Carrasco v. State

CLINTON, Judge,

dissenting.

Reading the majority opinion in this cause may well lead one to wonder whose petition for discretionary review this is anyway, for it is appellant’s responses to the State’s grounds for review that are one by one set up and knocked down by the majority.

We granted review to examine the following holding of the Houston (14th) Court of Appeals:

“It is clear from the testimony of the arresting officer that the search was made for the sole purpose of determining what had caused Appellant’s intoxication and not to protect evidence from being destroyed or a weapon from being seized. In fact, the officer admitted that Appellant could not seize a weapon from the luggage because the officer already had the luggage in his possession. The search of the luggage was, therefore, not incident to the arrest of Appellant and was without probable cause. Because no exigency existed, the search was unlawful.”

The thrust of our determination to grant review was to decide whether this holding is consistent with Stewart v. State, 611 S.W.2d 434 (Tex.Cr.App.1981) and its progeny, including Jones v. State, 640 S.W.2d 918 (Tex.Cr.App.1982); Snyder v. State, 629 S.W.2d 930 (Tex.Cr.App.1982) and Farb v. State, 634 S.W.2d 14 (Tex.App. — Beaumont 1982) no review history. More precisely the issue is first, the meaning and then, the applicability in the case at bar of a statement made in United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977), viz:

“Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” 1

Id., at 16 , 97 S.Ct. at 2485 , 53 L.Ed.2d at 551 .

It is that underscored phrase which must be interpreted. The Supreme Court has not elucidated it. 2 Yet, Stewart v. State, supra, at 437, and its followings have taken the statement as some kind of search incident to arrest rule in the law of search and seizure. Applying it, the Stewart Court looked to Federal cases and sorted them out categorically, much as the courts themselves had been doing, and then decided that a purse was more like a wallet than like luggage. Stewart, supra, at 437-438 . Snyder v. State, supra, seems to have upheld search of a wallet incident to arrest largely because other decisions noted in Stewart had done so — again, a determination by classification. On the other hand, Jones v. State, supra, did not undertake to put the briefcase there seized and searched in the same category other courts had in decisions discussed in Stewart , for they excluded a briefcase and attache case from the Chadwick dictum by likening such cases to luggage that is “not immediately associated with the person of the arrestee.” See Stewart, supra, 437-438 . In sum, if the Chadwick statement is now truly a rule of the law of search and seizure in this jurisdiction, its meaning remains less than lucid and its application has not been all that consistent.

A proper understanding of the Chadwick statement requires reading and harmoniz *125 ing it with Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), and its progeny. In Chimel it was stated:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.”

395 U.S. at 762-763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 . Citing Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), then only recently decided, the Court emphasized that the scope of a search incident to arrest must be strictly circumscribed in accordance with the events giving rise to the exigency, whether that be the need to seize a weapon or secure evidence.

In United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) the Court held, however, that search of the person of an arrestee is justified by events giving rise to probable cause to arrest in the first place. Case by case determination that a weapon or destructible evidence was likely to be present on the arrestee’s person when the search was conducted is unnecessary. Thus, the requirement that the scope of a search be limited by circumstances surrounding arrest was found not to apply to search of the person or, apparently, objects immediately associated with the person of the arrestee.

But, as observed in Chadwick, 433 U.S. at 16, n. 10 , 97 S.Ct. at 2486, n. 10 , 53 L.Ed.2d at 551, n. 10 , “[ujnlike searches of the person [citations omitted], searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectation of privacy caused by the arrest.” And though this observation seems to have been tempered under the limited circumstances presented in New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), the Court noted there that its holding “in no way alters the fundamental principles established in the Chi-mel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S. at 460, n. 3 , 101 S.Ct. at 2864, n. 3 , 69 L.Ed.2d at 775, n. 3 .

Thus we are confronted with two types of search incident to arrest: those of the person and property “immediately associated” therewith, which require no justification beyond a lawful arrest; and those of the area around the arrestee, including any personal receptacles to which a legitimate expectation of privacy would ordinarily inhere, “that the arrestee might gain access to ... to seize a weapon or destroy evidence.” In the instant case the court of appeals obviously felt that the search of appellant’s “luggage” fell into the latter category, and that furthermore, appellant had been effectively denied access to it by the time the search was conducted. The State now contends that appellant’s bag “is more like a purse” than “luggage,” that it was therefore “immediately associated with the person” of appellant and could for *126 that reason be searched by virtue of the arrest alone, regardless of whether appellant might gain access to it after her arrest.

Because the court below called the repository belonging to appellant “luggage” and the parties as well as the arresting officer characterized it variously as “luggage bag,” “baggage,” “bag,” “shoulder bag” and “suitcase,” we ordered it up for our own inspection pursuant to Article 40.09, § 12, Y.A.C.C.P. It is fairly rectangular in shape, its bottom measures eighteen by nine inches and it is eleven inches deep; there are zippered pockets at each end, two on one side and a single on the other; the main interior section is lined on all but one side and closes at the top by twin zippers; there are two “loop handles” midway and rings at each end for attaching a “shoulder strap.” It is undisputed that appellant regularly used the container as a repository for her “paper work” as manager of two clubs, and on the occasion in question she testified that, knowing her wrecked automobile would be towed, she “took out all the stuff from the car” and put it in the container along with the “paper work,” before the officers appeared on the scene.

Whatever it be called, “a repository for personal items when one wishes to transport them,” Arkansas v. Sanders, supra, 442 U.S. at 764, 99 S.Ct. at 2593; Stewart, supra, at 438 , does not become “immediately associated with the person” through the fortuitous circumstance that at time of arrest one is carrying that repository in hand, on one’s shoulder, across one’s back or by whatever other means and manner is necessary or convenient. So long as there is a legitimate expectation of privacy in its contents, “the owner has the right to expect that the contents ... will not, without his consent, be exposed on demand of the police,” Arkansas v. Sanders, supra, at 767-768, 99 S.Ct. at 2594-2595 (Chief Justice Burger concurring in the judgment).

Thus I would reject the State’s contention that appellant’s bag was “immediately associated with [her] person” and therefore subject to search by simple virtue of the fact of her valid arrest.

In its own confused analysis the majority never squarely addresses the State’s contention. 3 Instead it concludes that the search was valid in any event because the arresting officer never reduced appellant’s bag to his “exclusive control” — an absurd conclusion, at odds with any version of the facts, and impertinent to the question upon which we granted review. 4

I would affirm the judgment of the court of appeals and save interpretation of “exclusive control” for another day. Because the majority declines to do so, I respectfully dissent.

MILLER, J., joins.

. All emphasis is added by the writer of this opinion unless otherwisf indicated.

. Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979) extended Chadwick , and made it clear that the Fourth Amendment applies to "personal luggage" wherever its Iocation, id., at 766, 99 S.Ct. at 2594 , but did not consider “the constitutionality of searches of luggage incident to the arrest of its possessor. See, e.g., United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973).’’ Id., 442 U.S. at 764 , 99 S.Ct. at 2593 .

. Along the way the majority does disapprove of the notion that for an item to be "immediately associated with the person” there must be “actual bodily attachment."

. Thus, in ostensibly eschewing a talisman, in reality the majority creates one. After today no officer ever will have reduced an arrestee’s property to his exclusive control until the arres-tee is securely locked away.