### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00749- CR

The State of Texas, App ellant

v. Randall Lee Wor rell, Appellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 424 TH JUDICI AL DISTRICT

NO. 453 89, H ONO RAB LE EVAN C. STUB B S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The State of Texas a

ppeals the district c ourt’s amende d order g ranting Randall L ee Worell’s motion to suppress evidenc e of methamphetamine g ather ed afte r a traff ic stop and a sear ch. S ee Tex. Code Crim. Proc. art. 44.01(a) (5). I n a si ng le i ssue consist ing of two subparts, t he S tat e contends that (1) the court abused its discretion by deter mining, without support in the rec ord, that the investigating officer “d el i berately perpe trated an illega l stop” with “ac tual knowledg e” that Worrell had not committed a n offe nse and “with eg reg ious disre g ard of the rig ht to privac y and/or
persona l integ rity that the Four th Amendment protec ts” and (2) even if the stop was unlawful, the office r’s discovery of Worrell’s outs ta n ding arr est war

rant was an intervening circ umstance betwee n the stop and the discovery of the narc otics that attenuate d the “taint” of such stop. We will reve rse the district co urt’s amende d order suppressing the evidenc e and rema nd this cause for further
proce eding s consistent with this opi nion.BACK GR OUND D e p uty Je r e my Stewart of the Bur net County Sheriff’ s Offic e, a cer tif ie d p e a c e o f

f ic e r with almost ten y ear s ’ ex p erie nce, was the only witness at the hear ing on the motion to suppress. He testified that he was on overnig ht duty parke d at a bank parking lot when he saw Worrell driving his dua lly truck a

nd dump trailer into the parking lot of a proper ty acr oss the street, former ly a g as station. Deputy Stewart stated that the g as stati o n wa s n o longe r in business, was the source of

numerous complaints of trespassing and illega l dumping, and was place d on the sheriff ’s office list for “close patrol.” He rec alled seeing sever al items dumped there previously , including a mattress, bed fr ame, a

nd miscellaneous house hold trash. Deputy Stewart testified tha t he saw Worre ll park in the are a “whe re all the dumping was taking place ” and in such a way that the driver’ s side of the truck and the end of the trail er we re n o t visible. Given the darkne ss, the light traff ic, the notrespassing signs that he rec alled wer e posted on the proper ty , and the partially -obscur ed are a on the

s i de of the business wher e Worrell parke d, Deputy Stewart testified that he thought there was n o

rea son for any one but the business owner to b e t here , that he thought that trespassing had taken place , and that there was a strong possibili ty of illega l dumping. But Deputy Stewart also testified that the position of Worrell’s vehicle preve nted him f rom seeing any

thing on the dr iver’s side a nd the trailer ’s end, including the suspecte d illega l dumping.

Deputy Stewart stated that afte r Worrell drove awa y , he followed and initiated a stop. De p u ty Stewart testified that when he asked Worrell for identification, he noticed his nervo u s demea nor. Dep u t y S t ewa

rt stated that he conducte d his routine investigation steps of running W o rr ell throug h dispatch to identify him and reque sting a local war rant chec k. Video from th e dashboar d came ra in Deputy Stewart’s patrol car was admitted into evidenc e, showing Deputy

2Stewart speaking with W o rr el l an d his passeng er afte r the stop. I n conver sation shortly afte r the

stop, Worrell volunteers to Deputy Stewart that he “g ot out,” and they discuss cer tain aspec ts of his parole

. Minutes into t h e s t o p , t h e dispatcher is hear d on the video advising Deputy Stewart that Worrell h ad an ac t i v e war rant. Next, Deputy Stewart is hear d telling Worrell that he was being detained pending confirma tion of the war rant. Conversat i o ns betwee n Deputy Stewart and the dispatcher captur ed on the vi deo show that Deputy Stewart waited at t he sce ne for Worrell’s bos s
to take the trailer that Worrell had been using and for a wre cker to impound Worrell’s truck beca use it had no insurance and Worrell’s passeng er had no valid driver’ s l i ce n se. After the dispatcher
repor ted that she had a telety

