Massey v. Texas: Eroding the Exclusionary Rule and Incentivizing Police Misconduct

Abstract

In April 2023, the Texas Court of Criminal Appeals upheld the conviction of James Calvin Massey for possession of drugs discovered as a direct result of an unconstitutional Terry frisk. Ordinarily, with limited exceptions, the exclusionary rule prohibits the prosecution from using contraband discovered as a result of unconstitutional police action, akin to the situation Mr. Massey encountered. In fact, that’s exactly why the intermediate court of appeals reversed Mr. Massey’s conviction. When the Texas Court of Criminal Appeals reversed that decision and reinstated his conviction, it broke new ground, holding that because Mr. Massey resisted the unconstitutional Terry frisk, his uncharged misdemeanor offense of resisting—no matter how petty or predictable—constituted an “intervening circumstance” triggering the attenuation exception to the exclusionary rule. As such, the drugs were admissible despite the unconstitutional police action.

To reach its holding, the Texas Court of Criminal Appeals relied on the recent Supreme Court decision in Utah v. Strieff. But the Texas Court fundamentally misapplied Strieff. Strieff’s holding depended primarily on the fact that a suspect’s intervening circumstance (an outstanding warrant) was both pre-existing and independent of any unconstitutional police action. Accordingly, in Strieff, the officer’s unconstitutional action did not taint the discovery of contraband. Not so in Massey, which went far beyond what Strieff allows to create a per se rule that all but eliminates the exclusionary rule in Texas whenever a suspect’s reaction to an unconstitutional police seizure or search leads the officer to initiate an arrest.

Not only was the Texas Court of Criminal Appeals’ opinion in Massey wrong on the law, but its holding carries enormous policy implications for policing. While the exclusionary rule exists primarily to disincentivize police misconduct, Massey points officers in another direction: it creates an incentive for police to engage in unreasonable seizures in the hope a suspect will react in a petty and predictable manner, as did Mr. Massey, providing the officer with a new basis for arrest and accordant search. Even when a suspect’s response is a direct result of a Fourth Amendment violation, Texas courts must nearly always treat that response as attenuated from the violation. Ultimately, Massey invites the very behavior the exclusionary rule was designed to deter.

The article is both descriptive in its explanation of the exclusionary rule and its exceptions, and analytical in its critique of Massey and the foreseeable consequences of that flawed decision. While one focus of the article is on a recent Texas case, it is not a Texas-specific discussion. This article, more than anything, gives needed attention to a recent trend of limiting the exclusionary rule against the backdrop of established Supreme Court guidance. It is, in this regard, a cautionary tale for courts in all states to fully consider both binding precedent and the policy implications at stake.

Keywords: criminal procedure, criminal law, constitutional law, exclusionary rule, attenuation doctrine, stop and frisk