Hulit v. State

BAIRD, J.,

delivered a.dissenting opinion, joined by OVERSTREET, J.

We granted review to determine whether, under Article I, § 9 of the Texas Constitu *444 tion, there is a “community care-taking function” exception to the warrant requirement. 1 Without addressing appellant’s specific ground for review, the majority holds:

... Article I, Section 9 of the Texas Constitution was not violated by their [the police officers’] actions. We do this, not by finding that there is a community care-taking exception to a warrant requirement, but by asking whether, from the totality of the circumstances, after considering the public and private interests that are at stake, their action was an unreasonable seizure. It is not.

Ante at 437. The majority disregards the Supremacy Clause, the Fourth Amendment of the United States Constitution, and Supreme Court precedent to hold there is no actual warrant requirement under the Texas Constitution, ante at 436, only an ethereal requirement a search or seizure be “reasonable.” This is incorrect. The United States Supreme Court has interpreted the Fourth Amendment as requiring that searches and seizures be pursuant to a warrant, or a legal exception to the warrant requirement. Because art. I, § 9 of the Texas Constitution must provide at least the same protection as the Fourth Amendment to the United States Constitution, including warrants or valid legal exceptions to the warrant requirement, I dissent.

I.

The Supremacy Clause

The Supremacy Clause is a clear directive to this Court that we are bound by the United States Constitution and its interpretation by the United States Supreme Court:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Art. VI, cl. 2. See also, McCulloch v. Maryland, 4 Wheat. 316, 427 , 4 L.Ed. 579 (1819) (State law in conflict with Federal law is without effect). There are two major Supremacy Clause problems with the majority opinion.

First, it is of no legal consequence whether the Judges on this Court “... find the Supreme Court’s statements about a warrant requirement unpersuasive” (ante at 436), because we are bound by Supreme Court precedent interpreting the United States Constitution. State v. Guzman, 959 S.W.2d 631, 633 (Tex.Cr.App.1998). 2 In a unanimous opinion authored by Justice Stevens, the Supreme Court explained:

... The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.

Howlett By and Through Rowlett v. Rose, 496 U.S. 356, 371 , 110 S.Ct. 2430, 2440 , 110 L.Ed.2d 332 (1990).

The second major Supremacy Clause problem presented by the majority opinion is that because the Fourth Amendment and United States Supreme Court are clear there is a warrant requirement, the Texas Constitution must at least require the same protection. Pursuant to Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991) (discussed infra), we are free to interpret the Texas Constitution as bestowing greater protection than its federal counterpart, but we cannot interpret it as affording less protection. 3

*445 II.

Warrant Requirement

Appellant makes no argument under the United States Constitution. Instead, he relies exclusively on the protection of the Texas Constitution and argues art. I, § 9 provides greater protection than the Fourth Amendment. The majority disagrees with this contention but does not stop there. The majori *446 ty oversteps its bounds by interpreting art. I, § 9 of the Texas Constitution as affording less protection than its Federal counterpart:

It is our holding that Article I, Section 9 of the Texas Constitution contains no requirement that a seizure or search be authorized by a warrant, and that a seizure or search that is otherwise reasonable will not be found to be in violation of that section because it was not authorized by a warrant.

Ante at 436. The holding is based on the majority’s mischaracterization of the Fourth Amendment. Despite the Warrant Clause of the Fourth Amendment and Supreme Court precedent, the majority contends:

... [United States] Supreme Court cases which have held that the Fourth Amendment was intended to impose a warrant requirement are not well founded in historical fact. Insofar as Article I, Section 9 of the Texas Constitution was directed at preventing the same evil that the Fourth Amendment was intended to prevent, the history of the Fourth Amendment informs our interpretation of its meaning.

... by finding a general requirement of a warrant to which there are exceptions, the Supreme Court has created a jurisprudential mare’s nest. There are so many exceptions to the requirement that most searches and seizures are conducted without warrants and justified under one of the exceptions. Such a model of the Fourth Amendment not only makes a mockery of the supposed requirement, it interferes with a more fine-tuned assessment of the competing interests at stake. For these reasons we find the Supreme Court’s statements about a warrant requirement unpersuasive.

Ante at 435-436. This language is objectionable on many levels.

A.

First, it is axiomatic that the Fourth Amendment’s prohibition against unreasonable searches and seizures is premised on the Warrant Clause. Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973); Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967); and, Camara v. Municipal Court, 387 U.S. 523 , 528—529, 87 S.Ct. 1727, 1730 , 18 L.Ed.2d 930 (1967). 4 As precedent for this maverick position, the majority relies not on the law, but on a series of law review articles and academic treatises which may be instructive but have no precedential authority. 5

B.

