Brimage v. State

CAMPBELL, Judge,

dissenting.

Because I cannot agree with the plurality’s conclusion that the search of appellant’s home was illegal under the Fourth Amendment, I must dissent.

A trial court’s decision at a suppression hearing to admit or exclude evidence is subject to an abuse of discretion standard of review. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993). In the instant case, I believe the record clearly shows that the trial court did not abuse its discretion in denying appellant’s motion to suppress.

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. Amend. IV. Warrantless searches are per se unreasonable, Kelly v. State, 669 S.W.2d 720, 725 (Tex.Crim.App.1984), subject to only a few exceptions, one of which is the emergency doctrine. See Bray v. State, 597 S.W.2d 763 (Tex.Crim.App.1980). Under the emergency doctrine, “[a] warrantless search may be justified by a need to act immediately to protect or preserve life or to prevent serious injury.” Id. at 764 . That need to protect or preserve life or to prevent serious injury justifies police actions that would otherwise be illegal absent the emergency. Mincey v. Arizona, 437 U.S. 385, 392 , 98 S.Ct. 2408, 2413 , 57 L.Ed.2d 290 (1978).

Any number of situations may give rise to implementation of the emergency doctrine. W. LaFave, Search and Seizure § 6.6(a) at 702 (2d ed. 1987). The emergency doctrine may justify entry into a dwelling to seek a person who has been reported missing. People v. Wharton, 53 Cal.3d 522 , 280 Cal.Rptr. 631, 665 , 809 P.2d 290, 324 (1991). Likewise, the emergency doctrine may justify entry into a dwelling to discover evidence or a “lead” which could reveal the location of the missing person elsewhere. Chaney v. State, 612 P.2d 269, 277 (Okla.Crim.App.1980). Once legally inside a dwelling under the emergency doctrine, police may seize evidence in plain view. Bass v. State, 732 S.W.2d 632, 635 (Tex.Crim.App.1987).

In determining whether a warrantless search was justified by an emergency, we use an objective standard of reasonableness. Janicek v. State, 634 S.W.2d 687, 691 (Tex.Crim.App.1982). Under an objective standard of reasonableness, we evaluate police conduct in light of the facts and circumstances known to the police at the time the conduct at issue took place. Garcia v. State, 827 S.W.2d 937, 941, n. 2 (Tex.Crim.App.1992), citing Scott v. United States, 436 U.S. 128, 138 , 98 S.Ct. 1717, 1723 , 56 L.Ed.2d 168 (1978). This means that, in analyzing the decision of the Kingsville police officers in the instant case, to enter appellant’s residence without a warrant, we must take into account all of the facts at the officers’ disposal and determine whether those facts would warrant a reasonable officer to believe that an emergency existed.

In the instant case, the following facts were known to the police officers when they decided to enter appellant’s residence without a warrant: 1) the victim had been missing for over two days; 2) the victim was acquainted with appellant; 3) the victim was last seen on the morning of her disappearance in the neighborhood of appellant’s home; 4) the victim’s automobile was discovered in a parking lot within three blocks of appellant’s home; 5) approximately one month before, appellant had lured another female to his residence and had attempted to sexually assault her; 6) the victim was last seen wearing a red blouse; 7) the suitcase abandoned by appellant at the motel contained a piece of red cloth that appeared to be blouse material and a large pair of scissors, both of which had blood on them; 8) the suitcase also contained cut-up pieces of women’s clothing, including a portion of a pair of blue pajama pants that had been cut off; 9) according to appellant’s uncle, Judge Bennett, who, at his own initiative, broke into appellant’s home, the legs to a pair of blue pajama pants were in the master bedroom of *493 appellant’s home, along with other pieces of cut-up women’s clothing; 10) according to Judge Bennett, there appeared to have been a struggle and a “violent act” in the master bedroom.

The officers also were aware of an “extreme urgency” on the part of Judge Bennett for them to enter appellant’s home. According to Captain Gomez, Judge Bennett told him “you need to get in there.” Additionally, nothing in the record denotes that Judge Bennett indicated to Captain Gomez that his search of appellant’s home was exhaustive, so as to exclude the possibility that the victim was somewhere within.

Taking into account all of the information at the officers’ disposal when they decided to make the warrantless entry into appellant’s residence, I would conclude that those facts would warrant a reasonable officer to believe that an emergency existed. The plurality dismisses the possibility of an emergency based on the officers’ subjective thought processes, stating: “The police were not expecting to find a body at the house, much less an alive and injured victim in need of assistance.” The plurality fails to give effect to our prior case law, which clearly mandates an inquiry based on objective reasonableness. Janicek, 634 S.W.2d at 691 ; Bray, 597 S.W.2d at 765 . 1 Under such an inquiry, the subjective thoughts and beliefs of the officers are not determinative; the only consideration is whether the facts would warrant a reasonable officer in their position to believe that an emergency existed. See Garcia, 827 S.W.2d at 941 .

Even under a purely subjective analysis, however, the record contains sufficient evidence to support the trial court’s denial of appellant’s motion to suppress based on the emergency doctrine. At the suppression hearings, Captain Gomez testified as follows:

Q: Okay. You weren’t looking for — What you went in and were looking for was a body, wasn’t it?

A: No. No, sir. I was not looking — I was hoping to find the young girl alive, sir.

Q: You were looking for a person.

A: I was looking for a person, yes, sir.

