The STATE of Texas, Appellant, v. George GUO, Appellee, 64 S.W.3d 662

OPINION FRANK C. PRICE, Justice. This is an interlocutory appeal, brought by the State after the trial court granted defendant, George Guo’s, motion to suppress. See Tex.Code Crim. PROC. Ann. art. 44.01(a)(5) (Vernon Supp.2001). We affirm. Background Evidence adduced at the suppression hearing included the following: The Arrest — June 28, 1999 On the night of June 28, 1999, Jeff Hill-burn called the police after seeing a suspicious person park a pickup truck on his street and walk onto the property of his neighbor, Suzanne Phillips.

The police arrived at Phillips’s home, and, after a violent struggle, arrested the defendant, Guo, for Assault on a Public Servant. A photograph of Phillips’s daughter, a pantyhose mask, a white glove, a brown glove, and a pair of shoes were found in Guo’s possession. The truck Guo was driving was located 40 feet from the arrest. Police officers called a wrecker to have the truck towed. Before towing the truck, the police inventoried it and found several items, including a black briefcase. The briefcase was not searched at this time.

The First Warrantless Search of the Briefcase — July 2,1999 After Guo was arrested, the police placed an “evidentiary hold” on the truck and towed it to Collision Clinic. On July 2, five days after Guo’s arrest, the police contacted Douglas Tian, the registered owner of the truck. Tian gave the police consent to search the truck, which the officers did. Tian, however, claimed that the briefcase did not belong to him. The police officer then searched the briefcase for “a couple of, three minutes.” Inside, he found condoms, an expired driver’s license belonging to Guo, keys, business cards, and work orders.

The truck was then released to Tian. The Second Warrantless Search of the Briefcase — July 20, 1999 On July 20, 1999, the police again searched the briefcase in an effort to “better ascertain ownership of the briefcase.” In addition to Guo’s expired driver’s license, the police found numerous index cards with names on them, a blue folder, a clipboard, and a green ledger. The green ledger contained the name, Francis Magla-lang. Maglalang was the victim in a 1998 rape, and the police had already noted several similarities between her case and the case for which Guo was under investigation.

After discovering Maglalang’s name in the green ledger, the police “stopped [the search] and out of an abundance of caution wait (sic) to obtain a search warrant.” The Briefcase Searched Pursuant to Warrant — July 21,1999 On July 21, 1999, the police obtained a search warrant to search the briefcase. The affidavit supporting the search warrant contained the following statements: On July 2, 1999, [the investigating officer] identified the registered owner of the Toyota pickup and obtained a consent to search the Toyota pickup from the owner, Douglas Hand (sic).

While searching the Toyota pickup [the investigating officer] observed a one white knit glove under the drivers seat and a leather softsided briefcase. Said briefcase was open and [the investigating officer] observed one dark brown fabric glove, business work orders and what appeared to be condoms. [The investigating officer] indicated that the gloves observed in the Toyota pickup appeared to be of the same make and material as the two gloves found of the defendant at the time of his arrest.

Douglas Hand (sic) informed [the investigating officer] that the briefcase did not belong to Douglas Hand (sic). [The investigating officer] entered the briefcase to identify the owner and located an expired Texas drivers license issued to George Guo. [The investigating officer] seized the briefcase at this time and placed in the Meadows Place Police Department for safekeeping. (Emphasis added). The search warrant was issued and executed the same day — July 21, 1999.

The following items were seized from the briefcase: (1) a brown fabric glove with loose hair; (2) a clipboard with business records; (3) a green book with business records, which contained the name Francine Magla-lang; (4) a blue folder with business records, which contained the address to which the police dogs had tracked Francine Ma-glalang’s assailant; (5) an Exxon receipt made out to Shaio M.

Kuo, dated 6-17-99; (6) numerous file cards containing names, license plate numbers, addresses, descriptions, car makes, and locations; (7) three unused condoms; and, (8) an expired driver’s license in the name of George Guo. The Residence Searched Pursuant to Warrant — July 23,1999 On July 23, 1999, the police obtained a search warrant for George Guo’s residence. The affidavit for this search included testimony about Francine Magla-lang’s assault.