Because the majority -wrongly interprets the Fourth Amendment, its conclusions are fatally flawed. As a basis for its holding, the majority proposes:

... [ijnsofar as Article I, Section 9 of the Texas Constitution was directed at preventing the same evil that the Fourth Amendment was intended to prevent, the history of the Fourth Amendment informs our interpretation of its [art. I, § 9] meaning.

Ante at 435-436. The fault in this conclusion lies in the majority’s interpretation of Fourth Amendment history. 6 The majority refers to *447 the intent of the framers of the Fourth Amendment, stating, “... historical research indicates that the Framers’ primary, if not sole, concern in drafting the Fourth Amendment was avoiding a repetition of the British colonial practice of issuing general warrants or warrants based on bare suspicion.” Ante, at 436. The majority then contends that “Supreme Court cases which have held that the Fourth Amendment was intended to impose a warrant requirement are not well founded in historical fact.” Ibid, The majority relies on legal commentaries for its position but fails to explain why those commentaries are correct and opposing views are incorrect. While the majority offers these commentaries as historical fact, my independent research discovers a myriad of opposing viewpoints, some of which specifically criticize the majority’s sources.

Significantly, the majority’s reliance on Akhil Reed Amar is suspect. Ante at 436 n. 6. One legal scholar has commented that Amar’s Fourth Amendment analyses are not only partisan but incomplete and one-sided. Morgan Cloud, Searching Through History: Searching for History, 63 U. Chi. L.Rev. 1707, 1739-1743 (1996). Another legal commentator stated:

For some, the Fourth Amendment is not one of the “respectable” provisions of the Bill of Rights. Judges may be tempted to “look the other way” when formulating Fourth Amendment rules that hamper discovery and apprehension of criminals. In spite of this temptation, judges should not rely upon Professor Amar’s judgments to narrow the substantive right that is at the core of the Fourth Amendment. Amar’s statements on the history of the Amendment neglect several historic events that undermine his legal conclusions. He provides a facile interpretation of the Amendment’s text ... (footnotes omitted).

Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U.L.Rev. 925, 973-74 (1977).

In fact, other historians have found the intent of the framers to specifically require a warrant. Specifically, the work of William Cuddihy dispels many of Amar’s theories. Id., 77 B.U.L.Rev. at 934-939. Justice O’Connor described Cuddihy’s work as “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Vernonia School District 47J v. Acton, 515 U.S. 646, 669 , 115 S.Ct. 2386, 2398 , 132 L.Ed.2d 564 (1995)(O’Connor, J., dissenting)(citing W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990)(Ph.D. dissertation at Claremont Graduate School)). 7

*448 While I cannot, at this late hour of my tenure on this honorable Court, present a complete discussion of the intent of the framers when drafting the Fourth Amendment, I cannot let go unchallenged the bold assertions proffered by the majority. The majority chooses not to rely on the plain language of the Fourth Amendment, Supreme Court precedent, and our own precedent. Instead, it relies on partisan articles, never acknowledges contrary positions, and works to deny basic civil rights to the inhabitants of Texas.

III.

Heitman v. State —New Federalism

In Heitman v. State, we were presented with the question of whether art. I, § 9 provided greater protection than the Fourth Amendment. We explained that traditionally this Court had treated art. I, § 9 the same as the Fourth Amendment. Heitman, 815 S.W.2d at 682 -88 citing Gordon v. State, 801 S.W.2d 899 (Tex.Cr.App.1990)(plurality); Johnson v. State, 803 S.W.2d 272 (Tex.Cr.App.1990); Bower v. State, 769 S.W.2d 887 (Tex.Cr.App.1989) (plurality), cert. denied 492 U.S. 927 , 109 S.Ct. 3266 , 106 L.Ed.2d 611 ; Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988) (plurality); Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983) (Opinion on Remand from the United States Supreme Court); and Crowell v. State, 147 Tex.Cr.R. 299 , 180 S.W.2d 343 (1944). The Heitman Court announced that under our system of federalism we “are free to reject federal holdings as long as state action does not fall below the minimum standards provided by federal constitutional protections.” Id., 815 S.W.2d at 682 citing Cooper v. California, 386 U.S. 58 , 87 S.Ct. 788 , 17 L.Ed.2d 730 (1967). See also, Oregon v. Kennedy, 456 U.S. 667, 681 , 102 S.Ct. 2083, 2092 , 72 L.Ed.2d 416, 428 (1982) (state constitutions can provide additional rights for their citizens); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 , 100 S.Ct. 2035, 2040 , 64 L.Ed.2d 741 (1980) (state has sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution); and, LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex.1986)(the federal constitution sets the floor for individual rights; state constitutions establish the ceiling). We held the Texas Constitution may afford greater protection than its federal counterpart. Heitman, 815 S.W.2d at 690 . 8

The majority completely misstates Heit-man as standing for the proposition that this Court can interpret art. I, § 9 as providing less protection than the Fourth Amendment:

As the Court of Appeals noted in this case, Heitman does not mean that the Texas Constitution cannot be interpreted to give less protection than the federal constitution. It only means that the Texas Constitution will be interpreted independently. See Hulit v. State, 947 S.W.2d at 709. Its protections may be lesser, greater, or the same as those of the federal constitution.

