State v. Johnson

COHEN, Justice,

concurring.

I agree with my colleagues that the trial judge did not err in ordering suppression of what was seized in “search 1” and that appel-lee had standing to complain about the search of the hearse. Thus, points of error one and two are properly overruled.

Points of error three through five deal with the warrantless inventory search of the hearse. I agree that they should be overruled, but for a different reason than Justice Andell.

I agree with much of Justice Wilson’s analysis of these points. Deputy Cisneros’ testimony, corroborated as it was by Chief Murphy and by Robert Prosen, provides ample evidence of probable cause to arrest — if it was believed by the trier of fact. There is only one reason the judge could have found no probable cause to arrest, and that is that he did not believe one or more of these three witnesses. If I were the trial judge, I may have reached a different conclusion, as Justice Wilson plainly would have done. But I cannot vote to reverse on this ground without substituting my opinion of the credibility of these witnesses for that of the trial judge.

The trial court is the exclusive finder of fact in a suppression hearing, and thus, it may choose to believe or not believe any or all of any witness’s testimony. Meeks v. State, 790 S.W.2d 618, 620 (Tex.Crim.App. 1990). This is a powerful legal principle, as this case shows. It means the trier of fact may disbelieve any witness — including relatives of crime victims and unimpeached police officers. This rule applies, of course, to defendants and defense lawyers. See Messer v. State, 757 S.W.2d 820, 828 (TexApp.—Houston [1st Dist.] 1988, pet. ref'd) (op. on appellant’s mtn. for reh’g) (trial judge did not have to believe defense attorney’s unim-peached, corroborated testimony regarding her statements to client).

The trial judge may have considered the absence of testimony from Lt. Gillenwaters important. He may have considered it important that nobody from the Escort Embalming Service testified that Jay Johnson took the decedent’s body by force without consent and that no evidence showed Escort Embalming Service, whose agents must have been the victims of and witnesses to that crime, ever reported such an incident to police.

The judge may have doubted that such an event occurred and thus believed that appel-lee was arrested for a crime that never occurred. See Vicknair v. State, 670 S.W.2d 286, 287 (TexApp.—Houston [1st Dist.] 1984), aff'd, 751 S.W.2d 180, 187-88 (Tex.Crim.App.1986) (op. on reh’g). (Police offi- *294 eer’s good faith mistaken belief that crime has occurred does not justify arrest where crime has not, in fact, occurred). The judge may have believed Deputy Cisneros’ testimony (set out in the dissenting opinion) that he received a dispatch about a body being transported, instead of Cisneros’ earlier testimony about a body having been taken by force and without consent.

The witnesses to the reporting of that event, Robert Prosen and Chief Murphy, were neither neutral nor disinterested. While we may find the cold record of their testimony believable, or even compelling, I cannot escape the fact that a trial judge earns his daily bread by deciding whom to believe and not believe, and we have little authority to second guess those credibility choices. To me, at least, that is what the hundreds of cases like Meek and Messer really mean.

Finally, even if the arrest was proper, the warrantless inventory search of a closed container in a vehicle has been held to violate art. I, of § 9 of the Texas Constitution. Autran v. State, 887 S.W.2d 31, 41-42 (Tex. Crim.App.1994). The trial judge’s ruling preceded Autran , but may have anticipated it. It is unclear exactly what evidence was seized from what location in the inventory search, but the burden of proving the legality of a warrantless search is on the State.

Under this record and for all of these reasons, I am not convinced that the trial judge abused his discretion. Thus, I concur in the decision to overrule points of error three through five.

I concur separately in points of error ten and eleven, regarding whether appellee’s attorney, Dean Johnson, consented to the police viewing the property seized by the Pro-sens. I do not agree with Justice Andell that the consent issue is moot or that consent is not an exception under art. 38.23(a) to the illegal seizure of property by a private person. I believe that consent is an exception to the art. 38.23 protections against illegal seizures, whether conducted by “an officer or other person.” Nevertheless, I would hold there was no consent here because appellee never consented to the Prosens’ seizure.

Article 38.23 is probably the broadest exclusionary rule in the country, and it has existed since 1925, 36 years before Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). It prohibits the use in a criminal trial of evidence illegally seized by a private person. Here, the judge found that private persons obtained the evidence illegally-

What is the purpose of having a statute like art. 38.23 apply to a private person? It could only be to keep a private person from doing what the government cannot do and to keep the government from benefitting from the private illegality. The State cannot use evidence acquired by means of burglary or theft; therefore, the State should not be able to do indirectly what it cannot do directly, i.e., to use evidence provided by a private person who acquired it by burglary or theft. This is similar to the “silver platter” doctrine. That doctrine formerly allowed state authorities, who were then not governed by an exclusionary rule, to obtain evidence illegally and deliver it to federal authorities for use in federal prosecutions, so long as the federal agents did not participate in the illegal search but simply received the illegally seized evidence on a “silver platter.” This doctrine was abolished nationally in Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960). Article 38.23 abolished it decades earlier in Texas. We should not reinstate it here.

The trial judge could have reasonably concluded that neither Dean Johnson nor appel-lee consented to the police examining the stolen documents. If the evidence showed conclusively that either appellee, personally, or Dean Johnson, acting with appellee’s authority, had consented to such an examination, I would agree with Justice Wilson that such a consent waived any rights under art. 38.23. As far as I can determine, Dean Johnson never consented to the police examining these documents. 1 The trial judge could have concluded that it was not neces *295 sary for the police to examine appellee’s papers, either in order to return them to him or to prosecute anyone for their illegal seizure. The judge could have concluded that far from consenting to the Prosens’ seizure, Dean Johnson objected to it, sought their prosecution on account of it, and desired the return of the items without having to confront them in person, and therefore, the State should not benefit from that illegality. The officers’ examination of these papers was the involuntary consequence of the Prosens’ illegal seizure. Of course, complaining about a theft will inevitably entail exposing to the police (at least to a limited degree) the stolen property. But if a person must choose between doing nothing and allowing an illegal seizure by a private citizen to go unpunished or waiving the right to privacy by complaining of the crime to police, then art. 38.23 really gives no protection against private seizures. The silver platter doctrine would be reborn.

It is significant that we are construing a statute here, not interpreting judge-made common law. The Texas Legislature has declared the public policy of this state to be that illegal seizures by private persons are wrong. Because such seizures are wrong, property owners should be able to complain to police about them without giving up the very privacy rights that art. 38.23 was designed to protect.

. Constitutional rights are personal to each individual. If Dean Johnson had consented to the examination of the documents, there would still be the issue of his authority to waive appellee's rights.