# Brown v. State

> Court of Criminal Appeals of Texas · September 14, 1983 · 657 S.W.2d 797

URL: https://www.frixlaw.com/law-library/cases/9858494

## Case

- **Full name:** Clifford James BROWN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 14, 1983
- **Citations:** 657 S.W.2d 797; 1983 Tex. Crim. App. LEXIS 1136
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** McCormick, Clinton, Teague, Odom, Onion, Miller
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Heitman v. State, 1991 Tex. Crim. App. LEXIS 160 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9858494

## Opinion text

CLINTON, Judge,
concurring.
The answer given to the first question is correct. 1 To the second question posed by appellant the plurality quickly, broadly and irrationally responds with an erroneous answer. While it may be that the Texas Constitution does not provide “an independent basis that would support the Court’s conclusion” on original submission, 2 see, e.g., Rochelle v. State, 107 Tex.Cr.R. 79 , 294 S.W. 860, 863 (1927) (Opinion on Rehearing), still we ought not gratuitously to say that the reason there is not “an independent basis” is because we have 3 and “shall *800 continue” to interpret our Constitution “in harmony” with constructions placed on the Fourth Amendment by the Supreme Court of the United States, and thereby deprive the citizens of this State of protections against invasion of privacy reasonably flowing from Article I, § 9, and other guarantees in our own Bill of Rights. Such is a dangerous abdication of judicial duties and responsibilities as Judges of this Court.
The Commissioner’s Decision written by Judge Davidson in Crowell v. State, 147 Tex.Cr.R. 299 , 180 S.W.2d 343 (1944), the opinion being approved by the Court, does indeed set forth the two paragraphs excerpted by the plurality in the cause at bar. However, a close reading of the opinion will reveal that they are but preliminary, introductory statements that do not constitute a holding. 4 Rather, the opinion proceeds to examine separately decisions of the Supreme Court pertaining to application of the Fourth Amendment to a variety of situations 5 and several opinions of the Court under Article I, § 9 of the Constitution of Texas treating “open” or “plain” view incidents. 6 The holding is:
“We conclude that, in the instant case, the evidence as to what the officer saw transpiring in appellant's home was not obtained as a result of a search thereof, and was not, therefore, in violation of the State or Federal Constitutional guarantees.” Id., 180 S.W.2d, at 347 .
This is a far cry from a finding that “this Court has opted to interpret our Constitution in harmony with the Supreme Court’s opinions interpreting the Fourth Amendment.”
We were informed during oral argument that Crowell has not again been cited as authority for the proposition now grasped by the plurality. And a recognized scholar in the field reported as late as February 1981 that this Court has never “indicated that it will interpret article I, section 9 to mean only what the fourth amendment means,” Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 Tex.L.Rev. 191, 215. Professor Dawson explained:
“The closest the court has come to taking a position on this question is its observation in Crowell v. State, [supra], that ‘(article) I, (section) 9, of the Constitution of this State, and the 4th Amendment to the Federal Constitution are, in all material aspects, the same.’ ”
An “observation” is surely the slenderest of reeds for a plurality to cling to. There are clearer perspectives: One is historical; the other implicates consideration of public policy.
The Constitution of The Republic of Texas contained a Declaration of Rights and mandated that they “shall never be violated on any pretence whatever.” The Fifth declaration is:
“The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable searches and seizures, and no warrant shall issue to search any place or seize any person or thing, without describing the place to be searched or the person or thing to be seized, without probable cause, supported by oath or affirmation.”