pe confirming Worrell’s war rant, Deputy Stewart arr ested Worrell and drove him to jail. Although the rec ord of the suppression hear ing stop s b ef o re d i scussion of
prec isely how and whe n the nar cotics we re f ound, Worrell’s motion to suppress states that he was

arr ested for possession of a controlled substance as a result of his detention and the sear ch that followed his ar

rest. A g rand jury indicted W o rr el l for possession of a controlled substance (methamphe tamine), and he filed a motion to suppress evidenc e of that offe nse, contending that his detention and the sear ch that followed wer e unlawful. The district court g rante d Worrell’s motion, which the State a

ppeale d. The c ourt made the se finding s and conc lusions:

I . FI NDI NGS OF F ACT 1. The Court had the opportunity to evalua te the demea n o r and cre dibilit y of J ere my Stewart, the State’ s sole witness. 2. Offic er J ere my Stewart observe d the Def endant’ s vehicle enter and park on the edg e of an open parking lot that is fronted by a state highw ay adjac ent to a

3closed business for approximately five minutes at approximately 8:25p.m., on the nig ht of Octobe r 6, 2015. 3. No t h i n g about the location of the Def endant, the time of night, the ty pe of vehicle driven by the Def endant, or the fac t that t h e De fe n dant was pulling a construction trailer would raise a level of suspicion to an objectively rea sonable office r. 4. No cha ins or barr iers, of a ny kind, r estricted entry to the parking lot or place d the public on notice that e ntry was for bidden. 5. No cre dib l e ev i d ence was prese nted that the public, or this defe ndant, was place d on notice that entr y to the parking lot was forbidde n. 6. No cre dible evidenc e was prese nted that there wer e any “No Trespa ssing” signs post ed in any visible location that provide notice to the public, or this defe ndant, that entry

to the parking lot was forbidde n. 7. Despite maintaining const an t v i ew of the vehicle from the time it enter ed the parking lot until the time it exit ed the parking lot, Offic er J ere my Stewart never saw the Def

endant, or any one else, exit the vehicle, or do any t h i n g i l l egal, or even obje ctively

suspicious. 8. Offic er J ere my Stewart ag ree d that his offe nse repor t states that, “At this time I thought that may

be the truck dumped something out of the trailer or possibly committed some ty

pe of theft from around the building,” despite the fact that both options are objectively impossibl e without someone exit ing the vehicle, and Of fice r Stewar

t knew that no per son had exited the vehicle. 9. Offic er J ere my Stewart maintained that he thought the d efe ndant “possibly dumped something or committed some ty pe of the ft.” 10. Offic er Jeremy

Stewart obser

ved no specific facts t hat would sug g est that the Def endant, or any one associate d with the Def endant, illega lly dumped any thing or committed any

kind of theft. 11. I t would be objectively impossibl e for this defe n d ant to have “dumped something” or “possibly committed so m e ty pe of theft” without someone exit ing the Def

endant’ s vehicle while it was stopped. 12. Offic er J ere my St ewa rt observe d only activity or conduct that could be char acte rized as per fec tly innocent conduc t.

413. Offic er J ere my Stewart obser ved the De fenda

nt resume tra

vel onto the public roadw ay . 14. Offic er Jeremy

Stewart initiated a tra ffic stop of the Def endant. 15. Offic er J ere my Stewart initiated the traff ic stop de spite actua l know ledg e that the Def endant had not “ dumped something or committed some ty pe of theft.”

I I . CONCL USI ONS OF L AW 1. The office r’s articula ted basis for the stop of the defe ndant constitutes, at most, a mer e hunch w ithin the gambit of Terry vs. Ohio

