# Pearson v. State

> Court of Criminal Appeals of Texas · July 3, 1979 · 587 S.W.2d 393

URL: https://www.frixlaw.com/law-library/cases/5051620

## Case

- **Full name:** Judith Leigh PEARSON v. The STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 3, 1979
- **Citations:** 587 S.W.2d 393; 1979 Tex. Crim. App. LEXIS 1538
- **Precedential status:** Published
- **Opinion:** Dissent by Phillips
- **Judges:** Davis, Odom, Phillips
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5051620

## Opinion text

PHILLIPS, Judge,
dissenting on the denial of appellant’s motion for rehearing en banc.
I cannot agree that Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978), is not retroactive. The Supreme Court in Mincey did nothing more than apply well-established Fourth Amendment law. The opinion in Mincey, 98 S.Ct. at 2412-2413 , states:
. The Fourth Amendment proscribes all unreasoriable searches and seizures, and it is a cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 ; see also South Dakota v. Opperman, 428 U.S. 364, 381 , 96 S.Ct. 3092, 3103 , 49 L.Ed.2d 1000 (POWELL, J., concurring); Coolidge v. New Hampshire, 403 U.S. 443, 481 , 91 S.Ct. 2022, 2045 , 29 L.Ed.2d 564 ; Vale v. Louisiana, 399 U.S. 30, 34 , 90 S.Ct. 1969, 1971 , 26 L.Ed.2d 409 ; Terry v. Ohio, 392 U.S. 1, 20 , 88 S.Ct. 1868, 1879 , 20 L.Ed.2d 889 ; Trupiano v. United States, 334 U.S. 699, 705 , 68 S.Ct. 1229, 1232 , 92 L.Ed. 1663 . The Arizona Supreme Court did not hold that the search of the petitioner’s apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather that the search of a homicide scene should be recognized as an additional exception.
Several reasons are advanced by the State to meet its “burden ... to show the existence of such an exceptional situation” as to justify creating a new exception to the warrant requirement. See Vale v. Louisiana, supra, 399 U.S., at 34 , 90 S.Ct., at 1971 ; Jeffers v. United States, 342 U.S. 48, 51 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 . None of these reasons, however, persuades us of the validity of the generic exception delineated by the Arizona Supreme Court. ., we hold that the “murder scene exception” created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments— that the warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.9 [Footnote omitted]
Mincey did not announce any new rule of law, or represent a “sharp break in the web of the law.” See United States v. Hart, 546 F.2d 798 (9th Cir. 1976). What Mincey did was mend a break in the law caused by a *397 number of cases which gradually evolved into the so-called “murder scene exception” to the warrant requirement. As pointed out in Mincey , this is not and never has been a valid exception to the warrant requirement. It appears to have evolved from cases which held that a warrantless entry into a home was justified in the event the police had reason to believe that a person was dying or otherwise in need of immediate aid. See United States v. Barone, 330 F.2d 543 (2d Cir. 1964); Wayne v. United States, 115 U.S.App.D.C. 234 , 318 F.2d 205 (1963). This is a recognized exception to the warrant requirement. See Mincey, 98 S.Ct. at 2413-2414 . Once inside, the officers may seize incriminating evidence that is in plain view, or inspect the premises to make sure that all danger has passed and the situation is under control, as these are also recognized exceptions. See Mincey, 98 S.Ct. at 2414 . But a general search of the premises for incriminating evidence, after the emergency has subsided, is not and has never been justifiable.
The majority states that at the time of the search in this case the “common law ‘exigency rule’ allowed such homicide scene investigations,” citing Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). To the extent that Brown and its isolated companions Tocher v. State, 501 S.W.2d 921 (Tex.Cr.App.1973), and Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973), authorized searches under the “murder scene exception,” they were not based on precedent and were clearly contrary to established Fourth Amendment law. It is reasonable to assume that a lawyer familiar with search and seizure law would have recognized these cases as a substantial departure from established law, and could have advised interested parties that these cases represented unsound authority.
I see no reason to retroactively apply such sparse case law that has been open to serious question since its inception. I would hold that since Mincey simply applied existing search and seizure law and stated nothing that we did not know already, it should be applied retroactively. Compare United States v. Hart, supra; United States v. Martinez, 526 F.2d 954 (5th Cir. 1976).
United States v. Peltier, 422 U.S. 531 , 95 S.Ct. 2313 , 45 L.Ed.2d 374 (1975), does not require a different result. The 9th Circuit Court of Appeals had held in Peltier that the decision in Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), holding a warrantless border search of an automobile unconstitutional, was to be applied retroactively because the decision overruled no prior Supreme Court decision and reaffirmed established law. In reversing the Ninth Circuit in Peltier , the Supreme Court noted that border searches of the type struck down by Almeida-Sanchez had been upheld by the courts for 20 years, and that the border patrol agents were acting under the express authority of a statute and long-standing administrative regulations. It concluded from this that the officers’ conduct in performing the searches and seizures was not “blameworthy.” The case law on the “murder scene exception” is sparse, of dubious origin, without statutory approval, and has been openly contrary to established Fourth Amendment law from the beginning. The conduct of the officers in this case cannot be labeled blameless.
Finally, although the Court in Peltier engaged in a general discussion of the retroac-tivity of exclusionary rule cases, Peltier did not establish a per se rule that cases which extend the scope of the exclusionary rule should not be applied retroactively. To accept it as such would be to adopt just the “mechanical approach” to the issue of retro-activity that the Court in Peltier repudiated.
I dissent to the denial of appellant’s motion for rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5051620. Public record. Not legal advice.