With slight modifications in grammatical structure from time to time, that protection against invasion of privacy has remained essentially the same. See Article I, § 9, Bill of Rights, Constitution of the State of *801 Texas of 1876. While its origin may indeed be traced back to incidents in English and American colonial history, Interpretive Commentary, 1 Vernon’s Texas Constitution 251, surely local experiences at the hands of “military commandants,” alluded to in the Declaration of Independence of the Republic, 7 made constitutional protections even more imperative, and that the safeguards they provided be enforced. 8
Early on, if not delineated by their own precedents, out of necessity young Texas courts looked to the common law or took the law from any other reasonably acceptable source. See, e.g., Bush v. The Republic of Texas, 1 Tex. 455 (1846). There is a paucity of opinions delving into criminal law and procedure — much less search and seizure law. See White’s Criminal Procedure Annotated (1900) 13-14, Article 5; 1 Paschal’s Digest of Decisions (1872) 720-723, §§ 8577-8607. Not until 1876 did the Supreme Court of Texas define “probable cause,” and that was in a civil suit for slander, malicious prosecution and duress, Landa v. Obert, 45 Tex. 539 (1876). But the methodology is illustrative, for the court settled on that which had been found by the Supreme Court of Minnesota in Cole v. Curtis, 16 Minn. 182, 195 . Landa v. Obert, supra, at 544 .
In turn, the definition approved by the Minnesota court was taken from its stated source: Munn v. dupont de Nemours, 3 Wash. C.C. 31, 9 4 Hall.Law J. 102, 1 Am. Lead.Cas. 200, 17 Fed.Ca. 993 10 (Case No. 9,926, Circuit Court, D. Pennsylvania, May 1811). This action originated in a Pennsylvania state court, but was removed to federal circuit court on petition of de Nemours et al. See Munn v. de Nemours, 2 Wash. C.C. 463, 17 Fed.Cas. 999 (Case No. 9,931, Circuit Court, D. Pennsylvania, April Term, 1810). It is a suit for malicious prosecution. What is reported is the charge given the jury by Justice Washington, and therein appears a definition of probable cause, viz:
“What then is the meaning of the term ‘probable cause?’ We answer, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offense with which he is charged.” Id., Fed.Cas. at 995.
Many federal and state decisions that later noticed Justice Washington’s definition of probable cause are listed in headnote 4. One is Boyd v. Mendenhall, 53 Minn. 274 , 55 N.W. 45 (1893), adverting to its own earlier opinion in Cole v. Curtis, supra, which, it will be recalled, had cited Munn v. de Nemours, supra. 11
Thus, when the Supreme Court of Texas imported a definition of probable cause from a sister state to apply in the malicious prosecution part of the cause being decided in Landa v. Obert, supra, that it had originated in a federal trial court did not mean the Supreme Court had “opted” to follow an expression of federal law, but only the Supreme Court looked around and found elsewhere what it deemed to be a reasonably acceptable definition, having none of its own making at the time. It and other courts in this State would continue that methodology.
As already indicated, circumstances of the times and strongly held popular senti *802 ments influence constitutions, statutes and, yes, courts in developing the law. In Texas the prohibition movement came to have a significant impact on our law of search and seizure, 12 and to those developments I now turn.
Prohibition forces were successful in having the convention include in the Constitution of 1876 a local option provision, Article XVI, § 20. See Interpretive Commentary following § 20. After implementing legislation had been enacted, areas of “prohibition territory” were created pursuant to local option laws. In time, however, being given to understand that “the will of the people is [being] thwarted and the local option laws of this state are ... made ineffective,” the Legislature acted to eradicate what the Court characterized as a “crying [public] evil,” Hughes v. State, 67 Tex.Cr.R. 333 , 149 S.W. 173 , 180 13 (1912). Excessive measures to the same end were commonplace, and Judge Roberts identified many of them in Gillett v. State, 588 S.W.2d 361, 368 (Tex.Cr.App.1979) (Dissenting Opinion). Resisting legislative enactments, some citizens soon found themselves in a courtroom litigating validity of one or another statute. They invoked, inter alia, Article I, § 9.
Initially the Supreme Court of Texas held unconstitutional an act authorizing the issuance of warrants to search places wherein intoxicating liquors were kept for sale in violation of law and to seize and confiscate the liquors. Dupree v. State, 102 Tex. 455 , 119 S.W. 301 (1909). The Supreme Court took guidance from many sources, including the Supreme Court of the United States, which construed similar constitutional provisions, as well as the Fourth Amendment. Id. 119 S.W. at 304-305 .