⅜ ⅜ ⅜ ⅝ ⅜ ⅜

A: ... I was afraid that if [the victim] was being held against her will, somewhere, she needed to get away or [be] rescued. I didn’t know if she was in that house or not, sir.

At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight attributable to the witnesses’ testimony. Alvarado v. State, 853 S.W.2d at 23 . The trial court may believe or disbelieve all or any portion of a witness’s testimony. Id. I believe the foregoing excerpts from Captain Gomez’s testimony at the suppression hearings were sufficient evidence upon which the trial court could have based a finding that the officers’ decision to make a warrantless entry of appellant’s residence, to find either the victim or evidence leading to the victim’s discovery at another location, was subjectively reasonable under the emergency doctrine.

I would also conclude that the seizure of the victim’s body from the trunk of appellant’s parents’ automobile, located inside the garage attached to appellant’s residence at the time of the search, was justified under the emergency doctrine. The United States Supreme Court, in United States v. Ross, 456 U.S. 798, 820-21 , 102 S.Ct. 2157, 2170-71 , 72 L.Ed.2d 572 (1982), stated that “[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the *494 search.” 2 Applying this language to the facts of the instant case, the police officers who entered appellant’s home under the emergency doctrine, to look for the victim or evidence of the victim’s whereabouts, were justified in opening the trunk of appellant’s parents’ car and retrieving the victim’s body since, in searching for the victim, the officers could have reasonably believed that the victim was concealed inside. See also People v. Wharton, 280 Cal.Rptr. at 665 , 809 P.2d at 324 (officer conducting warrantless search under the emergency doctrine was justified in cutting through plastic container located inside victim’s residence and retrieving victim’s body). Additionally, the fact that, in the instant case, the container in which the victim’s body was found was an automobile does not mean that the police needed separate justification to search inside it. See People v. Powers, 173 A.D.2d 886 , 570 N.Y.S.2d 362, 364-65 (1991).

Concerning the remaining evidence seized from appellant’s residence, I would find no error regarding its admission at trial. The lawfulness of an emergency search terminates once the emergency ends. Bray, 597 S.W.2d at 764 . However, when police discover a potential homicide scene, they may undertake a prompt warrantless search of the premises to see if there are additional victims or if a killer remains on the premises. Mincey v. Arizona, 437 U.S. at 392 , 98 S.Ct. at 2413 . In the instant case, the police continued to search appellant’s residence after they discovered the victim’s body. It is unclear from the record exactly which pieces of evidence were discovered before the body was found and which were discovered afterward. However, the record reflects that each of the items seized from appellant’s residence and later admitted at the trial were found in locations which would have been in plain view of the officers when searching for additional victims, or in places in which a person could have been sequestered. Therefore, I believe there was no error in the seizure of those items.

Even assuming arguendo that some or all of the items seized from appellant’s residence, other than the victim’s body, were seized illegally, I conclude that any error arising from their admission at appellant’s trial was harmless under Texas Rule of Appellate Procedure 81(b)(2). In order for error to be construed harmless under Rule 81(b)(2), an appellate court must determine that such error was harmless beyond a reasonable doubt. Arnold v. State, 786 S.W.2d 295, 298 (Tex.Crim.App.1990). We have previously set forth the applicable standard for defining harmless error:

When determining whether erroneously admitted evidence is harmless beyond a reasonable doubt, the question is whether ... there is a reasonable possibility that the erroneously admitted evidence contributed to the verdict obtained. In other words, was there a reasonable possibility that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion beyond a reasonable doubt as to the issue in question? If the answer to the question is ‘yes,’ then the error cannot be considered harmless.

Jones v. State, 833 S.W.2d 118, 127 (Tex.Crim.App.1992) (citations omitted).

In the instant case, appellant made a written confession, which was admitted into evidence at trial. The confession related, in lurid detail, how appellant enticed the victim to his home and then, once she arrived, ambushed her and, after a struggle, strangled her. Appellant’s confession was corroborated extensively by the evidence obtained from the victim’s body. Therefore, I conclude that, assuming arguendo that some or all of the evidence discovered in appellant’s residence was obtained outside the parameters of the emergency doctrine, there is no reasonable possibility that that evidence moved the jury from a state of nonpersuasion concerning appellant’s guilt to one of persuasion beyond a reasonable doubt, given appellant’s detailed confession and the victim’s body which was legally discovered under the emergency doctrine.

I agree with the plurality that there is sufficient evidence in the record to support the kidnapping element of appellant’s capital murder conviction. However, I cannot agree *495 with the plurality’s conclusion that the search of appellant’s home was illegal. I would conclude that the trial court did not err in admitting the evidence obtained from appellant’s home. Therefore, I would not reverse on the search issue, and would proceed to address the remaining points of error.

I respectfully dissent.

McCORMICK, P.J., and WHITE and MEYERS, JJ., join.

Before the court en bane.

. Although the majority cites Bray and Janicek , apparently for the proposition that an objective standard of reasonableness should be used in determining whether to justify a warrantless search under the emergency doctrine, the following language indicates that the majority is confused about the meaning of objective reasonableness: “The State need only show [to demonstrate the applicability of the emergency doctrine] that the facts and circumstances surrounding the entry and search were such that the officers reasonably believed that an emergency existed...A truly objective analysis would focus upon what a hypothetical reasonable officer would believe, not on what the officers in the instant case actually believed. Apparently, the majority does not completely understand the difference between an objective and a subjective inquiry.

. I note that the search in Ross , as in the instant case, was conducted without a warrant.