. 2. The De fenda

nt was not trespa ssing on the nig ht of Octobe r 6, 2015. 3. Offic er J ere my Stewart lacke d rea sonable suspicion for the stop of the Def endant. 4. The stop was an objectively unrea sonable violat i o n of Def endant’ s Four

th Amendment rig ht to be fre e fr om unrea sonable sea rche s and seizure. 5. The discovery of the war rant wo u l d not have occur red but for the police misconduct that occur

red with actua l, first hand, knowledg e that the all eg ed rea son for the stop had not oc curr ed and w as objec tively impossibl e. 6. The rea son for the stop was not based upon a mistaken understanding of the law and a subjective belief that a violation had occur red as in State v. Ma z u ca , but inste ad , this stop was the result of actions by an office r with actua l, first hand, knowledg e that the alleg ed re as on for the stop had not occur red and could not possibly have occur

red as he had observe d the Def endant the entire time that the Def endant was stopped and knew that the Def endant had never exit ed his vehicle an d that “dumping ” and/or “thef t” were objectively impossibl e without exi t i n g the vehicle

. 7. T h e intervening discovery of the war rant did not attenuate the illega li t y o f t h e stop. This office r deliberately perpe trated what he knew, or should have known, to be an illega l stop (base d on rea son that he knew was false) with no rea sonable explanation other than a hope or ex pecta tion that the s top might gene rate some leg itimate afte r-the- fac t justification to arr est an d/or sear ch with eg reg ious disreg ard of the rig ht to privac y an d /or persona l integ rity that the Four th Amendment prote cts.

58. To admit the p h y s i cal evidenc e based on the fortuity that an arr est war rant h ap p ened to come to light afte r the illega l stop, but befor e the evidenc e wa s discovere d, would perve rsely serve to encour ag e officia l misconduct by this office r, as we ll as other law e nforc ement off icer s, in the future.

DISCUSSIO N The State co n t en d s that the court abused its discretion by deter mining, without support in the rec ord, that Deputy Stewart “deliber ately perpe trated an i l l ega l stop” with “ac tual knowledg e” that Worrell had not committed an offe nse. The State further contends that even if the stop was unlawful— wh i ch it does not conce de—De puty Stewart’s discovery of Worrell’s outstanding a

rre st warr ant was a

n intervening circ umstance be tween the stop and the discover y of the nar cotics that attenuated the “ta int” of such stop. Stand ard of review

We revie w a trial court’s ruling on a motion to suppress evidenc e fo r an abuse of d i s cr et i on and overturn the ruling only if it is arbitra ry , unrea sonable, or “outside the zone of

rea sonable disag ree ment.” State v. Sto ry , 445 S.W .3d 729, 732 (Tex. Crim. App. 2014); State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006). When a t ri al co u rt makes expli cit fac t finding s, we deter

mine whether the evidenc e viewed in the light most favor able to the trial court’s ruling supports the fac t findings. Johnson v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013)

. We g ive almost complete defe renc e to the trial court’s deter mination of h i s torical fac ts, but we revie w the court’s application of the law to those fac ts de novo. Story , 445 S.W .3d at 732; Dixon , 206 S.W .3d at 590. We are not b o u n d by the trial court’s finding s and conclusions that are not supported by the rec ord. State v. W hittingt on , 401 S.W .3d 263, 271 (Tex. App.—San Antonio 2013,

6no pet.); see State v. Mazuca , 375 S.W .3d 294, 308-09 (Tex. Crim. App. 2012) (re jecting trial court’s conclusion as to “f

lag ranc y of the police action” tha t was not supported by rec ord). Atte nuation doctrine

To enfor ce the Four

th Amendment’s prohibition ag ainst unrea sonable sear ches and seizures, courts sometimes exclude evidenc e obtained by unconstitutional police conduct. Utah v. Strieff , 136 S. Ct. 2 0 5 6 , 2 0 5 9 (2 016); see Tex. Code Crim. Proc. art. 38.23(a) (setting forth exclusionary rule: “No evidenc e obtained by an office r or other person in violation of any provisions of the Constit ution or laws of the State of Texas, or of the Constit ution or laws of the United States of America, shall be admitt ed in evidenc e aga inst the accused on t h e t ri al of any criminal case.”)