Soon the Court was confronted with the problem of a Western Union agent who had been held in contempt for refusing to produce before a grand jury telegraphic messages ordering intoxicating liquors to Baird. Ex parte Gould, 60 Tex.Cr.R. 442 , 132 S.W. 364 (1910). Noting that the question had never been presented before the courts of Texas, the Court pointed out that it had, however, “received attention in sister states ... where like constitutional provisions are in force ... and that the Constitution of the United States embodies practically the same language upon this subject, the fourth amendment...,” id. 132 S.W., at 366 . Accordingly, Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886)—“a very able opinion” — was examined at length, as were opinions from other states, along with Dupree v. State, supra. The Court concluded that Gould was not required to obey the subpoena, and ordered his discharge.
Prohibitionists coupled more personal efforts with their legislative program. 14 They formed local chapters of the “Law and Order League” whose members pledged “to do all in my power” to “secure convictions in all cases wherein persons are charged with violating the law, especially the local option law,” naturally including serving on juries. See Counts v. State, 78 Tex.Cr.R. 410 , 181 S.W. 723, 725 (1916) and Deadweyler v. State, 57 Tex.Cr.R. 63 , 121 S.W. 863, 865 (1909). That some joined peace officers in searching for and seizing intoxicating liquor is demonstrated by opinions of the Court cited by Judge Roberts in Gillett v. State, supra, at 368.
Which brings us to Rudolph Welchek driving down a roadway in Brazoria County on April 22, 1921. After waiting for and watching him drive by, the Sheriff, “accom *803 panied by a number of other gentlemen,” stopped Welchek, conducted a warrantless search of his automobile and seized three one gallon jugs of whiskey. Welchek v. State, 93 Tex.Cr.R. 271 , 247 S.W. 524 (1923) —a unanimous opinion written by Judge Lattimore for the Court composed of Presiding Judge Morrow, Judge Hawkins and himself.
Presaging importance of the remarkable opinion about to be given, Judge Lattimore noted:
“The question of search and seizure is now being raised in nearly all liquor cases tried in this state if the facts at all justify the defense in interposing objections relating to such question. Said question is squarely raised in the instant case.” 15
Then he crafted the framework of the opinion:
“In determining the issues thus raised we decline to be drawn into a discussion of any federal authorities cited in behalf of the appellant, or into any criticism of same unless the question before us is in some way a federal question, and therefore subject to review at the hands of the Supreme Court of the United States, or unless the authorities cited be directly pertinent to the questions involved and be antagonistic to our own views.”
With that understanding the Court quickly dismissed Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), Weeks v. New York, supra, and Gouled v. United States, supra, cited ante in note 14, in that there is no “analogy of principle existing between the law governing the taking of private papers, the undeniable property of the owner, and the law governing a case in which the article seized is intoxicating liquor in which no property right inures under the express laws of this state,” 247 S.W. at 526 .
Amos v. United States, 255 U.S. 313 , 41 S.Ct. 266 , 65 L.Ed. 654 (1921) proved to be more troublesome, however, since it did involve a warrantless seizure of liquor. The Court first pointed out that Amos “advances no reasons applicable to a prosecution under our state laws and' procedure,” but conceding that “the subject matter ... is similar,” Judge Lattimore wrote for the Court:
“[W]e respectfully state that we think the opinion in said case rests upon a misapprehension of the purpose of the federal Constitution, which is substantially the same as section 9, art. 1, of our state Constitution, and that the learned court was not justified in applying to the decision of the facts before it in the Amos Case, supra, the principles announced in the Weeks and Boyd Cases, supra. This court can in no event follow such an extension of the principle involved in said cases as appears in the attempted application thereof in the Amos Case, supra.”
Then the Court examined Adams v. New York, 192 U.S. 585 , 24 S.Ct. 372 , 48 L.Ed. 575 (1904) against Weeks v. New York, supra, opined that “the reasoning and conclusion reached by the court in the Adams Case appeal more to our judgment than that announced in the Weeks Case later,” and concluded:
“We entertain the most profound respect for the opinions of the Supreme Court of the United States, and feel ourselves obligated to follow them in all cases involving any federal question, and also in all other cases where their judgment is at all compatible with our own judgment as to what disposition should be made of questions arising under our state laws and procedure.”
