Carrasco v. State

TEAGUE, Judge,

dissenting.

We granted the State’s petition for discretionary review, see Todd v. State, 661 S.W.2d 116 (Tex.Cr.App.1983), in order to make the determination whether the Houston Fourteenth Court of Appeals, in a unanimous opinion by Justice Sears, correctly held that the warrantless search by the police of appellant’s closed overnight bag, which has dimensions of approximately 18 inches in length and 12 inches in width, which search occurred outside of appellant’s automobile, was unlawful. See Carrasco v. State, (Tex.App. — Houston [14th] 1983). I find the court of appeals correctly held that the search of appellant’s overnight bag was unlawful and would affirm its judgment.

The evidence reflects that after appellant’s automobile collided with a stationary object on a Houston freeway, appellant was arrested by the police for public intoxi *127 cation. Prior thereto, she had removed herself and the overnight bag from the vehicle and was waiting for someone to come and pick her up when the police arrived to investigate the accident. A police officer testified that except for the lack of an alcoholic odor an intoxicated person usually has, appellant presented all the characteristics of a person intoxicated by the ingestion of alcohol. However, because he did not detect an odor of alcohol about appellant’s person, he seized and searched appellant’s overnight bag, in which he found, inter alia, three vials and a folded paper which were shown to contain cocaine, for which appellant was prosecuted for possessing. The court of appeals held that the warrantless search of the bag was neither a search incident to appellant’s lawful arrest for public intoxication nor was probable cause established that the bag contained any unlawful contraband. I agree with the decision by the court of appeals that the search of the bag was unlawful, but do so for different reasons.

In its efforts to have the search of the bag sustained, the State makes the following argument in its petition for discretionary review: “The search of the appellant’s shoulder bag was a search of an item immediately associated with the appellant’s person and the Court of Appeals mistakenly held that the search was illegal and not incident to the arrest.” The State also argues that the search was valid because inevitably the bag would have been subjected to a “routine property inventory preceding confinement” search at the station-house. It also argues that “public policy” justified the search of the bag. It asserts that the officer had the right “to determine if a medical emergency was at hand that would require immediate attention.” For reasons I will state, I am unable to agree with any of the arguments the State makes and would overrule all of them.

I summarily reject the State’s “public policy” argument because there is absolutely no evidence in the record that would support same. The record conclusively shows that the arresting officer searched the bag for evidence of intoxication. However, he also testified to conclusory statements that he also searched the bag “for possible weapons” and “for nitroglycerin.” In light of the facts that were presented in the trial court, I totally reject his concluso-ry statements.

I pause to emphasize that at the time the officer searched the bag, the bag was in his exclusive possession or under his exclusive control. At that moment in time, appellant either had been dispossessed of the bag or the police had disassociated her from the bag. In sum, she had been disseized of her bag, although such had occurred lawfully.

As to the officer’s search of the bag for evidence that might relate to appellant’s need for medical services, the officer unequivocally testified that appellant never requested any medical attention: “No, sir, if she had I would have had an ambulance [sic] look at her.” Also, other than his curiosity, there was no evidence adduced that the officer had a reasonable belief that inside of the bag might be evidence relating to appellant’s state of intoxication.

I also reject the State’s argument that the search of the bag was made pursuant to a routine inventory of the contents of the bag in preparation of appellant being “booked” and incarcerated. The facts of the case do not support such argument. Furthermore, there is no evidence that the search of the bag occurred as part of the process of appellant being taken to the station house to be booked and incarcerated. Cf. Illinois v. Lafayette, 462 U.S. 640 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983); Stewart v. State, 611 S.W.2d 434 (Tex.Cr.App.1981); Synder v. State, 629 S.W.2d 930 (Tex.Cr.App.1982); Murray v. State, 615 S.W.2d 721 (Tex.Cr.App.1981). The search of the bag occurred near where appellant was originally arrested outside of her vehicle for public intoxication, and not at the station house.

Was the search of the bag permissible as an incident to a lawful arrest? I answer the question in the negative.

There is no question but that appellant was initially lawfully arrested for public *128 intoxication. Thus, under United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), and Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), the arresting officer was authorized to search appellant’s person and the area within her immediate control for weapons or destructible evidence.

However, under the facts and circumstances of this case, this right did not carry over to him making a warrantless search of appellant’s overnight bag.

In United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977), the Supreme Court made the following holding:

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.

It is obvious to me that when the Supreme Court made this statement, it intended for the police to have the lawful right to search the arrestee’s luggage or personal property that was immediately associated with the person of the arrestee, as an incident to a lawful arrest. However, once the police had disassociated the luggage or personal property from the person of the ar-restee, and there was no longer a danger that the arrestee might or could gain access to the property to seize a weapon or destroy evidence, the Supreme Court did not intend, for Fourth Amendment purposes, that the police had the right to search luggage or personal property of the arrestee without a warrant as an incident to a lawful arrest.

