, “it is irrelevant that the arrest occurs immediately before or after the search, as long as sufficient probable cause exists for the officer to arrest before the search.”  Ballard, at 892. (emphasis added).  “[A] search conducted prior to the establishment of probable cause could never be considered valid.”  Id.
	In Ballard, a police officer received a radio dispatch concerning an eighteen wheeler driving recklessly on the highway and forcing other cars off the road.  Id. at 890.  The officer testified that he saw the truck drive on the center line and occasionally cross over the solid line on the right side of the road while he was attempting to pull the truck over.  Id. at 891.  The officer also testified that after asking the driver to move to the rear of the truck, he concluded that the driver was impaired, but that he had not yet formed an opinion as to the cause of the impairment.  Id.  A second officer arrived, and the driver was placed in a patrol car for safety reasons.  Id.  At that time, the second officer searched the cab of the truck and found prescription drugs, marijuana and a crack pipe.  Id.  The second officer then placed the driver under arrest.  Id.  
	In a one sentence order, the trial court in Ballard concluded after the suppression hearing that the arrest was valid, but that the search was not.  Id. at 892.  The Court of Appeals and the Court of Criminal Appeals held that this was a legally impossible conclusion given the facts of the case and the applicable case law.  Id. They determined that because nothing occurred between the search and the arrest that could have given rise to a finding of probable cause, then probable cause must have existed prior to the search.  Id.  The court reasoned that because probable cause to arrest existed at the time of the search, it fell under the search incident to arrest exception to the warrant requirement.  Id.  	Similar to the facts in Ballard, the officers in this case were responding to a witness report.  Unlike Ballard, however, no probable cause existed to arrest the Defendant upon the officer’s arrival at the residence.  If probable cause did arise, it would have been after the search of the barn.  The search of the Defendant’s truck, however, was completed prior to the completion of the search of the barn, and therefore prior to a finding of probable cause to arrest.  The warrantless search of the Defendant’s truck could not have been a search incident to arrest as there was not probable cause to arrest prior to the search.  The search of the truck violated the Defendant’s rights to be free from unreasonable searches and seizures because it was conducted without a warrant, and did not fall under any exception to the warrant requirement.  
IV.  The Defendant’s oral statement to Special Agent Robertson is inadmissible under article 38.22 of the Texas Code of Criminal Procedure.