Welchek, supra, 247 S.W. at 528 . Weeks was found incompatible:
“We believe that nothing in section 9, art. 1 of our Constitution, supra, can be invoked to prevent the use of testimony *804 in a criminal case of physical facts found on the person or premises of one accused of crime, ... nor to prevent oral testimony of the fact of such finding which transgresses no rule of evidence otherwise pertinent.”
The Court explained:
“[W]hen the question is evidence of the possession of the accused of any property whose custody, ownership, or creation by him gives it weight in solving a crime, the method or manner by which such proffered testimony came before the court cannot be raised by attempted application of said section 9, art. 1, supra, ... If there is sound objection to testimony otherwise material which has been found on the person or in the possession or home of the accused, such objection must rest upon some better reason than that the accused did not consent to its taking or to the entry of such premises.”
Id., at 529.
Concluding that part of its opinion, the Court disavowed any intent to enlarge “any claim of right to enter private premises without search warrants for purposes of search and seizure;” it professed to leave the security afforded by Article I, § 9 “as secure as the bill of rights can make it,” admonishing that the right should be “held sacred by officers and good citizens,” for since infringement “may be defended against to the last limit,” the one who in-trades “does it at his peril.” 16 However, reiterated the Court:
“We again assert that we are not now deciding any question whose proper solution in any wise militates against complete preservation of every right guaranteed under the provisions of section 9, art. 1, .of the Constitution, securing freedom from unreasonable searches and seizures, but are deciding questions only relating to the admissibility of evidence.”
Id., at 529-530.
Others were not persuaded.
Legislative reaction and response to the Welchek court were swift and corrective. See Judge Roberts’ dissenting opinion in Gillett v. State, supra, at 368-369, 17 and Dawson, op. cit., supra, at 196-198. 18 It produced an exclusionary rule that was codified as former Article 727a, C.C.P. 1925 (now Article 38.23, V.A.C.C.P.) and in a separate act made it a penal offense to search without a warrant. 19
As originally introduced the bill that became Article 727a excluded evidence obtained in violation of the Constitution or laws of the State of Texas and, concomitantly, its emergency clause declared “that there has been used against citizens of this state evidence obtained in violation of the Constitution of the State of Texas and that there is now no statute expressly forbidding the same...” 20 By amendment after “Texas” was inserted the words “or of the United States of America.” Thus, as finally enact *805 ed, the statutory exclusionary rule required Texas courts to hold inadmissible any evidence obtained in violation of State or Federal Constitutions or laws. 21
The statutes quickly affected the Court. 22 One of the first cases providing the Court with an appropriate opportunity to examine them is Odenthal v. State, 106 Tex.Cr.R. 1 , 290 S.W. 743 (1926, 1927). 23 The conviction was for unlawful transportation of intoxicating liquors, the offense having occurred prior to the effective date of the 1925 enactments. On original submission an opinion handed down March 24,1926 took notice that Articles 727a and 4a were in effect at time of trial, but the Court did not deem it necessary to discuss them “for the reason that the search and seizure revealed by the present facts seem authorized by both the state and federal laws,” id., 290 S.W. at 745. A state statute was cited for the former and the Court pointed to a part of the opinion in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 68 L.Ed. 543 (1925), for the latter.
On rehearing, however, the judgment was reversed January 12, 1927. 24 Each Judge wrote a separate opinion. The leading one by Presiding Judge Morrow revisited Carroll v. United States, supra, referred to decisions of other states and, finding on the subject of “probable cause” that “the uniform rule controlling the state courts in the holding the seizure legal, as well as those holding it illegal, is in consonance with the announcement in Carroll v. United States, supra,” Judge Morrow concluded:
“Evidence of facts showing ‘probable cause,’ as named in the Constitution and statute and defined by the courts, is wanting. As the record comes before this court, it is void of any foundation for the search other than mere suspicion, and was therefore contrary to the provisions of the Fourth Amendment to the federal Constitution, and to section 9, article 1, of the state Constitution.”
