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Conroe Criminal Attorney - Case Law Summary - Massey v. State April 2023

Conroe Criminal Attorney - Brian Foley - Board Certified in Criminal Law Case Summaries


The recent Texas case of Massey v. State (No. PD-0170-22, 04/26/2023) raises important questions about the attenuation-of-the-taint doctrine in criminal cases. Specifically, the case asks whether the defendant’s commission of a new offense constitutes an intervening circumstance that attenuates the taint of police misconduct regarding evidence of another offense discovered after the alleged police misconduct.


In Massey, the defendant was initially stopped and frisked by police officers. During the frisk, the officers discovered drugs in the defendant’s pocket. However, the defendant managed to flee the scene and was not arrested. Later that same day, the defendant was arrested for a different offense. During a search incident to that arrest, officers discovered evidence of the drug offense that they had initially observed during the frisk.


The defendant argued that the evidence of the drug offense should be suppressed because it was the fruit of unlawful police conduct. The trial court denied the motion to suppress, and the defendant appealed. The court of appeals reversed, holding that the evidence of the drug offense was tainted by the earlier police misconduct.



The Texas Court of Criminal Appeals granted review and issued a plurality opinion on the attenuation-of-the-taint issue. The court held that any “new offense” may constitute an intervening circumstance, even when it leads to evidence of a different offense. The court applied the three factors for attenuation of the taint derived from Brown v. Illinois, 422 U.S. 590 (1975), and found that the defendant’s commission of a new offense was an intervening circumstance that attenuated the taint of the earlier police misconduct.

It is worth noting that the plurality opinion will not have precedential value because it was not supported by a majority of the judges on the court. However, the opinion is still an excellent presentation of the attenuation-of-the-taint doctrine when a new intervening offense is involved.


The concurrence by Judge Newell provides an alternative justification for the warrantless seizure of the drugs in this case. Judge Newell argued that the plain view doctrine provided an independent justification for the seizure of the drugs, regardless of whether the defendant’s attempt to evade the police attenuated the taint from the officer’s illegal pat-down.


Overall, the Massey case underscores the importance of the attenuation-of-the-taint doctrine in criminal cases. When evidence of a different offense is discovered subsequent to police misconduct but after the commission of a new offense by the accused, the new offense may still be an intervening circumstance that attenuates the taint. The Supreme Court may eventually weigh in on this issue, but until then, criminal defense attorneys should be prepared to argue for the application of the attenuation-of-the-taint doctrine in appropriate cases.


In Brown v. Illinois, 422 U.S. 590 (1975) the Supreme Court of the United States held that the mere giving of Miranda warnings to a suspect does not necessarily purge the taint of an unconstitutional arrest. The Court ruled that the admissibility of a confession obtained after an illegal arrest must be determined on a case-by-case basis, and that a number of factors must be considered, including the temporal proximity of the arrest to the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. The Court further held that the exclusionary rule does not automatically apply to all illegally seized evidence, and that Miranda warnings, along with other factors, might permit the admission of such evidence. Ultimately, the Court found that the defendant's statements in the case were inadmissible due to the circumstances of his arrest and subsequent questioning.


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