The warrant was executed the same day, and the police recovered, among other things: (1) four pairs of panty hose; (2) seven black, cloth gloves; (3) a computer tower, monitor, and laptop; (3) photographs of a nude woman; (4) twenty-one assorted keys and keyrings; (5) a pellet pistol; (6) black nylon gloves; and (7) notebooks containing business records. Another green ledger with Francine Maglalang’s address was found in the residence, as well as documents indicating that Guo had access to two storage units.

The Storage Units Searched Pursuant to Warrant — July 24,1999 The next day, the police obtained a warrant to search the two storage units, which they had learned about as a result of the search of appellant’s residence the previous day. Again, the affidavit was based, in part, on the information about the assault on Francine Maglalang. The warrant was executed the same day, and the police recovered the following: (1) index cards with name and address; (2) a locked safe; (3) computer disks; and (4) boxes of papers and personal items.

The Motions to Suppress and Rulings Thereon Guo filed motions to suppress all of the evidence seized as a result of the searches of the briefcase, the residence, and the storage units. Specifically, he argued that the first two warrantless searches of the briefcase were unlawful, and that those searches tainted the later searches, which were conducted pursuant to warrants. The trial court held a hearing on the motions to suppress, and after hearing five days of testimony from three defense witnesses and eight State’s witnesses, granted the motions.

The State requested findings of fact and conclusions of law, but the trial court did not make such findings. This interlocutory appeal followed. Law and Analysis The Warrantless Searches — Reviewable without Findings of Fact? In points of error one through five, the State contends the trial court erred by granting Guo’s motion to suppress the evidence seized from the briefcase pursuant to the two warrantless searches, arguing (1) that Guo lacked standing to contest the search; (2) that the search was incident to arrest; (3) that the search was a lawful inventory search; or (4) was a lawful consent search.

In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). The trial court may believe or disbelieve any witnesses’ testimony. Johnson v. State, 871 S.W.2d 744, 748 (Tex.Crim.App.1994). As the trier of fact, the trial court may disbelieve testimony even if the testimony is uncontroverted. Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim.App.1987); State v. Davis, 991 S.W.2d 882, 883 (Tex.App.—Houston [1st Dist.] 1999, no pet.).

In reviewing decisions on motions to suppress, we afford almost total deference to trial courts’ determinations of facts and their rulings on mixed questions of law and fact when those fact findings and rulings are based on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App.1998). Mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Id. In reviewing a trial court’s decision on suppression, we view the evidence in the light most favorable to the trial court’s ruling. Ballard, 987 S.W.2d at 891.

In this case, the trial court granted the motion to suppress without making any written findings of fact. As a general rule, in the absence of findings of fact by the trial court, we are unable to hold that the trial court abused its discretion in granting a defendant’s motion to suppress. State v. Cardenas, 36 S.W.3d 243, 245 (Tex.App.-Houston [1st Dist.] 2001, pet. filed). Assuming that the State’s legal arguments are sound, the only valid reason for the trial court to have granted the motion to suppress is that it didn’t believe the State’s version of the evidence. State v.

Davis, 991 S.W.2d 882, 883 (Tex.App.-Houston [1st Dist.] 1999, no pet.). From the record before us, we are unable to tell which of the State’s witnesses, if any, that the trial court believed or disbelieved in making its ruling. It could be that the trial court did not believe the police officers on some key piece of evidence, such as whether the truck was locked or unlocked, whether the briefcase was open and in plain view, or whether or not the officers knew, prior to the first warrantless search, that the briefcase belonged to George Guo.

Without findings of fact, there is simply no set of “concrete” facts upon which to conduct a de novo review. See State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000) (in absence of findings of fact, even uncontroverted State’s evidence will not support de novo review); State v. Davis, 991 S.W.2d at 883 (in absence of findings of fact, appellate court unable to hold that trial court abused its discretion in granting defendant’s motion to suppress). Accordingly, we overrule points of error one through five. The Searches Pursuant to a Warrant— Fruit of the Poisonous Tree?