Odenthal v. State, supra, 290 S.W., at 748. 25
With the opinion on rehearing in Oden-thal the Court also delivered opinions in *806 Battle v. State, 105 Tex.Cr.R. 568 , 290 S.W. 762 (1927) and Whitworth v. State, 105 Tex. Cr.R. 641, 290 S.W. 764 (1927); both upheld automobile searches upon a finding of probable cause within the meaning of Article I, § 9. Battle v. State first stated that definition the Supreme Court of Texas had borrowed from Minnesota and used in Landa v. Obert, supra, then pointed again to parts of Carroll v. United States, supra, and reiterated what had been noted in Odenthal: the “uniform rule controlling the state courts ... is in consonance with the announcement” 'in that case, which , was again paraphrased. Whitworth v. State, supra, applies only the Landa v. Obert formulation, viz:
“[A] reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the automobile is in use for the unlawful transportation of intoxicating liquor.” Id., 290 S.W., at 764.
Both Battle v. State and Whitworth v. State, supra, were written by Presiding Judge Morrow. Two weeks later in Straley v. State, 106 Tex.Cr.R. 130 , 290 S.W. 766, 768 (1927), a warrantless automobile search producing intoxicating liquor was confirmed because made on probable cause; the Commissioners’ Decision cited Battle and Odenthal v. State, supra. Similarly, February 9, 1927 the Court rendered an opinion written by Presiding Judge Morrow, agreeing that there was probable cause for a stop and search of an automobile and seizure of intoxicating liquor within the meaning of Landa v. Obert, supra; Judge Morrow alluded to the “discussion” in Odenthal, quoted from Carroll v. United States, and referred to Battle v. State, supra, and its finding of the “uniform rule controlling the state courts” et cetera, and affirmed the judgment. Plant v. State, 106 Tex.Cr.R. 330 , 292 S.W. 550 (1927). He also wrote Moore v. State, 107 Tex.Cr.R. 24 , 294 S.W. 550 (1927), in which the Court approved an arrest without a warrant since it was justified by probable cause as defined in Landa v. Obert, supra, and directed the reader to “see” Battle, Carroll v. United States and Odenthal, id., 294 S.W., at 551. See also Hunter v. State, 108 Tex.Cr.R. 337 , 300 S.W. 63 (1927).
Without belaboring the point that those 1927 decisions upholding or overturning warrantless arrests, searches and seizures firmly established in Article I, § 9 of the Bill of Rights of this State the Landa v. Obert definition of “probable cause” 26 while also recognizing a similar federal definition under the Fourth Amendment, Hurst v. State, 111 Tex.Cr.R. 245 , 13 S.W.2d 95, 96 (1928, 1929), I suggest that in doing so the Court generally — and in Crowell v. State, supra, upon which the plurality now relies, the Court particularly — engaged in the very kind of examination mandated by the Legislature. That is, it looked to see whether evidence to which objection was made had been obtained in violation of the Constitution or laws of the State or of the United States, respectively. I further suggest that its application of the new statutory exclusionary rule of evidence gave robust vitality to Article I, § 9, independently of the Fourth Amendment, and that it remains viable in its own right. 27
The sophistry indulged in by the plurality would have this Court, and also the courts of appeals, await some kind of “mandate” *807 to interpret and construe provisions of the Constitution of this State, especially its Bill of Rights, in our own lights. Meanwhile, we are to “continue on this path,” following steps that two Justice of the Supreme Court of the United States say are “toward ‘balancing’ into oblivion the protections the Fourth Amendment affords,” Michigan v. Long, - U.S. --, 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983) (Brennan, joined by Marshall, dissenting).
Merely to parrot opinions of the Supreme Court of the United States interpreting the Fourth Amendment is to denigrate the special importance our Texan forebearers attached to their rights to privacy and other guarantees vouchsafed by the Bill of Rights they first declared and then insisted on retaining in every successive constitution. The legislative reaction to Welchek in 1925 —surely a “groundswell,” if not a tidal wave sweeping over the Judicial Department — and its response to the tides of reversals in 1929 are statements of public policy that the Legislature not only reiterated but also additionally implemented when it enacted the current code of criminal procedure. Article 38.23, V.A.C.C.P., and see Special Commentary and Historical Note following. All of that is “mandate” enough for this Court to function in the role constitutionally assigned to it and each of us who serve it. 28
Accordingly, while answers given by the plurality may well be correct, I completely reject its reading of Crowell v. State, supra, and its gratuitous abdication of the duties and responsibilities of this Court.
