State v. Daugherty

Page 268

931 S.W.2d 268

The STATE of Texas, Appellee, v. Danny Joe DAUGHERTY, Appellant.

No. 0924-94.

Court of Criminal Appeals of Texas En Banc.

June 26, 1996.

Jeff Kearney, Greg Westfall, Fort Worth, for appellant.

Matthew Paul, Assistant States Attorney, Austin, Sylvia Mandel, Assistant District Attorney, Fort Worth, for state.

Before the court en banc.

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 V.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 reader 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.A.C.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...