. But neither the Four

th A mendment nor the Texas e x clusionary rule in article 38.23( a) of the Code of Criminal Procedur e require s suppression of evidenc e that was not obtained as a result of some illega lity

. State v. Jack

son , 464 S.W .3d 724, 741 (Tex. Crim. App. 2015). Evidence is not obtained in violation of the law within the plain meaning of article 38.23 if the “taint” from the illega lity has dissipated by the t ime the evidence is acquir ed. W ehrenbe rg v. Stat e , 416 S.W .3d 458, 469 (Tex. Crim. App. 2013) (citing Johnson v. State , 871 S.W .2d 744, 750 (Tex. Crim. App. 1994)).

The fede ral attenuation doctrine provides that evidenc e is admissible wh en t he

connec tion betwee n unconstitutional police conduct and the ev i dence is remote or has been interrupted b y some intervening circ umstance, so that “the interest protec ted by the consti tutional
g uara ntee that has been violated would not be serve d by suppression of the evidenc e obtained.” Strieff , 136 S. Ct. at 2061. I n such case s, the l i n k b et we en the unconstitutional conduct and the discovery of the evidenc e i s co n s i d ered too “attenuated” to justify suppression. Id

. at 2059. The

7Court of Criminal Appea ls has “adopte d the fede ral attenuation doctrine as being consistent with the

express provisions of Article 38.23 beca use ‘evide nce sufficie ntly attenuate d from the violation of the l aw is not considere d to be ‘obtained’ therefr om.’” W eh r en b er g , 416 S.W .3d at 469 (quoting Johnson , 871 S.W .2d at 750-51).

To deter mine whether the attenuation doctrine applies here and whether evidenc e of the narc otics is a dmissibl e, we consider thr ee f actor s: (1) the temporal proxi mity of the stop to the seizure of the evidenc e, (2) the prese nce of intervening circ umstances, and particula rly , (3) the
purpose and flag ranc y of the officia l misconduct. See Jack son , 46 4 S.W .3d at 731; Mazuca , 375 S.W .3d at 302. Discover y of an arr est war

rant—oc curr ing afte r an unlawful s t o p b u t b ef ore discovery and seizure of evidenc e—may be an intervening circ umstance that “attenuate[s] the taint” of the unlawful s top when there is no purposef ul or flag rant misconduct by police. Mazuca , 375 S.W .3d at 310; see Strief f , 136 S. Ct. at 2064. I n such circ umstances, discovery of the arr est

war rant c hang es the importanc e of the attenuation fa ctors in that “‘the importance of the tempora l proxi mity fac tor decr ease s,’” and the third fac tor, “‘the purposef ulness and/or flag ranc y of the police misconduct, vel non , become s of vital importance. ’” Jack son , 464 S.W .3d at 731-32 (quoting Mazuca , 375 S.W .3d at 306-07).

Worrell did not addre ss the attenuation doctrine or its three -fa ctor test at the hear ing

on the motion to suppress; rathe r, he contende d that the discovery of the arr est war rant and any

thing bey ond the stop was irre levant:

And irreg ardle ss [si c] of whether or not a traff ic war rant was discovere d later is not rele vant t o t he issue prese nted here today beca use the only rea l issue is was there rea sonable suspicion .

. . that there was, in f act, criminal activity g oing on, about to happen, or had just happene d. So the only thing that I will take issue with is

. . . the

8fac t that a war rant was discovere d later would somehow aff ec t t h i s beca

use it doesn’t.

. . . . This motion to suppress is about the stop, and that’s al l

. W e’ re go ing bey ond the stop, so this is not relevant to wha t we have befor e the c ourt.

. . . . This is not rele vant to t h e i ssue of the traff ic stop. What happene d down at the sheriff ’s depa rtment is just not rele vant to the traf fic stop.
Appar ently persua ded by these arg uments, the district court did not make finding s and conclusions

on the three fac tors of the attenuation doctrine, the court ag ree d not to view t h e d as h -ca m video bey ond the point wher e Deputy Stewart believed the war rant was confirme d and Worrell was taken into custody , and the court s u s t ai n ed Worrell’s objection to Deputy Stewart’s testimony about routine actions he took reg arding his patrol vehicle afte r he had tak en W o rr el l to jail. Howeve r, Worrell’s arg uments conflict with controlling prec edent showing that an arr est war rant discovere d afte r an u n lawful traff