Therefore, I join only the judgment of the Court.
ONION, P.J., and MILLER, J., join.
.What was questioned in Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981) was “the sole argument advanced by the State that the green balloon seized was in ‘plain view’ incident to a lawful arrest,” id., at 200 . In finding that it was not we opined that the “immediately apparent aspect is central to the plain view exception and is here relied on by appellant,” ibid. Little did we anticipate that a majority of the Supreme Court would come to regard its phrase “immediately apparent” to be such “an unhappy choice of words,” Texas v. Brown, - U.S. -, 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983), that a different aspect must be substituted for it.
. All emphasis is added throughout by the writer of this opinion unless otherwise indicated.
. As shall be demonstrated, most untenable is validity of the proposition that since the “pronouncements in Crowell v. State, supra ... this Court has opted to interpret our Constitution in *800 harmony with ... Fourth Amendment” interpretations by the Supreme Court.
. The question presented by the facts was “solely whether the evidence was obtained as a result of a search of the residence,” Crowell v. State, 180 S.W.2d at 346 .
. They are the “open field” doctrine of Hester v. United States, 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 (1924); the now discredited wiretapping case of Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 , 66 A.L.R. 376 (1928) and use of detectaphone in Goldman v. United States, 316 U.S. 129 , 62 S.Ct. 993 , 86 L.Ed. 1322 (1942).
.Though opinions have rarely noted it, there is a legal distinction between a justified seizure under the “plain view” doctrine and a simple observation of material that is in “open view.” See Texas v. Brown, — U.S. at -, 103 S.Ct. at 1541, n. 4.
. In full that grievance charged that the government had
“suffered the military commandants, stationed among us, to exercise arbitrary acts of oppression and tyranny, thus trampling upon the most sacred rights of the citizen, and rendering the military superior to the civil power.”
. For good measure when it came to enact a complete code of criminal procedure, the Legislature incorporated virtually verbatim the constitutional language, Article 5, O.C. 1856. It is now Article 1.06, V.A.C.C.P.
. Apparently this is the first publication from manuscripts of Bushrod Washington, Associate Justice of the Supreme Court of the United States, done under the supervision of Richard Peters, Jr., Esq. See 17 Fed.Cas. 993, n. 1.
. While none is easily available, the writer finally found the report in the Federal Cases series of collations by West Publishing Co.
. The Minnesota court called it Munns v. Dupont, but gave a correct citation and specifically mentioned Justice Washington.
. Bubany and Cockerell, Excluding Criminal Evidence Texas-Style: Can Private Searches Poison the Fruit, 12 Texas Tech Law Review 611, 615, n. 22: “The problems in Texas concerning search and seizure are a product of the era of ‘noble experiment’...”
. Inveighing against express companies and their agents, Judge Pendergast charged that they were defying and nullifying state prohibition laws “to such an extent as to become a stench in the nostrils of all law-abiding and order-loving citizens, whether they were in favor of or against prohibition.”
.Among others, Acts 1919, 36th Leg., 2nd C.S., p. 228, ch. 78, the “State-Wide Intoxicating Liquor Prohibition Law.”
. Patently counsel for Welchek had read Weeks v. New York, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914) and Gouled v. United States, 255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 (1921), for he raised the question by pretrial motion that the liquor be returned to his client and that testimony by officers as to finding and seizing it be suppressed; after his motion was denied he excepted and later objected when liquor and testimony were offered in evidence. 247 S.W. at 526 .
.The same thought had earlier been expressed by the Court in Rippey v. State, 86 Tex.Cr.R. 539 , 219 S.W. 463 (1920):
“We might further observe that it is permissible under all our laws to enter houses to search for and seize stolen property, the same not being an unreasonable search or seizure... When such entry is over objection, same can only be allowed when in accordance with prescribed forms, such as search warrants, etc.; and any person undertaking such entry without color of law therefor does so at his peril and at risk even of life; but such entry, if without force is not made penal by any law, and, when by reason thereof the finding of stolen property results, the fact of such finding is probable, and, if it affects the accused, he may not avoid this merely by asserting that he gave no consent to such entry.” Id., 219 S.W. at 467 .