	The statement made by the Defendant to Special Agent Robertson is inadmissible under article 38.22 of the Code of Criminal Procedure.  The statement was a product of custodial interrogation, was not electronically recorded, and was made prior to receiving any statutory warnings.  
	Article 38.22 of the Code of Criminal Procedure provides that oral statements made as a result of custodial interrogation are inadmissible unless electronically recorded with the statutory warnings being contained in the recording.  Tex. Code Crim. Pro. art. 38.22.   See also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996).  To invoke the protections afforded by article 38.22, the statements must have been made during “custodial interrogation.”  “If statements do not derive from custodial interrogation, the requirements of Miranda and article 38.22 do not apply.”  Gregory v. State, 56 S.W.3d 164, 174 (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d).  
	Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Id. (quoting Miranda v. Arizona, 384 U.S. 46 [1966]).  Courts are directed to determine whether a suspect is “in custody” on a case by case basis.  Id.  In making that determination, the court should consider “whether (1) an officer had probable cause to arrest a suspect and did not tell him that he was free to leave; (2) the officer manifested this knowledge to the suspect; and (3) a reasonable person in the suspect’s position would have believed he was under restraint to the degree associated with an arrest.”  Id.  “However, a formal arrest is not required.”  Id.  See also, Zavala v. State, 956 S.W.2d 715, 723 (Tex.App.–Corpus Christi 1997, no pet.).  
	The Court of Criminal Appeals held in Shiflet v. State that an oral admission made to police after failing a polygraph examination was admissible against the appellant because he was not in custody at the time he made the statement.  732 S.W.2d 622 (Tex.Crim.App. 1985).  The last time the victim in Shiflet had been seen was when she was stopped on the highway by what witnesses described as a white “County Mounty” vehicle.  Id. at 625.  The appellant, who was a sheriff’s deputy at the time, and every other officer who drove a patrol car matching the description, became a suspect of the murder.  Id.  
	The appellant voluntarily submitted to a polygraph examination which he apparently failed.  Id.  Due to the failed polygraph, the appellant was suspended with pay until they could “get this matter straightened out.”  Id.  He was told to stay at his residence, but he was never placed under formal arrest, detained, or restrained in any formal manner.  Id.  When the sheriff returned from vacation, he spoke with the appellant and suggested he take another polygraph examination.  Id.  The appellant agreed to a second test, and one was set up in Austin with a private examiner.  Id.  Two law enforcement officers picked the appellant up at his house in a police vehicle to go to Austin for the test.  Id. at 626.  Prior to the second polygraph examination, the appellant was given his Miranda warnings, and again he failed the test.  Id.  After the second failed polygraph, the appellant made an oral confession to the two officers who took him to Austin.  Id.  Later that day, the appellant signed a written admission.  Id.
	The Court found that there was ample evidence in the record that supported the conclusion that the oral admission was given voluntarily and before the appellant was accused of the crime, and therefore not in custody.  Id. at 628.  An additional part of the Court’s reasoning was that at the time the appellant made the statement, the police only had a “mere suspicion” that he had “something to do with causing the death” of the victim.  Id. at 629-630.  At the time he made the statement, the officers did not have probable cause to arrest him.  Id. at 629.
	Unlike the appellant in Shiflet, this Defendant was already placed under arrest when the statement was made.  Additionally, the arresting officers had not only focused their investigation on the Defendant, they had also made it clear that they believed he was responsible for the items they found in the barn.  Because the officers believed they had probable cause to arrest the Defendant, and did in fact arrest the Defendant, he was in custody at the time the statement was made.  The Defendant was in custody when he  responded to the questions of Special Agent Robertson.  Because he had not yet been Mirandized and there was no electronic recording made of the statement, the statement must be excluded  under article 38.22 of the Texas Code of Criminal Procedure.
	Apart from the prohibition on non-recorded oral statements given while in custody, the Supreme Court of the United States has prohibited the use of statements that stem from an illegal arrest.   See, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254 (1975), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963).  The Brown Court rejected a per se rule that Miranda warnings would break the causal chain between the illegal arrest and the statement.  Brown, at 603.  They also declined to adopt the opposite, “but for” test stating that the facts of each case would determine whether the statement was the product of an illegal arrest, and therefore inadmissible at trial.  Id.  
	They did, however say that Miranda was an important factor in determining whether the illegal arrest produced the statement, but not the only one.  Id.  Others factors are “the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.”  Id. at 603-604.  Texas courts have adopted the four Brown factors as relevant to the determination.  See, Green v. State, 615 S.W.2d 700, 708 (Tex.Crim.App. [Panel Op] 1981), and Madden v. State, 630 S.W.2d 380, 385 (Tex.App.–Amarillo 1982), aff’d, 644 S.W.2d 735 (Tex.Crim.App. 1983).  
	After determining the arrest in Madden to be illegal, the Amarillo Court of Appeals addressed the question of whether the subsequent confession was derived through exploitation of the illegal arrest, rendering it inadmissible at trial, or was “sufficiently an act of free will” that purged the primary taint of the illegal arrest.  Madden, at 384.  The court noted that the appellant was interrogated almost immediately after he was arrested, and had signed his confession less than two hours after the arrest.  Id. at 386.  The court also noted that the appellant was not taken before a magistrate, even though one would have been available at the time of the arrest.  Id.  The last fact relied upon by the court was that the appellant did not have the opportunity to consult with counsel before or during the interrogation, and that the State was unable to controvert the appellant’s contention that he had asserted his right to consult a lawyer.  Id.  Because of these facts, the court concluded that the “appellant’s confession was a fruit of an illegal arrest and its introduction into evidence was reversible error.”  Id.

	Similar to the appellant in Madden, this Defendant made a statement almost immediately after he was placed under arrest without a warrant or probable cause (R.R at 44).  He had not yet received any Miranda warnings, and was responding to an allegation made by the arresting officer (R.R at 44).  There were no intervening circumstances that would remove the taint, and the only conclusion that could be drawn from the Agent’s comment is that he was fishing for an incriminating statement.  Based on these facts, the Defendant’s statement should be held inadmissible as the fruit of an illegal arrest.	
Respectfully submitted,

By:________________________________________

CERTIFICATE OF SERVICE
	
	This is to certify that on ______________, 200__, a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress was delivered to the Criminal District Attorney of__________ County, Texas.

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EXHIBIT A