ic stop but befor e a sear ch y ielding narc otics can be rele vant. See Mazuca , 3 75 S.W .3d at 310 (holding that althoug h defe ndant’s ini tial stop was il leg al, evidence of ec s t as y found in hi s pants was admissible beca use arr esting office rs’ behavior was not particula rly purposef ul o r flag rant and discovery of defe ndant’s outstanding arr est war rants broke causa l

connec tion betwee n stop and discovery of ecsta sy ); see also Strieff

, 136 S. Ct. at 2062, 2064 (holding that evidenc e of methamphetamine and drug para pherna lia that office r seized in se arc h incident to

ar re s t was admissi ble, even if he lacked reasonable suspicion to stop defe ndant, because office r’ s discovery o f arr est war

rant attenuate d connec tion betwee n unlawful stop and evidenc e seized incident to arr est). We proc eed to c onsider the thre e attenuation-doctrine f actor s.

9Atte nuation -doctr ine f actor s w eigh agains t supp ression of the evidence 1. Tem poral proxim ity As to the first fac tor, te mp o r a l p r o xim it y betwee n the stop and obtaining the evidenc e, the record indicates that Worrell’s t raf fic stop did not occur close to the t ime th at t h e ev i d en ce of

narc otics was discovere d. The dash-c am video shows that the narc otics had n o t been discovere d betwee n the time that Deputy Stuart stopped Worrell and almost two hours later when they arr ived

at t he garage en t ry t o the j ail, but the narcotics were discovered sometime afte r t hat. Be cause the

narc otics wer e not found shortly afte r the stop, this fac tor weig hs ag ainst suppression. Mazuca , 375 S.W .3d at 306, 308 (noting that temporal-pr ox imity fa ct o r “u sually favor s suppression of evidenc e that is discove red in the immediate afte rmath of an illega l pe destrian or roadside stop”). 1

2. Interve nin g circ um stances Th e s ec o n d fac tor, the prese nce of intervening circ umstances, also weig hs ag ainst

s u p p re s sion. Deputy Stewart’s discovery of W orre ll’s outstanding arre st war rant, withi n minut es of the stop, qualified as an intervening circ umstance betwee n the stop and the sear ch that ultimately
y i el d ed the narc otics. See Mazuca , 375 S.W .3d at 310; see also Strieff , 136 S. Ct. at 206 4

. T h at

sear ch was conducte d only afte r Worrell had been arr ested for the outstanding war rant an d wa s a result of that arr est , n ot a result of the traff ic stop. Fur

ther, the arr est war

rant predated Deputy Stewart’s investigation and was entirely unconnec ted to the s t o p . See Strieff , 136 S. Ct. at 2062.

Even if the nar co t i cs h ad b een discovere d “in the immediate afte rmath” of the stop, the 1 temporal-pr ox imity fac tor does not weig h heavily when there is an intervening discovery of an arr est war rant. State v. Mazuca , 375 S.W .3d 294, 306-07 (Tex. Crim. App. 2012) (“[W] hen an outstanding arr est war

rant is discovere d betwee n the illega l stop and the seizure of phy sical ev i d en ce , t he importance of the tempora l prox imity fac tor dec rea ses.”)

.

103. P urpose and fl agrancy of of fi cial m iscondu ct The third and most important fac tor, the “purpose and flag ranc y of the officia l misconduct,” also weig hs ag ainst suppression. Her e, the district court det ermined that Deputy Stewart “d el i b er ately perpe trated an illega l stop” with “ac tual knowledg e” that Worrell had not committed an offe nse and “with eg reg ious disreg ard of the rig ht to privac y and/or persona l integ rity that the Four

th Amendment protec ts.” No evide nce in the r ecor d supports these dete rminations. The court could not have rea sonably found that Deputy Stewart “knew that no person had exit ed the vehicle” and that he “i n i t i at ed the traff ic stop despite actua l knowledg e that the Def endant had not ‘dumped something or committed some ty pe of theft.’” The evidenc e in this

rec ord i s that Deputy Stewart could not see the illega l acts that he suspected because W o rr el l h ad parke d in such a wa y that the driver’ s side of the truck and the end of the trailer wer e not visible. Deputy Stewart consistently testified that beca use of his obstructed view of the driver’ s side of the truck and the back side of the trailer, he could not s ee wh et h er any one had exit ed the vehicle or whether any illega l actions had oc curr ed:
Q. Did y ou ever

see him [W orre ll] g et out of his vehicle? A. No, I could not.

