Sullivan v. State

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Appellant’s punishment was assessed at seventy-five years’ imprisonment.

Appellant contends that the trial court erred in overruling his motion to suppress and admitting the murder weapon, a twelve gauge shotgun, into evidence at trial. He relies on the Fourth Amendment to the United States Constitution; Article 1, Section 9 of the Texas Constitution, and Article 88.23, V.A.C.C.P.

After the jury was selected, and before the reading of the indictment to the jury, the court heard evidence on appellant’s motion to suppress the murder weapon on grounds that it was obtained by an unlawful, warrantless search and seizure. The only witness to testify was the officer who conducted the search of a 1972 Cadillac and found the weapon in the trunk. After this testimony, which consists of less than nine pages in the record, defense counsel argued the evidence did not show consent, that no warrant was obtained and no exigent circumstances existed, and that appellant’s interest in the automobile was based on the fact that he had a key to the ignition on his key ring obtained prior to the search. The State made no argument in the trial court and the court overruled the motion to suppress. This preserved the issue for review. Art. 40.09(6)(d)(3), V.A.C.C.P.

Officer N. D. Emberlin testified at the hearing held on the motion to suppress. He stated that he investigated the murder of the deceased and that appellant was a suspect. Emberlin obtained the keys taken from the appellant and went to the South Dallas Auto Pound on Choice Street. 1 Em-berlin, accompanied by Officer R. C. Wagner, discovered that one of the keys on the ring fit the ignition and the doors of the Cadillac. The key, however, did not open the trunk nor would it open the glove box of the car. The murder weapon was found in the trunk.

No warrant was obtained by Emberlin prior to his search of the car and seizure of the shotgun. The State, however, contends that the search was valid because the owner of the car consented to Emberlin’s action and because appellant has no standing to challenge the search.

At the hearing held on the motion to suppress, Emberlin stated that he ascertained the registered owner’s name was Roosevelt Allen, and attempted to contact him through a long distance phone call to Houston. Allen’s mother answered the phone and informed the officer that Allen was out. Subsequent to this, Allen called Emberlin. The State’s consent to search theory rests on the following testimony about that telephone conversation elicited from Emberlin:

“Q. All right. What did Mr. Allen say to you? Just recite the conversation as best you remember it, Mr. Emberlin.

*701 “A. Well, first he wanted to know where the car was and I told him and I told him there was something that might be connected with the car that I needed to know and he asked me when I got through with it if his wife could have it back.

“Q. All right.

“A. And I said she could.

“Q. All right. When you got through with it, could his wife have it back?

“A. Yes.”

On the basis of the evidence presented on the motion to suppress we cannot conclude that the officer had the consent or permission of the owner to search the vehicle. The State has not met its burden of showing that it was given consent to search the vehicle. See, Swift v. State, Tex.Cr.App., 509 S.W.2d 586 ; Morrison v. State, Tex.Cr.App., 508 S.W.2d 827 .

On appeal the State also maintains that the appellant does not have standing 2 to challenge the search.

In Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234, at 238 , the Court stated:

“Appellant’s standing was never contested in the proceedings below. The State raises the issue for the first time in its brief upon appeal. The State should not be heard to complain of an incomplete record when its failure to dispute appellant’s standing is responsible for the deficiency.”

At the hearing on the motion to suppress, the State presented evidence on the merits of the legality of the search without contesting appellant’s standing to raise the issue. Thus, the State has waived the issue. Appellant was not put on notice that such a claim would be made, and thus was not required to present evidence on the issue of standing.

We therefore conclude that neither of the theories urged by the State to support the trial court’s ruling on the motion to suppress has merit. The search was without a warrant and does not appear from the record to have been within any of the exceptions to the warrant requirement. The search and seizure being in violation of the State and Federal constitutional protections relied on by appellant, the motion to suppress should have been granted.

The judgment is reversed and the cause remanded.

Before the Court en banc.

. The record does not reflect whether this “pound” was a police impoundment area, a lot belonging to the City of Dallas, or a private auto pound.

. We also observe that the State’s challenge to appellant’s standing for lack of connection with the vehicle is in conflict with its position on appellant’s challenge to the sufficiency of the evidence in another ground of error. On that issue the State places major emphasis on appellant’s connection with the vehicle in which the murder weapon was found. The State may not take “advantage of contradictory positions.” Jones v. United States, 362 U.S. 257, at 263 , 80 S.Ct. 725 , 4 L.Ed.2d 697 ; Brown v. United States, 411 U.S. 223 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 .