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 patdown 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 patdown 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 
MASSEY – 7

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 
MASSEY – 8

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-interveningcircumstances.”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).
MASSEY – 14

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 

14 See 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