. “We have expressly noted that the intent of the 39th Legislature was to change the Wel-chek rule when it enacted two statutes, one of which was the predecessor of Article 38.23. Odenthal v. State, 106 Tex.Cr.R. 1 , 290 S.W. 743, 748-749 (1927).”
. “Thus, the legislature in 1925 enacted two distinct provisions in response to Welchek , one making a warrantless search a criminal offense and another excluding evidence illegally seized.”
. See former articles 4a and 4b, C.C.P. 1925, which would be repealed in 1929.
. Acts 1925, 39th Leg., ch. 49, p. 186, § 2.
. In 1929 the Legislature deleted any reference to “laws” of the United States.
. During the period of 1926-1928 Dawson has counted at least thirty four reversals bottomed on Article 727a, thirty two of which were prohibition cases. He also points out that in 1929, “despite the flood of reversals under article 727a, the legislature refused to repeal the exclusionary rule and instead reenacted it with only a minor narrowing of its scope,” id., at 201-202.
(The “noble experiment” was failing fast: Repeal of the eighteenth amendment was just around the comer.)
. The Court twice refused to apply the exclusionary rule to illegally obtained evidence admitted in trials of the same accused before the effective date of Article 727a, and continued to adhere to the Welchek formulation. Harrison v. State, 102 Tex.Cr.R. 385 , 278 S.W. 430 (1925); and Harrison v. State, 103 Tex.Cr.R. 21 , 279 S.W. 455 (1926); see also Chandler v. State, 103 Tex.Cr.R. 311 , 280 S.W. 817 (1926).
. Meanwhile, a conviction for possession of intoxicating liquor for sale had been reversed in an opinion by Judge Lattimore because the affidavit on which the search warrant was sworn to by one person, when the statute required two, and nothing in the affidavit showed that the private dwelling to be searched was used for any purpose other than that. Without even identifying it, Judge Lattimore wrote:
“The search was on July 23, 1925. The statute rejecting evidence obtained by any officer by illegal search went into effect June 19, 1925. Giving application to said statute, under the above facts, it seems obvious that the learned trial judge fell into error in admitting the testimony for which error to judgment must be reversed.”
Foster v. State, 104 Tex.Cr.R. 121 , 282 S.W. 600 (1926).
.Judge Morrow then went on to find that “the obvious purpose of the Legislature” in enacting what became Article 727a and the other statutes was “to change the rule of evidence announced by this court in the case of Welchek v. State...,” id., 290 S.W., at 748, and applied them to exclude fruits of the search at issue. Judge Hawkins concurred, while Judge Lattimore dissented.
The next week Presiding Judge Morrow and Judge Hawkins reversed roles: Judge Hawkins wrote the lead opinion that is practically a mirrorimage of the new law Presiding Judge Morrow had pronounced in Odenthal with respect to Welchek being changed by the Legislature; Presiding Judge Morrow concurred; Judge Lattimore continued to dissent. Sherow v. State, 105 Tex.Cr.R. 650 , 290 S.W. 754 (1927).
. There are literally scores of like decisions reported in volumes 295 and 296 S.W. Early the following year, a Commissioners’ Decision found trial error in admitting fruits of a comparable search and seizure for want of probable cause, quoting from Battle and the full definition of Landa v. Obert. Gunther v. State, 109 Tex.Cr.R. 408 , 4 S.W.2d 978, 979 (1928). See also Silver v. State, 110 Tex.Cr.R. 512 , 8 S.W.2d 144, 146 (1928).
. That our conclusion on original submission may not be justified by prior opinions of the Court relative to “probable cause” for seizures under state law — compare Rochelle v. State, supra, with Tendia v. State, 111 Tex.Cr.R. 627 , 13 S.W.2d 849, 851 (1927) (Opinion on Rehearing) and Walker v. State, 136 Tex.Cr.R. 460 , 125 S.W.2d 1047 (1939)—poignantly attests to the separate life of Article I, § 9. They were all decided long before Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971).
. See, e.g., Howard v. State, 617 S.W.2d 191 (Tex.Cr.App.1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9858494. Public record. Not legal advice.