Ante at 436. As precedent for this statement, the majority relies exclusively on the lower court’s opinion in Hulit, 947 S.W.2d at 709. Not only is this statement inaccurate and violative of the Federal Supremacy Clause, it is reprehensible for the highest Court in the State of Texas to interpret our constitution in a manner which gives Texans less rights than the rest of the nation. But neither Heitman nor its underpinnings sug *449 gest this Court is free to interpret the Texas Constitution as providing less protection or fewer rights than its Federal counterpart. To the contrary, in Heitman , we clearly explained:

... we recognize that state constitutions cannot subtract from the rights guaranteed by the United States Constitution, but they can provide additional rights to their citizens. The decisions of the Supreme Court represent the minimum protections which a state must afford its citizens. ‘The federal constitution sets the floor for individual rights; state constitutions establish the ceiling.’

Heitman, 815 S.W.2d at 690 (internal citation omitted). See also, Smith v. State, 898 S.W.2d 838, 846 (Tex.Cr.App.1995); Autran v. State, 887 S.W.2d 31 (Tex.Cr.App.1994)(plurality opinion); and, Richardson v. State, 865 S.W.2d 944 (Tex.Cr. App.1993). In fact, my research does not reveal a single ease where this Court has construed our Constitution as providing less protection or fewer rights than the United States Constitution. The majority fails to cite such a ease. What was clear to a majority of this Court in Heitman is lost on today’s majority.

IV.

The “new” New Federalism

“The term ‘federalism’ in American history and law traditionally referred to the coordinate relationship and distribution of power between the individual states and the national government.” Cathleen Herasimehuk, The New Federalism: Judicial Legislation by the Texas Court of Criminal Appeals, 68 Tex.L.Rev. 1481, 1485 (1990). 9 When this Court issued Heitman , cries of “New Federalism” were heard, as were accusations that Heitman was the work of activist judges using the state constitution to expand state constitutional protections. See, e.g. Herasimchuk, supra; and, Matthew W. Paul and Jeffrey Van Horn, Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. 929 (1992)(stating that “the ball is in the court of those who assert that the two provisions [art. I, § 9 and the Fourth Amendment] address diseernibly different interests ... [i]n reality, any line of demarcation between the two constitutional provisions in terms of protection of individual rights and restrictions upon governmental authority is illusory.”). In explaining the New Federalism, opponents opined that state court judges, unhappy with the Supreme Court’s decisions limiting the rights of defendants, would invoke state constitutional protections in order to reach alternate results in conflict with the Supreme Court’s decisions.

Today, by holding “that Section 9 of our Bill of Rights does not offer greater protection to the individual than the Fourth Amendment to the United States Constitution, and it may offer less protection,” ante at 437, the majority is engaging in a “new” New Federalism by diminishing our state constitutional guarantees. The same critics of Heit-man should be equally outraged with the majority’s attempt to interpret state constitutional protections as affording less protection than its federal counterpart, in order to avoid Supreme Court precedent. If providing more rights under our state constitution is judicial activism, surely providing less rights is within that same realm. The condemnation proffered by Herasimehuk over the New Federalism applies in equal force to this Court today:

Judicial restraint should require judges to forgo legislating their own values and views of fundamental rights into their state’s constitutions ... No judge is a “philosopher-king” or “knight-errant” armed with a mandate of legislating his own values through creative constitutional interpretation, (footnotes omitted).

Herasimehuk, 68 Tex.L.Rev. at 1518.

V.

Conclusion

First year law students learn that the federal constitution sets the floor for individual rights and state constitutions establish the *450 ceiling. See, U.S. Const, art. VI, cl. 2; Heitman, 815 S.W.2d at 690 ; and, LeCroy v. Hanlon, 713 S.W.2d at 338 . By holding art. I, § 9 does not require that a search or seizure be authorized by a warrant, a majority of this Court no longer reaches for the constitutional ceiling but instead stoops to dig a constitutional basement wherein the Texas Constitution is housed below the floor of the Fourth Amendment. Texans should not have less protections than those enjoyed by the people of the other 49 states.

