morning about this case right now is to be mindful of what is actually before the court mr hopkins has already established that he was arrested without probable cause in violation of the fourth amendment that issue was decided and decided three over three years ago and hopkins won in the appellate court there are no grounds for revisiting that today or advancing a new factual scenario about when mr hopkins was actually arrested as  the facts from the attenuation hearing are actually very clear after the illegal arrest the police interrogated hopkins repeatedly and he refused to implicate himself in the hajj act attempted robbery until being confronted with sam statement the interrogation officers lied to mr hopkins telling them they in turn he no longer needed him to confess suggesting that he could be convicted based upon sam's statement but which is of course false under bruton co statements are not admissible so the question is this confrontation an intervening cause that breaks the the chain of causation between the illegal arrest and his statement no this is interrogation this is an exploitation of the illegal arrest this is not something else this is convincing a suspect that continued denial is hopeless is a recognized method of interrogation and in this case is an exploitation of the illegal arrest now culp the us supreme court based a similar situation where the defendant had been arrested illegally and confronted with his brother's inculpatory statement and the court found that that was not this goes also back to taylor where the us supreme court found that the defendant had been illegally arrested and confronted him with fingerprints on some items that were supposedly involved in the robbery for which he was arrested again this confrontation with evidence was not in attenuating fact and franklin this court found that a polygraph test in a confrontation with the results of that polygraph test was not attenuating it because it was a form of interrogation and exploitation of the illegal arrest franklin's also actually useful in this case and relevant to this case in another regard in that the state in franklin like the state here attempt to change its factual theory about when the defendant was arrested and the franklin court refused them allowed refused to allow them to do so and also we have johnson which were he was confronted with but with sticks results again to get him to to get the defendant to confess to convince  that it was useless to continue to deny involvement and again this court found that it was not attenuated interrogation is not attenuation no matter what method the police use a polygraph or a confrontation with evidence doesn't break a causal chain with wien the arrest and the state and here the record is clear the only supposedly intervening event was the confrontation with sampson statement which is not intervening it doesn't break the causation it is an exploitation of the illegal arrest therefore the appellate court erred in finding attenuation but assuming that some sort of forms of interrogation can be used police misconduct by depriving the state of the fruits of that misconduct so essentially if you allow illegally obtained evidence to establish the admissibility of show that the statement was legal because he pled guilty and never challenged the statement so that a mysterious the fact that the defendant was confronted with sampson statement would require the state to go back to him prove that the sampson indicate that his statement was valid only six it only indicates that you know for his own reasons he determined that you know to to take this plea bargain was better than to risk whatever outcomes from a motion hearing or a trial so much of their standing is actually it was mentioned in the appellate court and it and the state raises the question of standing but standing is actually only an issue when you have a defendant whose only rights have not been violated the jains court the jains case that this court decided involved a defendant who was arrested legally and then attempted to point to the illegality of codefendant statement as grounds for suppressing his own statement and this court said that because the defendant himself had no constitutional violation the point to have his own rights that he did not have standing to litigate these other matters now in this case obviously mr hopkins has established that he was illegally arrested so then the burden shifts to the state to show the illegally acquired evidence that supposedly atten mr hopkins taking advantage of of another constitutional violation by somebody else it is a matter of his own rights were violated and now for the purposes of the exclusionary rule which i just heard this sort of misconduct the state can only use legally acquired evidence now there's a long line of appellate court cases there's a very there's austin there's clay there's these other cases where you actually have already have findings that the  statement was illegally obtained and the appellate court has said repeatedly that because the statement was the codefendant statement was illegally obtained it cannot be used for atten sentence now the distinguishing factor here the only i think it's a distinction without a difference is that we don't have that finding yet rather than in these other cases where there was some finding where like in in clay there was a finding that the codefendant had been beaten up to give his statement and then the state wanted to use that statement that codefendant statement that was found to be co illegality of one statement by the use of an illegal evidence from another case now here if sampson was legally arrested and his  statement was legally acquired which we don't know it is the argument has been made at least in the briefs that sampson can be viewed as somebody who was arrested without probable cause because he was arrested the same time don't have enough of a record at that point but we do know a number of things we do know that sampson was interrogated by the same detectives who interrogated hopkins we do know that he was brought to  this scene by his arresting officer which was heard the ak so essentially it's the state could you prove that his statement was legally acquired to two hopkin i mean i think you said this court doesn't have jurisdiction to hear it which i'm not so sure we don't have jurisdiction here the weather is properly before us is another situation this court can affirm on any basis so you you com attenuation obviously this quote is the judge of its own jurisdiction and there certainly have been cases in the past where the court has reviewed judgments from previous