. . . . Q. And in order to have committed a th ef t an i n dividual would have had to have g otten out of the truck a

nd g one and done something, r ight? A. Corre ct, but I

did not have a visua l view of the dr iver’s side of the truck.

. . . . Q. But this vehicle never –y ou never saw him [W orre ll] g o behind the building, did y ou?

11A. No, but ag ain, I never saw the driver’ s side of the vehicle, so I cannot confirm or

deny that nobody exit ed the driver’ s side o f the vehicle and may have dumped something be hind the building.

The co u rt d i d not make a finding that Deputy Stewart’s testimony about being unable to see the driver’ s side of the truck or the end of the trailer was not cr edibl e. The court did not state that it disbe li e v e d D eputy Stewart’s testimony that he was unable to confirm or deny whether any one exit ed the driver’ s side of the vehicle and may have dumped something behind the building. I nstead, the court’s finding went bey ond the fac ts in this rec ord and rea sonable infere nces from those fac ts to find that Deputy Stewart initiated the stop “despite actua l knowledg e that the Def endant had not ‘dumped something or committed some ty pe of theft.’” Nothing in the rec ord indicates that Deputy Stewart had any persona l animosity toward W orre ll or t hat Deputy Stewart had any history of m isconduct that would support the court’s finding that Deputy Stewart knowingly initiated an unju s t i fi ed an d illega l traff

ic stop. See Strieff

, 136 S. Ct . at 2063 (noting that there was no e vidence that office r’s stop was part of some sy stemic or rec urre nt police misconduct). Fu rt her, nothing in the rec ord indicates that Deputy Stewart’s conduct was “eg reg iously abusive,” that he exhibi ted any awa rene ss of impropriety of his stop, or that the manner in which he conducte d the stop was calc ulated to cause surprise, fri g ht, or confusion. See Mazuca , 375 S.W .3d at 309 & n.71 (dec iding that element of purposef ulness was not met beca

use rec ord did not support conclusion that office r’s conduct during

course of unlawful traff

ic stop was in flag rant derog ation of defe ndant’s Four th Amendment rig hts). Fr om its unsupported fact f indings the court t hen dre w incorr ect leg al conc lusions, including that Deputy Stewart had “ac tual, first hand, knowledg e that the alleg ed rea son for the stop h ad not occur

red,” that Deputy Stewart “deliber ately perpe trated what he knew, or shoul d h av e known, to be an illega l stop,” and that Deputy Stewart acte d “with eg reg ious disre g ard of the rig ht

12to privacy

and/or pe rsonal integ rity that the Fourth Amendment protec ts.” Contrary to the court’s conclusions, this rec ord shows no “deliber ately perpe trated” illega l stop, no initiation of a traff ic stop with “ac tual knowledg e” that Worrell had not “dumped something or committed some ty pe of theft,” and no “eg reg ious disreg ard” for Four th Amendment rig hts. Rather, the rec ord ref lects that the stop

occur red in connec tion with Deputy Stewart’s investiga t i o n o f suspected trespassing , theft, and illega l dumping in the parking l o t o f a v aca nt proper ty