Believing the majority has not only failed appellant, but every person in Texas, I am duty bound to lodge this dissent.

OVERSTREET, J., joins this opinion.

. We granted appellant's second ground for review:

The Court of Appeals erred in failing to find that the trial court erred and abused its discretion in overruling the appellant’s motions to suppress evidence because there is no “community care-taking function" exception to the warrant requirement. (Entire record).

. All emphasis is supplied unless otherwise indicated.

.Judge Keller disagrees, stating: “The dissent's contention is flawed ... this Court has long recognized its ability to interpret the state constitution as providing less protection than its federal counterpart.” Ante at 439 (Keller, J. concurring). As precedent for this statement she cites Welchek v. State, 93 Tex.Crim. 271 , 247 S.W. 524, 529 (Tex.Cr.App.1922); Richardson v. State, 865 S.W.2d 944 (Tex.Cr.App.1993); and, Judge Clinton’s concurring opinion in Bauder v. State, 921 S.W.2d 696, 700 (Tex.Cr.App.1996) (Clinton, J. *445 concurring)(also relying on Welckek). But these citations do not stand for the proposition that this Court can interpret the Texas Constitution as providing less protection than its federal counterpart.

Importantly, Welchek was decided prior to Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) (Extended the Fourth Amendment exclusionary rule to prosecutions in state courts.) Therefore, when Welchek was decided, Fourth Amendment guarantees had not yet been extended to the citizenry of Texas in state court proceedings. See also, Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949). Accordingly, it was not necessary for the State Constitution to have an exclusionary rule either. Consequently, when Welchek was decided, art. I, § 9 did not provide less protection than the United States Constitution, it simply provided the same.

Subsequent to Welchek , there has been no need to interpret art. I, § 9 as having an exclusionary rule because our exclusionary rule is provided for by statute. Tex.Code Crim. Proc. Ann. art. 38.23. Commentators explain:

The Texas legislature did not, however, find the [Welchek ] court’s straightforward reasoning to be palatable as a matter of state policy.

As explained in Professor Dawson’s article on the Texas statutory exclusionary rule, when the legislature met in 1925, it immediately went to work on 'an ambitious effort to undo Welcheck [Welchek].’ The result was article 727a of the 1925 Code of Criminal Procedure, the predecessor to the current article 38.23.

Matthew W. Paul, Surmounting the Thoms of Article 38.23: A Proposed Inteipretive Guideline for the Texas Statutory Exclusionary Rule, 46 Baylor L.Rev.309, 316 (Spring 1994).

Matthew Paul also provides insight into the Welchek reasoning for the refusal to import the exclusionary rule into Texas constitutional jurisprudence: "... the principle foundation for the court’s decision was the plain language of the Texas Constitution." Ibid. In other words: "... there is no provision in the Texas Constitution which provides that unlawfully seized evidence is inadmissible in criminal trials.” Ibid. However, the same cannot be said for warrants. Art. I, § 9 provides:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Therefore, art. I, § 9, on its face, clearly intends a warrant requirement and this Court has explained

... the primary goal in the interpretation of a constitutional provision is to ascertain and give effect to the apparent intent of the voters who adopted it. ”[T]he intention of the framers of a constitution is of but little importance — the real question being, what did the people intend by adopting [the constitutional] language submitted to them?”

Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App.l993). See also, Bauder v. State, 921 S.W.2d at 708 (McCormick, P.J., dissenting).

Judge Keller also cites Richardson, 865 S.W.2d at 948 . In Richardson , we merely cited Welchek , not for its actual holding, but as an early exam-pie where this Court interpreted its own constitution independent of the federal constitution. In fact, other than the tenuous citation of Welchek (explained supra as being pre-incorporation of the Fourth Amendment to the States), the Richardson opinion makes no mention that this Court is at liberty to interpret the State constitution as affording Texans less protection.

Lastly, Judge Keller relies on Judge Clinton’s concurrence in Bauder which cites Welchek for the position this Court is free to interpret our Constitution as providing less protection. Interestingly, Judge Keller fails to point out that Clinton's position was hotly contested by Judge McCormick:

I also would use this case as an opportunity to lay Heitman to rest for good. For at least 75 years this Court generally has followed the lead of the United States Supreme Court in interpreting similar provisions of our Constitution ... There can be no question that these federal constitutional decisions strike a proper balance between the freedoms all constitutions, state and federal, are intended to secure and legitimate prosecutorial and law enforcement interests. The federalization of this State’s procedural and substantive criminal law in the 1950s and 1960s should, as a practical matter, preclude any independent State constitutional analysis ... This point cannot be overemphasized. This Court and the other state courts in the nation since the 1950s and 1960s have had to follow Supreme Court federal constitutional decisions. Heitman , in effect, allows us to disagree with the Supreme Court in finding "more protection" for criminals under our State Constitution. However, we are not free to disagree with the Supreme Court when it comes to finding "less protection" for criminals in our Constitution than that provided by the Federal Constitution.

