Oles v. State

JOHNSON, Judge,

concurring.

I concur in the judgment of the Court. I write separately to express reservations about the breadth of the holding.

The majority first considers “whether an arrestee retains any expectation of privacy in clothing lawfully taken and inventoried by police incident to arrest.” Ante, at 106. The majority concludes that arrestees do retain some level of privacy in such situations, and then holds that there is no reason to have a different result here than in cases in which a search incident to arrest leads to discovery of a firearm or controlled substance, which would not be suppressed. Id. at 106. However, there are significant differences between those cases and the instant case, including the obvious distinctions of being a search rather than a seizure, not being incident to arrest, not being an inventory search, and not being a gun, drug, or other easily-seen evidence, which may lead to different results.

A critical question is whether the search of appellant’s clothing 1 eight days after his arrest was incident to his arrest. The majority initially compares this case to *113 Marquez v. State, 725 S.W.2d 217 (1987), in which this Court held that “[t]he war-rantless seizure of a suspect’s clothing subsequent to legal arrest, while in custody or detention is permissible.” Id. at 284 . While Marquez demonstrates that the seizure of a suspect’s clothing upon arrest was legitimate, the question in the instant case is whether the search of appellant’s clothing eight days later was permissible.

The majority also cites Edwards, in which the Supreme Court upheld a war-rantless seizure of defendant’s clothing approximately ten hours after arrest, when substitute clothing became available. See id. at 107; United States v. Edwards, 415 U.S. 800, 801 , 94 S.Ct. 1234, 1236 , 39 L.Ed.2d 771 (1974). As in Marquez , the Edwards Court based their holding on the “plain view” doctrine. Ante, at 107. However, there was no such “plain view” evidence of blood on appellant’s clothing or shoes in the instant case.

Based on Marquez and Edwards , it is apparent that the seizure of appellant’s clothing upon arrest was legitimate. However, the search of appellant’s clothing was not performed until eight days after his arrest, although such delay does not automatically render the results of the search inadmissible. “[A]n incidental search can be delayed and conducted after the suspect has been jailed, at least if there is some reasonable basis for doing so.” McCormick on Evidence § 172 at 489 (3d ed.1972) (citing Edwards). The question thus becomes whether there was a reasonable explanation of the delay of eight days sufficient to justify finding that the search of appellant’s clothing was performed “incident'to arrest.” The state offered no such explanation, nor did the state attempt to justify the search by probable cause to believe that the clothes were evidence, or that exigent circumstances existed.

As noted by the majority, the standard by which an appellant must prove a legitimate expectation of privacy includes (a) that by his conduct, he exhibited an actual subjective expectation of privacy; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Ante, at 108.

I agree with the majority’s conclusion that society may not recognize as objectively reasonable any expectation of privacy which appellant may have. I am concerned that the majority requires appellant to show an expectation of privacy in a manner that the state prevents. In the circumstances of the instant case, being in state custody prevented appellant from exhibiting an actual subjective expectation of privacy in his clothing. The court of appeals suggests that appellant could have shown such a subjective belief by asking friends or family members to retrieve his clothing at the detention facility. However, by doing so appellant would create exigent circumstances, thus justifying the search he seeks to prevent. Additionally, such practice may allow for different treatment of similarly situated inmates, depending upon whether they have friends or family members willing and able to retrieve their clothing.

A better practice would be to encourage law enforcement officials to secure a valid search warrant before searching appellant’s clothing, either physically or by scientific testing, subsequently to a search “incident to arrest.” There appears to be no reason why a search warrant could not have been obtained. Appellant was in custody, thus there was no exigency preventing the state from obtaining a search warrant. The testing of appellant’s clothing was not performed until January 19, 1995, eight days after his arrest on January 11, 1995. Surely this was sufficient time to secure a warrant, especially since both a search warrant and court order were properly obtained on two other occasions in the instant case.

During the suppression hearing, Officer Tabor, a detective -with the Harris County Sheriff’s Department, testified that he had obtained a search warrant for appellant’s *114 blood. He further testified that the warrant was signed by a magistrate on January 12, 1995, one day after appellant’s arrest. However, based upon the underlying exhibit, it appears that the magistrate actually signed this warrant on January 27, 1995, after the testing of appellant’s clothing. This conclusion is supported by the inclusion of the results of those tests in the allegations in the application for the search warrant. The Harris County District Attorney’s Office used a separate court order to obtain a sample of appellant’s hair. Like the search warrant application, the motion supported the request for the order with allegations that “blood on [appellant’s] shoe ... was determined to be consistent with that of the complainant through DNA analysis.” Given that the state twice sought judicial authorization of other searches, it could not have been unreasonably onerous to seek judicial authorization of the delayed search of appellant’s clothing. Securing a search warrant for the testing of appellant’s clothing seems to be little enough to ask to ensure the integrity of the investigation and to forestall a challenge such as this.

Finally, finding that it is “doubtful in these situations that any appellant would harbor a subjective belief that inventoried items are still private to him” and that it is “nearly certain that society would not recognize this belief as objectively reasonable,” the majority concludes that “[t]his inevitably leads to the conclusion that it is proper for police to examine and test clothing validly within their control and custody, regardless of the existence of probable cause or exigent circumstances.” Ante, at 109. While examination of this appellant’s clothing may have been justified, I think it is necessary to look at the circumstances of individual cases rather than rely on such a broad generalization. As the Supreme Court stated in Edwards, “the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case.” Edwards, 415 U.S. 800 at 802 , 94 S.Ct. 1234 at 1236 , 39 L.Ed.2d 771 . (Emphasis added.)

With these comments, I concur in the judgment of the Court.

. References to appellant’s clothing include his shoes.