appeals involving the same case  cause i mean the state would say there's no reason to go to a ten if if the arrest was legal you never get to attenuation but here i think this is the concern regarding finality of judgments of not having the sort of you know that that as as litigation proceeds you presume that the issue is actually in there that something is actually  accomplished but here if we do and i think there are good reasons here for not going back to the to the probable cause finding because it sort of displays of the risks of keeping ivory issue open wide all the time as there are  and in this case waiter in a family not only not filing a petition for leave to appeal to this court from hopkins one is they perhaps that was their their thinking in this case but again do you want do you want to encourage that do you want to encourage you know from from their point of view the probable cause i think actually one of the things in this case that really shows some of the risks of allowing this sort of this sort of procedure to progress is that the state now because it wants to reopen the probable cause issue also wants to reopen not just hopkins one but also the the trial court's findings from the emotion aquash hearing it's taking issue with the trial court's finding that mr hopkins was arrested when he was ordered from the car patted down and was handcuffed they want the court to set aside that factual finding by the by the circuit court from the emotion aquash hearing and find that he wasn't actually arrested until late here until after the show up so you know keeping this matter i guess in play means that we now we we give the litigants this time to i guess flip flop on their theories of the case getting it turns out we've made not only is hopkins to kind of pointless hopkins one was he was even eroni asli involved resolve so i think letting them revisit that at this point is as fundamentally contrary to the whole idea that as litigation first see there should be some things that are resolved i mean things moved to a very narrow point in this case where you had to rema and they also stated that there could be other things that the record did not reveal that you know related matters that would be relevant to the question here with one specific and without raising the entire phenomenally were specifically  e additional discussion on the question of flagrant police misconduct because it is related to the intervening cause that you look at the police conduct as a whole particularly in this case where you have the police pretending with mr hawkins that they don't need him taken fast because they have samson statement because they have him into sampson statement now this is related to the entire sort of  of the police misconduct so we felt that since it was so closely related to that one particular fact there that this court should take a look at it in its entirety but we certainly are not attempting to open up  matters that were decided in coffins one because i mean what the court disposed of options one we had a we had excessive sentencing argument we had a prosecutorial misconduct argument we certainly weren't trying to reopen those this time so frankly this court should find that these matters have been fully previously litigated have previously decided and sued certainly feeling that the state now completely change its position regarding the the motion to quash hearing the the state below had argued that mr hopkins was arrested when he was taken from the vehicle and handcuffed  that that is what the circuit court found in fact the the prosecution in this case even introduced the results of the show up now they're saying he wasn't arrested until after the shovel why didn't they resume introduce the results of the show up at the motion to quash and clearly that would have been relevant to probable cause but they didn't even try to introduce it at that hearing and again they argued in the appellate court that he was arrested at that point and did not argue this this new theory that bringing before the court now so i think the the fact of keeping things open indefinitely really poses the serious risk that as the litigation proceeds instead of getting narrower you're providing the both parties really with the opportunity to to just refine new theories come up with new facts and essentially indicating that the case hasn't made any progress by the time it gets to this port december of two thousand the victim beverly hey jack and her two children while taking a walk with their dog when at that point the defendant and the core defendant jeffrey sampson approached them armed with a gun and demanded money from her after the attempted to rob her the victim quickly flagged down a passing motorist and that passing motorists called nine one one within two minutes of receiving a radio dispatch including description several blocks for those several blocks all he saw was one parked car with its headlights on and that car was parked within one clock of the reported robbery he did not see one other person in th area now offered o'neill decided to pull off alongside that car he waited for approximately twenty seconds looked inside the car you could tell that there was a person inside the car could not determine whether or not that person was male or officer turned left this parked car turned in the opposite direction away from the officer as they were both making their turns of certainly mate eye contact with the driver and the driver of that car described the offenders as armed officer only approached the car with his weapon strong with his weapon drawn and ordered the defendant out of the car he noticed when the defendant got out of the car that he had fresh snow on his shoes in on his pants legs up his mid k o he put his gun away before conducting a pat down search during the pat down he know that the defendant was breathing heavily and that his heart was beating rapidly  and that that is an explanation as to why the defendant's heart was beating rapidly it also could be his heart being rapidly could also be explained by the fact that he had just run away from the victim and run into the car and we're seeing that that corroborates the victim's account of the considering the totality of this sevenths certainly probable cause was the state i wish after the show up identification a defendant by the victim now the trial court upon hearing this evidence denied the defendant i'm sorry was when was he handcuffed after after they had conducted the pat down search and everything like that there was a brief struggle with the officer and then after that then they were able to handcuff the defend it at the time