In this instance, the evidence clearly reflects that when the warrantless search of appellant’s luggage took place, the luggage had been reduced to the exclusive possession or was under the exclusive control of the arresting officer. There is no evidence that at that time there was any danger that appellant could have gained access to the bag to seize a weapon from inside of the bag or could have destroyed evidence that might have been in the bag. Nor is there any evidence that had appellant been arrested solely for public intoxication, both appellant and the bag would have been taken to the station house. Nor is there any evidence that had this occurred appellant would have been booked and incarcerated in jail, and the bag thereafter inventoried by the police. The record is blank as to just what happens to a person arrested in Houston for public intoxication. Cf. Art. 14.06, V.A.C.C.P., and Art. 15.17, V.A.C. C.P.

It is now axiomatic that a person possesses a privacy interest in the contents of his personal luggage. Such interest is protected by both the federal and Texas Constitutions. Both the Fourth Amendment and Art. 1, Section 9, of the Texas Constitution “protect two different interests of the citizen-the interest in retaining possession of property and the interest in maintaining personal privacy.” Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) (Stevens, J., Opinion concurring in the judgment.)

The basic rationale for restricting a search incident to a lawful arrest is that the arrestee has a reasonable expectation of privacy which inheres to luggage “as a repository of personal effects.” United States v. Chadwick, 433 U.S. at 13 , 97 S.Ct. at 2484 . I would hold that appellant had a reasonable expectation of privacy in the contents of her overnight bag.

Recently, the Supreme Court of the United States in United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983), the “dog sniffing case,” held that the Fourth Amendment did not prohibit law enforcement authorities from temporarily detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contained narcotics. But the Court also held that the prolonged seizure that occurred in that cause was unreasonable since the police conduct exceeded the bounds of permissible investigative detention.

*129 I find that the opinion implicitly reaffirmed the above principles of law governing the right of privacy in the contents of luggage when it stated the following: “In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” 103 S.Ct. 2641 . Of course, under such circumstances, a warrantless search would also be unreasonable. However, see U.S. v. Mazzone, 782 F.2d 757 (7th Cir.1986), 38 Cr. L.Rep 2369.

I pause to point out that we are not dealing with an unopened or closed piece of luggage that had been seized from inside of an automobile and then searched at the scene, see, however, United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), and New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), but we are, instead, dealing with unopened luggage that at the time of the search had been disassociated from appellant and was then in the exclusive possession or control of the police. Also see Michigan v. Miller, 459 U.S. 1167 , 103 S.Ct. 809 , 74 L.Ed.2d 1010 (1983). Nor are we dealing with a search of luggage that was made at the station house preparatory to appellant being both booked and incarcerated. Nor are we dealing with a situation where the arresting officer had reason to believe that the luggage contained explosives or some other dangerous instrumentality. See, however, United States v. Chadwick, 433 U.S. at 15 n. 9, 97 S.Ct. at 2485 n. 9, in which the Supreme Court alluded to this exception.

In this instance, at the time the arresting officer seized appellant’s bag, the bag had been disassociated from appellant’s person. The officer did not then have even reasonable suspicion that the bag might contain contraband or explosives or some dangerous instrumentality. He searched the bag solely out of curiosity, namely, to see if the bag might contain evidence that would establish what was causing appellant to have the appearance of an intoxicated person when there was no plain view evidence to support his conclusion that she was intoxicated because of the ingestion of alcoholic beverages.

I agree with what Justice Hill of the Fifth Circuit recently stated in the concurring opinion he filed in United States v. Johnson 588 F.2d 147 (5th Cir.1979):

When exigencies can be eliminated by the exercise of the authority to immobilize luggage through a warrantless seizure, the warrantless activity must end there, and a warrant is required to search the contents of the luggage, absent some other warrant excusing exigency. Here, the warrantless activity did not cease with the seizure. Therefore, the subsequent warrantless search was invalid.

