Hernandez v. State

DALLY, Judge, dissenting.

I agree with the majority interpretation of Art. 17.19, V.A.C.C.P., which requires that a warrant be issued by a judge or a magistrate. However, because I believe this interpretation represents a departure from the prior law upon which the arresting officer was entitled to rely, the fruits of the search made incident to that arrest should not be suppressed.

Analysis of this question must begin with an examination of the law which prevailed at the time of this arrest. At common law, the right of a surety to arrest and surrender the principal was viewed as practically absolute, with virtually no procedural limitations. See, e. g., Taylor v. Taintor, 83 U.S. (16 Wall.), 366, 371 , 21 L.Ed. 287 (1873). Like the present law, past Texas statutes have allowed the surety to make his affidavit and secure an arrest warrant from a judge or a magistrate. Only one case has ever directly interpreted the force of this particular requirement. In Whitner v. State, 38 Tex.Cr.R. 146 , 41 S.W. 595 (1897), the surety obtained a capias from the court clerk rather than a warrant from a magistrate. The Court held that the capias was nonetheless valid. Presiding Judge Hurt wrote that:

“If we adhere closely to the letter of the statutes as here expressed, we might *796 adopt the construction claimed by appellants, but we believe a more liberal construction should be adopted. The statutes in question are intended to facilitate the surrender of a principal by his bail, whenever they shall desire from any cause to surrender to him; and to only allow this in a felony case after indictment, when the court should be actually sitting, would afford but very little relief to the surety.”

41 S.W. at 597 .

I do not take issue with the limiting construction of this case by the majority. But the Whitner opinion itself allows the legitimate inference that, despite statutory language to the contrary, a court clerk may issue a capias if the judge is not available. Consequently, there has been no cause to suspect the lawfulness of such a procedure until now. The quoted language from Whitner has been approvingly used in construing other portions of the statute. See Wells v. State, 100 Tex.Cr.R. 73 , 271 S.W. 918 (1925). The broadest possible implication of Whitner was that a judge might be wholly unnecessary to the procedure of securing a warrant for surety surrender of a principal; and this implication was supported by McConathy v. State, 545 S.W.2d 166 (Tex.Cr.App.1977), holding that a judge has no authority to refuse the issuance of a warrant under Art. 17.19 after the requisite affidavit has been made, making issuance of the warrant essentially a ministerial act rather than a judicial function.

Whitner , together with McConathy , provided authority for the view that, despite the language of the statute, participation of the judge in the Article 17.19 warrant procedure was not mandatory. The arresting officer in this case would have been legally justified under pre-existing precedents in believing that the arrest warrant was legally valid. Under these circumstances, no useful purpose is served in penalizing the police conduct through reversal of this conviction.

In Michigan v. DeFillippo, 443 U.S. 31 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979), the Supreme Court held that an arrest made in good faith reliance on a “stop and identify” ordinance, which at the time had not been declared unconstitutional, was valid regardless of a judicial determination of its uneon-stitutionality. In that caso, the Court reasoned that the officer did have probable cause to believe the ordinance was violated and the officer was not required to anticipate that a court would later hold the ordinance unconstitutional.

This case is not analogous to a case where the arrest warrant is issued without probable cause since, in that case, the warrant is illegal from its inception. At the time the capias here was issued it was presumptively valid until this Court modified its view of the applicable law. The officer was not required to anticipate this change. Although the ordinance involved in DeFillippo was clearly unconstitutional, see id. (Brennan, J., dissenting), the Court did not require the police officer to predict that conclusion. In this case, given Whitner and McConathy , the present holding of this Court was not clearly preordained and was much less predictable than the fate of the ordinance in DeFillippo . Where this Court has given authority for one good faith interpretation of the statute, in a context unrelated to the accuracy or fairness of the trial, we should not punish the police and the public when we adopt a different position. I dissent.

Before the court en banc.