holding that “a kidnapping becomes a completed offense when a restraint is accomplished, and there is evidence that the actor intended to prevent liberation and 18 that he intended to do so by either secretion or the use or threatened use of deadly force” (emphases added)
How later courts described this case
- holding that “a kidnapping becomes a completed offense when a restraint is accomplished, and there is evidence that the actor intended to prevent liberation and 18 that he intended to do so by either secretion or the use or threatened use of deadly force” (emphases added)
- holding that A secretion . . . (is) part of the mens rea of kidnapping, not the actus reus @
- holding that once the term of a guest's occupancy of a room expires, the guest loses his exclusive right to privacy in the room and the manager of a hotel may consent to a search of the room and the seizure of items found in the room
- recognizing that pursuant to the emergency doctrine, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring.
Alexander Pope once said that a man should not be ashamed to admit when he was wrong, because such an admission merely says that he is wiser today than yesterday. Thoughts on Various Subjects; published in Smft’s Miscellanies (1727). Hopefully, this is especially true for judges. For the following reasons, this opinion is such an admission and I reverse my original position.
On original submission, I was among a majority who found the search of appellant’s home illegal and reversed the judgment of the trial court. Brimage v. State, 918 S.W.2d 466 (Tex.Cr.App.1994). Four judges dissented, believing the search was permissible under the emergency doctrine. Today, the majority adopts that position. After carefully reviewing Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973), I now believe the entry into appellant’s home was permissible under the emergency doctrine.
In Corbett, supra, the police received a telephone call. The caller stated Corbett killed the victim, the body was in Corbett’s home, but Corbett would be returning to dispose of the body. The police drove to Corbett’s home and noticed a light burning. They telephoned Corbett’s home but no one answered. The police returned to the home, found the front door unlocked, entered and discovered the victim’s body. Corbett was arrested after he returned to his home and placed the victim’s body in a wooden box. Id., 493 S.W.2d at 943-944 .
At trial, Corbett attempted to suppress the evidence obtained in the searches of his home, contending the initial entry was illegal. Id, 493 S.W.2d at 945 . We noted that the practical need for quick response by public officials sometimes outweighs even the imposing right of citizens to privacy and protection from unreasonable or warrantless searches. Ibid. The Court stated the report of a homicide or the existence of circumstances in which an unnatural death could have occurred may constitute an emergency. Under such circumstances the police have the duty to act forthwith without questioning the accuracy of their information. Id., 493 *510 S.W.2d at 947 (quoting Patrick v. State, 227 A.2d 486, 489 (Del.Super.1967)).
Neither of the parties cited Corbett on original submission and apparently no member of this Court found Corbett when conducting their independent research. Nevertheless, I find it controlling. In the instant case, the investigation of the victim’s disappearance led the police to suspect appellant who had previously lured another young woman to his home and attempted to sexually assault her. The victim knew appellant and was last seen, wearing a red blouse, near his home. The evening before the search appellant stayed in a local hotel and departed without his luggage. Inside his luggage the police discovered: bloody scissors, a piece of red cloth, and cut-up pieces of women’s clothing, including a piece of pajama pants. Appellant’s uncle, Judge Bennett, broke into appellant’s home, and informed police there was evidence of a violent act in the back bedroom. Further, Judge Bennett stated he had observed a cut piece of pajama pants which appeared to match those the police recovered from appellant’s luggage. Judge Bennett told the police: “[y]ou need to get in there.”
There are circumstances which vitiate the need for quick response by the police and take the problem completely out of the emergency context. Corbett, 493 S.W.2d at 947 . Indeed, the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 393 , 98 S.Ct. 2408, 2413-2414 , 57 L.Ed.2d 290 (1978), held homicide scenes do not categorically present emergency situations. Similarly, the Corbett Court noted that police entering a house because they detected the odor of a decomposing body would not constitute an emergency. Corbett, 493 S.W.2d at 947 (Citing, Condon v. People, 176 Colo. 212 , 489 P.2d 1297 (1971)).
However, those circumstances are not extant in the instant ease. Here, the evidence available to the police at the time they entered appellant’s home indicated a possible emergency. The items recovered from appellant’s luggage indicated possible injury. Judge Bennett broke into appellant’s home and observed evidence of a violent scene, including the remainder of the pajama pants which had been discovered in appellant’s luggage. Further, Judge Bennett’s statements were consistent with an emergency in the home. In short, this is a situation where peace officers are authorized to act “forthwith upon the report of the emergency — not to speculate upon the accuracy of the report.” Corbett, 493 S.W.2d at 947 .
With these comments, I join only the judgment of the Court.
MEYERS, J., joins this opinion.