. That proper

ty had been the source of

numerous complaints of trespassing and illega l dumping , that proper ty was wher e Deputy Stewart had previously seen a mattress, bed frame, and miscellaneous ho u s eh o l d t rash dumped, and that
proper ty had been place d on the sheriff ’s office list for “close patrol.” See Mazuca , 375 S.W .3d at 308-09 (noting that element of purposef ulness was lacking beca

use office rs who stopped defe ndant had been t asked with looking for t raf fic viol ators, not to find motorists with outstanding wa rrants
to conduct sear ches incident to arr est); see also Strieff , 136 S. Ct. at 2064 (noting that office r’s err ors in judgme nt while investigating suspected drug house did not rise to level of “purpose ful or flag rant violation of [defendant’ s] Four th Amendment rig hts”); Leming v. State , 493 S.W .3d 552, 565 (Tex. C rim. App. 2016) (noting that deter mination that rea sonable suspicion exis ts need not ru l e o u t possibili ty of innocent conduct; indeed, principal function of detaining office r’s investigation is to resolve tha t very

ambig uity

and esta blish whether a ctivity

is in fact leg al or illeg al). Deputy Stewart’s g ood-fa ith belief in the l aw fu l n ess of the traff ic stop was even acknow ledg ed by Worrell’s counsel at t he hearing on the m o t i o n to suppress: “You know, J udg e, I don’t—I do n ’t d o u b t that Offic er Stewart believed that he had rea sonable suspicion, but the problem is that his rea sonable suspicion w as a subjective opinion that he made.” Recog nition that Deputy Stewart “believe d that he had rea sonable suspicion” for the stop is plainly inconsistent with

13the finding s and conc lusions that Deputy Stewart made the stop with ac tual knowledg e that it was

unjustified and illega l. We are not bound by unsupported finding s and conclusions. See W hittingt on , 401 S.W .3d at 271; see also Mazuca , 375 S.W .3d at 308-09. Her e, as in Mazuca , the court’s finding s and conclusions “effe ct ively presume ” purposef ul and flag rant misconduct from what it considere d an unlawful stop alone, rathe r than assessi n g the char acte r of that stop—“and of any subs equent police conduct” —to deter mine whether it indicates that the office r “ actually behave d purposef ully or flag rantly ” in this case. See M azuca , 375 S.W .3d at 310 (e mphases in orig inal). Apply ing the three attenuation-doc trine fa ct o rs t o the evidenc e in this rec ord—eve n considere d in the lig

h t most favor able to the district court’s ruling—weig hs ag ainst suppression. The evidenc e of narc otics is admissibl e beca use that evidenc e was sufficie ntly attenuate d from the complained- of traff

ic stop as to be considere d separ ate from it, i.e., not “obtained” from the stop. See W ehrenbe rg , 416 S.W .3d at 469; Johnson , 871 S.W .2d at 750-51. The sear ch that y ielded the

narc otics wa s co n d u ct ed only as a result of Worrell’s arr est for the outstanding war rant, not as a result of the stop. Assuming that the stop of Worrell was unlawful, nothing in this rec ord shows the level of purposef

ulness or flag ranc y of Deputy Stewart’s conduct that the court’s find i ng s and conclusions attribute to him. See M azuca , 375 S.W .3d at 310; see also Strieff , 136 S. Ct . at 2064. I n the absenc e of such purposef ul or flag rant conduct, Deputy Stewart’s discovery of Wor re l l ’s outstanding arre st war

rant was an int erve ning circumstanc e that was “wholly indepe n d en t ” of t he stop, broke t he causal connection betwee n the s top and the discovery of t he narcotics, and purg ed the “taint” of the stop, if any . See Mazuca , 375 S.W .3d at 310; see also Strieff , 136 S. Ct. at 2063. The order g ranting suppression of the evidenc e, on this re cord, was outside the zone of rea sonable disag ree ment and constituted an abuse of d i s cr eti on. Cf. Story , 445 S.W .3d at 732; Dixon ,

14206 S.W .3d at 590; see State v. Chupik , No. 03-09-00356- CR, 2011 Tex. App. L EXI S 7597, at *8

(Tex. App.—Austin Sept. 15, 2011, no pet.) (mem. op., not desig nated for publication) (conc luding that court’s order g ranting motion to suppress that was not supported by ev i d ence was abuse of discretion). We sustain the State’s a ppellate issue.

CONCLUSION We r ever se the district c ourt’s ame nded orde r g ranting suppression of the evidenc e and re mand this cause f

or fur ther proc eeding s consistent with this opi nion.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices F ield and B ourland Reverse d and Remande d Filed: Jul y

26, 2017 Do Not Publish

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