Bauder v. State, 921 S.W.2d at 706-707 (McCormick, P.J., dissenting). Surprisingly, Judge McCormick joins the majority opinion today.

. The majority classifies this statement as "wrong.” Ante at 434 n. 1. The authority relied upon for this classification is Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). However, Teny is inapplicable because it merely established a "stop and frisk" exception to the warrant requirement.

. See, Ante at 435-436, fn. 2, 6, 7, & 8 citing Akhil Reed Amar, THE CONSTITUTION AND CRIMINAL PROCEDURE 10-13 (1997); Telford Taylor, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 41 (1969); and, Craig Bradley, Two Models of the Fourth Amendment, 83 MICH.L.REV. 1468, 1475 (1985).

. In regard to this statement, Judge Keller’s concurrence posits:

"... Judge Baird contends that the majority misinterprets the Fourth Amendment, but the Fourth Amendment is not an issue in this case, and the majority does not purport to interpret that Amendment."

Ante at 439 (Keller, J. concurring). How can Judge Keller make such a statement when the majority says: "... the history of the Fourth Amendment informs our interpretation of its [art. I, § 9] meaning." Ante at 435-436. Clearly the majority premises its position regarding art I, § 9 on its interpretation of the Fourth Amendment:

... Is there such a requirement in Article I, Section 9 [warrant requirement] of the Texas *447 Constitution? We shall examine the text of the Constitution, refer to our prior decisions, consider the history of the common law, and consider the Fourth Amendment jurisprudence.

Ante at 435.

. Justice O’Connor’s understanding of the warrant requirement, relying on the preeminent expert on the history of the Fourth Amendment, is far different than the faulty premise of the majority:

... what the Framers of the Fourth Amendment most strongly opposed, with limited exceptions ..., were general searches — that is, searches by general warrant, by writ of assistance, by broad statute, or by any other similar authority_ Although, ironically, such warrants, writs, and statutes typically required individualized suspicion, ... such requirements were subjective and largely unenforceable. Accordingly, these various forms of authority led in practice to "virtually unrestrained,” and hence "general," searches ... To be sure, the Fourth Amendment, in the Warrant Clause, prohibits by name only searches by general warrants. But that was only because the abuses of the general warrant were particularly vivid in the minds of the Framers’ generation, and not because the Framers viewed other kinds of general searches as any less unreasonable. "Prohibition of the general warrant was part of a larger scheme to extinguish general searches categorically.”

More important, there is no indication in the historical materials that the Framers' opposition to general searches stemmed solely from the fact that they allowed officials to single out individuals for arbitrary reasons, and thus that officials could render them reasonable simply by making sure to extend their search to every house in a given area or to every person in a given group. On the contrary, although general searches were typically arbitrary, they were not invariably so. Some general searches, for example, were of the arguably evenhanded "door-to-door” kind. Indeed, Cuddihy’s descriptions of a few blanket searches suggests they may have been considered more worrisome than the typical general search.

Perhaps most telling of all, as reflected in the text of the Warrant Clause, the particular way the Framers chose to curb the abuses of gener *448 al warrants — and by implication, all general searches — was not to impose a novel "even-handedness” requirement; it was to retain the individualized suspicion requirement contained in the typical general warrant, but to make that requirement meaningful and enforceable, for instance, by raising the required level of individualized suspicion to objective probable cause. See U.S. Const., Arndt. 4. So, for example, when the same Congress that proposed the Fourth Amendment authorized duty collectors to search for concealed goods subject to import duties, specific warrants were required for searches on land; but even for searches at sea, where warrants were impractical and thus not required, Congress nonetheless limited officials to searching only those ships and vessels “in which [a collector] shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed.”

Id., 515 U.S. at 669-71 , 115 S.Ct. at 2398-99 .

. Since Heitman , we have found greater protection on two occasions. Autran v. State, 887 S.W.2d 31 (Tex.Cr.App.1994) (plurality opinion); and, Richardson v. State, 865 S.W.2d 944 (Tex.Cr.App.1993).

. For a complete discussion of New Federalism see Autran v. State, 887 S.W.2d 31

(Tex.Cr.App. 1994)(plurality opinion).