that he was detained were saying he was he was not aggressive that he were saying that he was not under arrest that that time he was meeting being detained in order for the victim to it to appear at the seen and they were done did a show up yes that's correct would you like to address where you were because the the again what we're asking this court to look at is just one additional factor that was on based on the evidence that was introduced at the at the trial level eighty three eighteen feet and they say that this court has jurisdiction here in the matter since the people of the apple a they're entitled to raise any claim really not whether we have jurisdiction but whether we should one that's one of the questions that is raised in this issue we can and we we are we are raising an issue that was based on the record before this court and with this court may dress any case and the issue in this case because it constitutes to know will review this issue and the the facts that regarding the show of identification is based on evidence that was introduced at the trial level you have one more question i'm sure  arrest and suppress evidence and they found that the officer had reasonable suspicion that the defendant had committed a crime at the time that the stop was made the trial court also found the probable cause was established after the defendant had exited the car defendant also filed a motion to suppress statement in this case alleging that it was a result of his confession was a change as a result of both physical and mental coersion this motion was denied and the defendant has never contested the trial court's ruling on that motion defendant likewise falso filed a motion to suppress his identification trial court tonight this motion specifically finding that there is no indication that there was any suggestive conduct by any of the officers and that the officer actions were appropriate defendant has never contested the trial court's ruling on this motion for the first time on appeal and how can one defendant challenge the trial court's finding of probable cause the appellate court determined police had a sufficient basis to conduct a cherry stop at that no probable cause existed at the time the defendant was initially arrested however the court the court also found the presence of three other the four attenuation factors and remanded this cause to determine the existence of one factor the presence of intervening circumstances after the trial court concluded on remand that the state has shown the presence of intervening circumstances defendant appealed this decision and  each of the attenuation factors have been established in brown the united states supreme court identified for factors to consider when determining whether a defendant subsequent confession following an illegal arrest was sufficiently attenuated from an illegal arrest consideration of these other issues as a result of the fact that it was only sent back on remand for consideration of the intervening in the presence of intervene in circumstances as far as the second factor the amount of time between the defendant's arrest and a subsequent statement certainly the passage of six hours was a sufficient amount of time for it to dissipate the taint of the defendant's a legit legal arrest now a court that sent back on re man to determine the presence of intervene in circumstances for this court for this problem the courts have focused their attention on whether the confession was an act of free will sufficient to purge the change of the illegal arrest pursuant to this freewill analysis this court should find that if an intervening circumstance affects of volunteer a response from a defendant it will serve as a sufficient intervening factor for purposes of attenuation in the present case defendant exercised his free will when after reading his to is the fact that that codefendant was arrested at this round the same time in the same general area as is the defendant and that's not enough to show the  find that the intervening circumstance would have heard should be affects a volunteer a response from defendant that's the end of the question then as far as the acts covered under the fourth fair that there's by outlined in brown which the degree of the police misconduct looking at the facts in this case despite the defendant's attempts to characterize the police officers action in the worst possible light there is no evidence that defendant subsequent statement was the result of any policeman stop conduct much less flagrant misconduct the police had probable cause to arrest the defendant but he was identified by the victim at the s even if this court were to find that there was no probable cause to arrest since the police officers conduct in the present case amounted nothing more to the officers failure to recognize the imprecise line that exists between probable cause and a reasonable suspicion that kind of behavior does not amount to police misconduct the people's argument is also consistent with the purpose and the goal of the exclusionary rule the doctrine of attenuation exists in order to calculate the societal cost which is the loss of incriminating evidence in relation to the to reasons behind the exclusionary rule itself which is the deterrence a future police misconduct defendants argument that his confession should be excluded because it might have been encouraged by codefendant statement obtained in violation codefendant some fourth amendment rights simply does not advance the policy reasons behind the exclusionary rule and i'd like to back up for a moment and also respond to defendant's arguments regarding the decision and cop and cop there's actually a lot of the actual distinctions between that case in our case in cap you have a seventeen year old who was abducted shirtless sure was in the mall the night from his home and taken down to the police station for questioning clear the officers knew and that case that they did not have probable cause because the conduct of the officers in this case is is obviously distinguishable when i as i said previously the officers in this case merely did not  recognize the imprecise line exists between probable cause and reasonable suspicion also income only one factor was established in that case and that was the fact that the defendant had been mirandized prior to a statement there's another distinction in that case the state did not ask the court to find that there was the presence of that the confrontation with the brother's confession constitute an intervening circumstance in fact that was sent back for that specific purpose in order to determine for the state to introduce more