# Oles v. State > Texas Court of Appeals, 1st District (Houston) · March 5, 1998 · 965 S.W.2d 641 URL: https://www.frixlaw.com/law-library/cases/9673199 ## Case - **Full name:** Melvin OLES, Appellant, v. the STATE of Texas, Appellee - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** March 5, 1998 - **Citations:** 965 S.W.2d 641; 1998 Tex. App. LEXIS 1367; 1998 WL 95098 - **Precedential status:** Published - **Opinion:** Dissent by Andell - **Judges:** Schneider, Taft, Andell, O'Connor, Cohen, Mirabal, Wilson, Hedges, Nuchia - **Cited by:** 12 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/9673199 ## Opinion text ANDELL, Justice, dissenting. The issue on appeal is whether the State can, without a warrant, search appellant’s clothing in furtherance of an investigation for a different offense from the one for which he was arrested. In this issue of first impression, I would sustain point of error one and reverse and remand for trial as to both the guilt and punishment stages. The majority correctly writes that the test for legitimate expectation of privacy includes two inquiries: (1) whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy and (2) whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as (objectively) reasonable. Smith v. Maryland, 442 U.S. 735, 741 , 99 S.Ct. 2577, 2580 , 61 L.Ed.2d 220 (1979); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); State v. Walden, 838 S.W.2d 342, 343-44 (Tex.App.—Houston [1st Dist.] 1992, no pet.). The burden of establishing a legitimate expectation of privacy is upon appellant. Villarreal, 935 S.W.2d at 138 . The majority then goes on to conclude that appellant failed to show that he had a subjective expectation of privacy precluding testing of his clothing for evidence of other crimes. This conclusion however, even if it were correct, does not end the inquiry. It is necessary to determine whether a person in custody has the protection of the Fourth Amendment. The mere fact that appellant was in jail does not dissolve all constitutional protection. The Fourth Amendment rule that searches and seizures may not be made without a warrant is subject to various exceptions. See United States v. Edwards, 415 U.S. 800, 802 , 94 S.Ct. 1234, 1236 , 39 L.Ed.2d 771 (1974), overruled on other grounds, United States v. Chadwick, 433 U.S. 1, 15 , 97 S.Ct. 2476, 2485 , 53 L.Ed.2d 538 (1977) (involving search of property). One exception permits warrant-less searches incident to custodial arrest and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and further “evidence of the particular crime” when a person is taken into custody and lawfully detained. See United States v. Robinson, 414 U.S. 218, 218 , 94 S.Ct. 467, 469 , 38 L.Ed.2d 427 (1973); Edwards, 415 U.S. at 805 , 94 S.Ct. at 1238 . This general exception has historically meant that a search may be made of the person of the arrestee and of the area within the control of the arrestee. Robinson, 414 U.S. at 224 , 94 S. Ct at 471 . The final constitutional question remains: was this search reasonable under the Fourth Amendment? The minimum of constitutional requirements for a warrantless search are (1) probable cause that evidence will be uncovered and (2) exigent circumstances justifying the search. See Chambers v. Maroney, 399 U.S. 42, 52 , 90 S.Ct. 1975, 1981 , 26 L.Ed.2d 419 (1970). This case presents no exigent circumstances. There was no danger that appellant would destroy the evidence, since the State had it in its custody, or that the delay in obtaining a search warrant would impair the State’s investigation. The normal booking procedure of police officers in Harris County is to take the arres-tee’s clothes and store them in the property room until the prisoner is released; the prisoner’s clothes are then returned to him, unless the clothes are needed for evidentiary purposes. In the usual course of the MRP arrest, appellant’s clothes would have been *646 stored m the property room until his release, at which time they would have been returned to him. Further, the State had no probable cause. Appellant was not arrested for the homicide offense, and there was no visible blood. Yet his clothing, without a warrant, was scientifically tested in order to detect nonvisible blood, for a crime for which there was no probable cause. The State attempts to bootstrap the legality of the MRP arrest to justify a warrantless search, greater in scope than normally to be expected, for evidence of the murder. See Westberry v. Mullaney, 406 F.Supp. 407, 412 (S.D.Me.1976), aff'd, 585 F.2d 1333 (1st Cir.1976). In light of the reason for the arrest, the testing of appellant’s clothes was unreasonable. See United States v. Mills, 472 F.2d 1231, 1234 (D.C.Cir.1972). The officers improperly used the MRP arrest to search for evidence of the murder in violation of appellant’s state and federal constitutional rights. See U.S. CONST, amend. IV; Tex. Const, art. I, § 9; TexCode CRiM. P. Ann. arts. 14.01-.06 (Vernon 1977 & Supp.1998) & 38.23 (Vernon Supp.1998). I would hold that the trial court abused its discretion in denying appellant’s motion to suppress and, accordingly, reverse and remand. I respectfully dissent to the majority’s decision to affirm. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673199. Public record. Not legal advice.