In points of error six through nine, the State contends that the trial court erred by suppressing the evidence recovered from the briefcase; in points of error 12 through 15, the State argues that the trial court erred by suppressing the evidence recovered from Guo’s residence; and in points of error 18 through 21, the State argues that the trial court erred by suppressing the evidence recovered from the two storage sheds. In all of these points of error, the State contends that the evidence seized should have been admissible because it was seized pursuant to a lawful warrant.

The defendant, however, argues that the searches pursuant to warrants were tainted by the two prior war-rantless searches of the briefcase. Evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence. Suppression is not justified unless “the challenged evidence is in some sense the product of illegal governmental activity.” Segura v. U.S., 468 U.S. 796, 815, 104 S.Ct. 3380, 3391, 82 L.Ed.2d 599 (1984) (quoting United States v. Crews, 445 U.S., 463, 471, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980)).

However, satisfying the “but for” requirement is not the only test of whether the evidence is an illegal “fruit.” The more apt question to ask is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). We hold that, in this case, the three searches pursuant to a warrant were tainted by the two previous warrantless searches.

The first warrantless search provided a direct link to Guo because an expired driver’s license in his name was found inside the briefcase. The police exploited this discovery by using it as a basis for establishing probable cause for the warrant to search the briefcase. The police knew that they would discover the link to Guo because they had already searched the briefcase without a warrant. The second warrantless search of the briefcase revealed a link between Guo and the Francine Maglalang assault.

Details of the Ma-glalang assault were used to establish probable cause for the warrants to search Guo’s home and storage units. We conclude that the police exploited the information discovered in the two warrantless searches in order to obtain the warrants. Thus, the searches pursuant to the warrants were tainted. See State v. Aguirre, 5 S.W.3d 911, 914 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (because evidence supporting search warrant was illegally obtained, evidence recovered by executing warrant was fruit of illegal search); State v.

Johnson, 896 S.W.2d 277, 288 (Tex.App.Houston [1st Dist.] 1995, no pet.) (search pursuant to warrant invalid where information used in affidavit to obtain warrant was gained by prior illegal, warrantless search). Because the searches pursuant to warrants were tainted by the two previous, warrantless searches, the trial court did not err by suppressing the evidence obtained when those warrants were executed. Accordingly, we overrule the State’s points of error six through nine, 12 through 15, and 18 through 21.

The Trial Court’s Refusal to File Findings of Fact In points of error ten, 11, 16, 17, and 22, the State contends the trial court erred by not filing findings of facts and conclusions of law or designating the basis of its ruling. The trial court, however, is not required to make such rulings. State v. Rivenburgh, 933 S.W.2d 698, 702 n. 1 (Tex.App.-San Antonio 1996, no pet.). We are aware that the trial court, by refusing to make findings of fact, may, in effect, thwart the State’s right to appeal a suppression ruling.

However, there is no statutory requirement or other precedent for requiring the trial judge to make such findings. In State v. Ross, the State argued that trial courts could insulate their rulings on motions to suppress by merely not filing findings of fact. 32 S.W.3d at 858. The Court of Criminal Appeals responded by stating: Our holding does nothing to limit the State’s right to appeal under

article 44.01(a)(5). The State is just as free to make the appeal today as it was before the decision today. If a non-prevailing party wishes to avoid the effects of these appellate presumptions, then it should attempt to get the rationale for the trial court’s ruling on the record through either a verbal explanation at the hearing or express findings of fact and conclusions of law. Ross, 32 S.W.3d at 858. However, the court did not state that the failure or refusal of the trial court to make the requested findings would be error. Despite our sympathy with the State’s plight, we are constrained by prior case law.

Accordingly, we overrule points of error ten, 11,16,17, and 22. We affirm the trial court’s interlocutory order on Guo’s motions to suppress. Justice HEDGES concurring. Justice NUCHIA dissenting. . In Cardenas, we were able to review the trial court's ruling, even without findings of fact, because the facts were undisputed, the trial court explicitly accepted the State's evidence, and it based its ruling on a specific legal issue. 36 S.W.3d at 245. Such is not the case here. The evidence was disputed, and the grounds for the trial court’s ruling are not clear.