# Dancy v. State > Court of Criminal Appeals of Texas · March 18, 1987 · 728 S.W.2d 772 URL: https://www.frixlaw.com/law-library/cases/9760533 ## Case - **Full name:** Maurice Eugene DANCY, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 18, 1987 - **Citations:** 728 S.W.2d 772; 1987 Tex. Crim. App. LEXIS 551 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** Onion, Clinton, Teague, Duncan - **Cited by:** 253 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/9760533 ## How later opinions describe it (automated extraction) - concluding that suspect was not in custody when he voluntarily accompanied officers to the police station, answered questions posed by law enforcement officials, gave hair samples, and the interview lasted about thirty-eight minutes - finding no custody when suspect voluntarily came with police to station, voluntarily answered questions, consented to give hair samples, consented to allow police to take his shoes to run print comparisons, and was arrested at conclusion of interview - explaining that when circumstances show that person acted only upon request or even urging of law enforcement and without threat that he will be taken forcibly, such person is not in custody - finding no custody when suspect voluntarily came with police to station, voluntarily answered questions, gave hair samples, allowed police to take his shoes to run print comparisons, and was arrested at conclusion of 38-minute interview - noting that misstatement in affidavit resulting from mere negligence in checking or recording facts relevant to probable cause “is beyond the pale of Franks” ## Opinion text CLINTON, Judge, dissenting. The majority holds that at the time he entered the police car to go downtown, appellant was not “restrained of his freedom of movement.” See Art. 15.22, Y.A.C. C.P. and Hardinge v. State, 500 S.W.2d 870, 873 (Tex.Cr.App.1973). Ultimately I agree with that conclusion, but I cannot agree that this ends the analysis. In my view, notwithstanding that appellant voluntarily accompanied the officers downtown, by the time he submitted to the taking of a hair sample and surrendered his tennis shoe, he found himself under circumstances amounting to “a show of authority” such that “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983). It is reasonably clear that appellant consented to go to the police station to discuss the matter of the letter jacket. At least the officers testified he entered the police car “voluntarily,” under no apparent force or show of authority. Not at all clear, on the other hand, is that he went downtown with any intent of relinquishing a sample of his hair or of giving over a shoe. The burden of proof falls squarely on the State to prove that the scope of appellant’s consent extended to these matters. See Gregg v. State, 667 S.W.2d 125, 128 (Tex.Cr.App.1984). Yet by the time appellant purportedly “volunteered” to supply this evidence against himself, he had already been subjected to “seizure” for Fourth Amendment purposes. Distinguishable from this case is Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1982) (Opinion on Motions for Rehearing), in which the defendant went voluntarily to the police station at the request of a police officer he knew. At the station he consented to be fingerprinted, and was not formally arrested until after his fingerprint was compared to one found at the scene of the crime. This Court found the defendant was not “seized” for Fourth Amendment purposes until after he gave the fingerprint exemplar. In arriving at that decision, however, the Court found significant the fact that the defendant was told he was free to leave at any time. In light of that and other circumstances, “a reasonable person would have believed that he was free to leave.” Clark, supra at 700 , citing Mendenhall, supra. By contrast, appellant herein was not told he was free to leave, and in fact he was not. At the police station he was taken into an office with three or four investigators. He was promptly given his Miranda 1 warnings. It would have been reasonable for appellant to assume he was under arrest when he was informed of his custodial rights. 2 In light of these circumstances a reason *784 able person in appellant’s position would not have concluded that he was at liberty simply to walk out. Moreover, as in Florida v. Royer, at the time appellant gave the hair sample and tennis shoe, “the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” 460 U.S. at 502 , 103 S.Ct. at 1326-27 , 75 L.Ed.2d at 239 . Here, as there, “[wjhat had begun as a consensual inquiry” as to whether or not a letter jacket belonged to appellant, “had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations,” viz: that the jacket had been stolen from him, “sought to confirm their suspicions.” 460 U.S. at 503 , 103 S.Ct. at 1327 , 75 L.Ed.2d at 240 . This “investigative procedure” was patently illegal. The only information the police had at that time was that appellant lived in deceased’s neighborhood and that his jacket, which he claimed had been stolen from him, had been found outside a window at the scene of the murder. These facts may have given rise to a strong suspicion that appellant was involved in the offense or knew something about it, but they fell well short of probable cause to arrest. Ussery v. State, 651 S.W.2d 767, 770-71 (Tex.Cr.App.1983). Appellant was therefore illegally detained when the hair sample and tennis shoe were surrendered, and any consent to their taking was vitiated. Daniels v. State, 718 S.W.2d 702, 707 (Tex.Cr.App.1986). These items should have been suppressed. Turning to the Franks v. Delaware 3 issue, the majority faults appellant for failing to pass through all the procedural hoops necessary for an appellate determination of the merits of his claim. In this context I note only that at no point did the State complain of this defect, and that in fact in its brief to the court of appeals the State conceded that the motion to suppress hearing' was conducted, in part, “to determine whether allegedly false statements, knowingly and intentionally or in reckless disregard for the truth, were included in the affidavit, and if so, whether the false statements were necessary to the finding of probable cause.” The court of appeals found that several subparagraphs of the affidavit were indeed “false,” but, without passing on whether they were deliberately or recklessly so, held that even in their absence, the affidavit supplied probable cause. Appellant now maintains that without the .allegedly infected subparagraphs, the affidavit is deficient. In reply, the State disputes this contention — and nothing more. That is the posture in which the case comes before us. That is the posture in which we should decide it. For the foregoing reasons, I respectfully dissent. TEAGUE and DUNCAN, JJ., join. . Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). . While the reading of Miranda warnings may be more indicative to a majority of this Court “of proper cautiousness than it is of the officer's intent to arrest," I daresay the typical layperson, having heard a police officer recite him his "rights,” would quickly conclude he was not free to go. That officers should demonstrate caution by exercising those "procedural safeguards” Miranda dictates "to secure the privilege against self-incrimination," must surely be considered an objective indicator that appellant “ha[d] been taken into custody or otherwise deprived of his freedom of action in [some] significant way." 384 U.§. at 444, 86 S.Ct. at 1612 , 16 L.Ed.2d at 706 . Is the reasonable man in appellant’s shoes to believe he was "in custody” for purposes of determining his rights under the Fifth Amendment, but not sufficiently restrained to invoke those he enjoys under the Fourth? . 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760533. Public record. Not legal advice.