evidence to establish the presence of intervening circumstances in this case you cannot find in that case with the defendants actually asking this court to do is look at a negative and find a positive you can't do that you can't find an implicit decision for find an implicit decision based on the united states supreme court's decision and cop as far as the defendant's reliance on the decisions in taylor and franklin in taylor the defendant was confronted with his own fingerprints and then he received a visit from his girlfriend and a friend and put actually until it actually support our position is an exercise of what we have to look at for intervening circumstances is and is whether or not the defendant exercised his free will because taylor that's exactly what they did they found that his  visit from the girlfriend was not a sufficient basis to find that he had exercised his free will and changed his mind and decided to confess his involvement in this case as far as the decision and frankly the defendant the interview circumstance in that case was a polygraph and that in that case this court found that this did not constitute independent evidence and obviously because it was tied up with the defendants on the west in this case are statement was independent from the defendant's own arrest in this case it constitutes independent evidence as opposed to evidence that was dependent and obtained as a result of the of the defendant's arrest in this case alternative to affirm the judgment and hopkins to and from the defendant's convictions and sentences thank you  what you're saying is that you find that there was probable cause correct and use it as an additional basis for affirming or find that the the high priest to court finding no probable cause a supreme court decision finding probable cause so independent of each other of course this being the highest court that would be that  with regard and just i want to correct a couple of things with regards to cope so referenced sending the case back to the trial court for more evidence they sent it back for evidence of something they didn't have before them they had the confrontation with the coke with the codefendant statement with the brother statement they had that before them in cop right there and they said that that was not attenuating the state trooper didn't argue it as atten probably because the state of texas may have seen that it was futile to argue that as attenuation because that was distinctly a product of the illegal arrest that that was an interrogation that stemmed from the illegal with regards to taylor council discussed a briefly that taylor talked about attenuating factors being something that give the give the defendant an opportunity to rationally consider a situation and make his choices but here we have the police lying to hopkins tone then that they already had him because of sampson statement now this being false certainly isn't the sort of thing that would give a person in that situation time to rationally consider the situation he's in and one small an area that i don't think it's covered sufficiently in the briefs the council was discussing how the dispatch that o'neill acted  on it mentioned that the suspects were fleeing eastward from the scene of the attempted robbery where mr hopkins was actually found south of the scene of the attempted robbery so not only was he not on of where the a temporary took place the state would be arguing as as corroboration of that dispatch look they looked east where the temporary happened we found him east of it but they didn't find him east of it didn't find him fleeing found him south of it in a parked car all by here officer o'neill is here we fully marked squad car in full uniform so mr hopkins is sitting here with his headlights on in full view of this police officer now instead of proceeding directly across the intersection which of course would put his passenger side in front of the police officer and would help obscure him from what the police officer could see he and they they start turning like this so that mr hopkins driver side window is directly at j c and to the driver side window of the squad car putting themselves in full view of the police now this is the this is the antithesis of fleeing this is the antithesis of suspicious behavior he's essentially putting himself where with the police officer can see him now the state talks about him supposedly funny him self back in the seat presumably to obscure cell but what the actual the trial court actually found was that he sort of he like reclined with his hands on the steering wheel didn't find the the judge didn't find that he flung himself backwards so again the state repeatedly says that mr hopkins  dispatch well he was by himself he wasn't with the other young black male he was in a car he was not on foot he was not east of the scene he was south of the scene he wasn't fleeing he was sitting still so and after he was patted down they knew he wasn't armed nonetheless they this the officer in this case he wasn't conducting investigations can conduct an immediate arrest he didn't even ask mr hopkins any any questions based on this very scanty scanty information that was not corroborated by his own observations i mean it is it was a very bare bones dispatcher's no description of height weight hair clothing anything mr hopkins was a young black male in the vicinity and that was it and instead of even conducting just a brief investigatory stop you know asking you know what's his name what's he doing did you just attempt to rob a lady who was walking her dog they immediately jump to a whole blown arrest fullblown custodial arrest based on this information it clearly did not establish probable cause because it was a as i said they didn't they didn't bring in the results of the idea at the motion to quash hearing if it was if this was if the erast was based on the idea why didn't they say bring in somebody to say oh and ms had identified him therefore we have probable cause they didn't do that they told the court that the arrest happened earlier and that is what the court found and this actually brings us to another question is this did no will review of this question no it is not this is  historical fact this court will review for clear error you had two police officers with their guns drawn you had one of the officers telling mr hopkins that they were west again and then he had them going to handcuff him so he's clearly under arrest this is no new trial at which all the tainted evidence of this illegal arrest would not be allowed in thank you thank you cards case number one of the six six eight three  taken under advisement