# Montelongo v. State

> Court of Criminal Appeals of Texas · February 27, 1980 · 644 S.W.2d 710

URL: https://www.frixlaw.com/law-library/cases/9776779

## Case

- **Full name:** Vicente MONTELONGO, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 27, 1980
- **Citations:** 644 S.W.2d 710; 1980 Tex. Crim. App. LEXIS 1120
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Dally, Phillips, Davis, Daly, Clinton, Miller, Teague, Odom
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776779

## Opinion text

CLINTON, Judge,
dissenting.
Concurring in the respect indicated, Justice Rehnquist said in Mincey v. Arizona, 437 U.S. 385, 405-406 , 98 S.Ct. 2408, 2420-2421 , 57 L.Ed.2d 290 (1978):
“... [T]he State of Arizona asks us to adopt a separate ‘murder scene’ exception to the warrant requirement and the Court, for the reasons stated in its opinion, correctly rejects this invitation.” 1
*717 Thus, as a matter of authoritative Fourth Amendment law, there is not, and never has been, a “murder scene exception” 2 to the warrant requirement of the Fourth and Fourteenth Amendments. 3 Therefore, in the case at bar the majority opinion on original submission mistakenly stated “the emergency or exigency rule applicable to homicide scene investigation” was “ abolished by the United States Supreme Court in Mincey v. Arizona.” The Supreme Court cannot abolish what it has never adopted.
Accordingly, there is nothing in Mincey v. Arizona that raises a question of its application — retroactively or prospectively. The Supreme Court merely decided Arizona had erred in undertaking to create new Fourth Amendment law.
I dissent.
MILLER, J., joins.
. The Supreme Court had delineated the opinion of the Supreme Court of Arizona as follows:
“... The Arizona Supreme Court did not hold that search of the petitioner’s apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather the search of a homicide scene should be recognized as an additional exception.”
*717 Mincey v. Arizona, 437 U.S. at 390 , 98 S.Ct. at 2412 . (All emphasis is mine unless otherwise indicated.)
. The “exception” was erroneously derived from a flawed extension of the doctrine summarized in Wayne v. United States, 115 U.S.App.D.C. 234, 241 , 318 F.2d 205, 212 (opinion of Burger, J.): “The need to protect or preserve life or avoid serious bodily injury is justification for what would be otherwise illegal absent an exigency or emergency.” Compare Bray v. State, 597 S.W.2d 763 (Tex.Cr.App.1980).
. In Mincey v. Arizona, supra, 437 U.S. at 395 , 98 S.Ct. at 2414 , the Opinion of the Court makes unmistakenly clear its holding, viz:
“In sum, we hold that the ‘murder scene exception’ created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments — that the warrant-less search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776779. Public record. Not legal advice.