Under the facts and circumstances of this case, I would hold that before a lawful search of appellant’s luggage was permissible, it was imperative that the police first obtain a search warrant. They did not do so; thus, the warrantless search of appellant’s luggage was unlawful and the trial court erred in not suppressing the evidence seized therefrom. Also see United States v. Chadwick, supra, (closed footlocker); Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979) (suitcase); United States v. Bella, 605 F.2d 160 (5th Cir.1979) (guitar case); United States v. Vickers, 599 F.2d 132 (6th Cir.1979) (two locked footlockers); United States v. Mackay, 606 F.2d 264 (9th Cir.1979) (suitcase); United States v. Meier, 602 F.2d 253 (10th Cir.1979) (backpack); Metcalfe v. State, 593 P.2d 638 (Alaska Sup.Ct.1979) (sealed box); Liles v. State, 375 So.2d 1094 (Fla.App.1979) (satchel); Haugland v. State, 374 So.2d 1026 (Fla.App.1979) (luggage); Buday v. State, 150 Ga.App. 686 , 258 S.E.2d 318 (1979) (luggage); People v. Bayless, 76 Ill.App.3d 843 , 32 Ill.Dec. 433 , 395 N.E.2d 663 (1979) (suitcase); Pimer v. State, 45 Md.App. 50 , 411 A.2d 135 (1980) (duffle bag); State v. Gauldin, 44 N.C.App. 19 , 259 S.E.2d 779 (1979) (suitcase); *130 State v. Downes, 285 Or. 369 , 591 P.2d 1352 (1979) (trunk); State v. Groda, 285 Or. 321 , 591 P.2d 1354 (1979) (closed briefcase). Cf., however, United States v. Ross, supra.

The State urges that several decisions from this Court support its argument that the search was permissible as an incident to a lawful arrest, and asserts that the decision of the court of appeals conflicts with those holdings. I find that it does not.

Holt v. State, 538 S.W.2d 125 (Tex.Cr.App.1976), is factually distinguishable from this cause because there “the search of the suitcases was to secure the officers’ own safety and to prevent the destruction of evidence.” The opinion reflects that at the time of the search, the defendant was neither disassociated from nor had he been dispossessed of the suitcases by the police when the search occurred, i.e., the suitcases had not been reduced to the exclusive possession or control of the police when the search took place.

Stewart v. State, 611 S.W.2d 434 (Tex.Cr.App.1981), is a little more troublesome in distinguishing it from what the court of appeals held. However, after carefully reading the facts as stated in the opinion, and comparing those facts with Illinois v. Lafayette, supra, which had not yet been decided by the Supreme Court when this Court decided Stewart v. State, supra, it is obvious it is distinguishable. There, the seizure and subsequent search of the defendant’s purse that occurred in that cause occurred during the station house “booking process,” which, by the opinion, would have included incarceration of the defendant and a standard inventory of the contents of the purse for the protection of the police officers from an accusation of theft.

Synder v. State, 629 S.W.2d 930 (Tex.Cr.App.1982), is also slightly troublesome in distinguishing it from what the court of appeals held. However, I find it is also distinguishable. There, the search of the defendant’s wallet occurred in the field. It is obvious, however, from what is stated in the opinion, that the field search was the commencement of the station house booking process, which would have included incarceration and an inventory of the wallet. Thus, Stewart is controlled by Illinois v. Lafayette, supra. Also see Lalande v. State, 676 S.W.2d 115 (Tex.Cr.App.1984), in which this Court held that “once it becomes unequivocally clear that the item is to accompany the detainee, the right of inspection accrues immediately, and is not limited to inspections carried out within the station [house] itself.”

Judge Clinton expresses a desire in the dissenting opinion he has filed in this cause that this Court should interpret the meaning of the term “not immediately associated with the person of the arrestee,” which is taken from United States v. Chadwick, 433 U.S. at 16 , 97 S.Ct. at 2485 . Because of the facts of this case, and the reasons I give for striking down the warrantless search of appellant’s luggage, I find such is unnecessary in this instance. In this instance, we are not dealing with the situation where a search for items that are normally attached to an individual’s person, such as a watch, has occurred, nor are we dealing with the situation which encompasses the search of items that are found on or on the inside of a person’s clothing which normally accompany the person wherever he might go, such as a wallet or purse.

In this instance, the State did not establish that had appellant been arrested by the police solely for committing the offense of public intoxication, her overnight bag would either have accompanied her to the station house or that she would have been not only booked but also incarcerated. By a “property slip” that I have found inside of the overnight bag, which was not introduced into evidence, cf., however, Chambers v. State, 508 S.W.2d 348, 354 (Tex.Cr.App.1974), it reflects that even though it is undisputed that the bag contained a large amount of appellant’s paper work for the two night clubs she managed, there is no mention on the property slip of these contents. The only thing stated on the property slip that relates to appellant’s overnight *131 bag is that the police obtained possession of a “large leather bag.”

For the above and foregoing reasons, I would hold that appellant’s luggage, in the form of an overnight bag, was not immediately associated with her person at the time the bag was searched. I find that the court of appeals correctly held that the trial court committed reversible error by denying appellant's motion to suppress. Its judgment should be affirmed and not reversed.

I dissent to the majority opinion reversing its judgment.