Petition — Texas v. White

— 1 ae |

“FILED.

IN THE JUL 23 1975 /

SUPREME COURT OF THE UNITED) Saeetanne. nue |

OCTOBER TERM, 1974 :

a -~124

* *

STATE OF TEXAS,

Petitioner

V.

EARL ELMER WHITE,

Respondent

& * *

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

* * *

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney

Generai

JOE B. DIBRELL

Assistant Attorney General

P. O. Box 12548

Capitol Station

Austin, Texas 78711

TOM CURTIS

District Attorney

47th Judicial District

of Texas

509 Courthouse

Amarillo, Texas 79101

Counsel for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO.

STATE OF TEXAS,

Petitioner

V.

EARL ELMER WHITE,

Respondent

* a ®

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

a * x

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney

General

JOE B. DIBRELL

Assistant Attorney General

P. O. Box 12548

Capitol Station

Austin, Texas 78711

TOM CURTIS

Di.strict Attorney

47th Judicial District

of Texas

502 Courthouse

Amarillo, Texas 79101

Counsel for Petitioner

SUBJECT INDEX

Page

{ PAOLO foe 8 Be Pee a a a a a l

DOTS IS Sic ecew ew eeescanees 2

| QUESTION PRESENTED ............ 3

| CONSTITUTIONAL PROVISIONS

| ES a a 3

STATEMENT OF THE CASE:

A. GENERAL BACKGROUND...... 4

B. FACTS MATERIAL TO THE

QUESTION PRESENTED....... 4

C. MANNER IN WHICH THE

FEDERAL QUESTION WAS

a ee 6

REASONS FOR GRANTING THE WRIT ..... 2

ee 11

oo kf 13

APPENDIX A: OPINION OF TEXAS

COURT OF CRIMINAL

APPENDIX B: DISSENTING OPINION

ON STATE’S MOTION

FOR REHEARING,

JUDGE MORRISON,

TEXAS COURT OF

CRIMINAL APPEALS. ..... lb

APPENDIX C: DISSENTING OPINION

ON STATE’S MOTION

FOR REHEARING,

JUDGE DOUGLAS,

-ji-

TEX/.S COURT OF

CRIMINAL APPEALS..... lc

APPENDIX D: JUDGMENT OF TEXAS

COURT OF CRIMINAL

gg OF Pere ee ld

INDEX OF AUTHORITIES

CASES Page

Chambers v. Maroney, 399 U.S, 42

i ris 3, 6, 7, 8, 9, 10, 11

Hass v. Oregon, U.S. 43

L.Ed.2d 570 (No. 73-1452,

oo A eee 9

Stoddard v. State, 475 S.W.2d 744

(Tem, Vem. AM EGFR) oc 6 + 4s ee 7

OTHER AUTHORITIES:

UNITED STATES CONSTITUTION

Agnenmmnens TY . «6 0 0 6 808 8 ee 3, 10

Amendment XIV, Sec. ......... 4, 10

28 United States Code Sec, 1257(3)....... 2

Vernon’s Annotated Penal Code, .

AM, FO cece nse ee ae eee 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

*_ * *

STATE OF TEXAS,

Petitioner

V.

EARL ELMER WHITE,

Respcndent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

* * *

The Petitioner, State of Texas, respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the Court of Criminal Ap-

peals of Texas entered in this proceeding on April

25, 1975.

OPINIONS BELOW

The opinion of the Court of Criminal Appeals

-2-

of Texas reversing and remanding White’s convic-

tion of attempting to pass a forged instrument, Ap-

pendix A hereto, will be reported at 521 S. W: 2d

255 (1975). The dissenting opinions of two Judges

of the Court of Criminal Appeals of Texas on that

Court’s over-ruling of the State’s first motion for

rehearing are Appendices B and C hereto, and will

be reported in 521 S. W. 2d 258 (1975).

JURISDICTION

The first opinion of the Court of Criminal Ap-

peals of Texas, the Court of last resort in criminal

cases ofthat State, Appendix A hereto, was delivered

on July 2, 1974. That Court over-ruled the State’s

first motion for rehearing with two Judges dissent-

ing, Appendices B and C, on April 2, 1975, and on

April 23, 1975, over-ruled the State’s motion for

leave to file second motion for rehearing and to stay

mandate pending resort to this Court for certiorari.

Judgment and mandate of the Courtof Criminal Ap-

peals of Texas was entered reversing and remand-

ing the case back to the 108th Judicial District Court

of Potter County, Texas, on April 25, 1975; and this

petition for writ of certiorari was filed within 90

days of that date, pursuant to Rule 22(1). A copy of

the Judgment is attached hereto as Appendix D.

This Court’s jurisdiction is invoked under 28

U.S.C, Sec. 1257(3), upon the basis that the opinion

by the highest court inthe State of Texas concerning

Criminal matters imposes upon the State greater

restrictions inthe introductionof evidence under the

Fourth Amendment to the United States Constitution

as a matter of Federal constitutional law than has

aii.

been impesed by the United States Supreme Court in

ics interpretation of the Fourth Amendment to the

United States Constitution. The holding of the Texas

Court of Criminal Appeals was that “for Federal

constitutional reasons, the prosecution could not

utilize otherwise relevant evidence.”

QUESTION PRESENTED

Notwithstanding this Court’s decision inCham-

bers v. Maroney, 399 U.S, 42(1970), does the Fourth

Amendment, as applicable to the States through the

Fourteenth Amendment, prohibit the use in evidence

by the prosecution of items seized ina warrantless

search of an automobile where probable cause to

search the automobile existed at the place of arrest

but the search was not made until after the automo-

bile was removed to the police station and searched

30 to 50 minutes later? Simply stated, the question

presented is whether or not exigent circumstances,

as interpreted by this Court in Chambers v.

Maroney, supra, were not shown to exist merely

because the seizure of the automobile took place at

two o'clock in the afternoon in a city and there was

no showing that a magistrate was not readily avail-

able, that there was no prospect of the car being

taken from the station by anyone and that the search

at the scene of the arrest would not have been

dangerous to the officers.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

“The right of the people to be secure

-4-

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures. ..

United States Constitution, Amendment XIV,

Section lL:

- . » Nor shall any State deprive

any person of life, liberty or property,

without due process of law. . .”

STATEMENT OF THE CASE

A, General Background

White as convicted upontrial by a jury of know-

ingly attempting to pass as true a forged instrument

in writing (Vernon’s Ann. P.C, Art. 996). He appeal-

ed his conviction to the Texas Court of Criminal Ap-

peals, which ina 3-2 decision reversed the judgment

of conviction on the grounds that certain evidence

admitted at the trial was unlawfully obtained in vio-

lation of the United States Constitution and should not

have been admitted. See Appendix A hereto, The

State’s motion for rehearing was denied,

B. Facts Material to the Question Presented:

White was arrested at approximately 1:30 P.M.,

June 28, 1972, at Teller Drive-up Window No. 7 of

the First National Bank of Amarillo. The arrest was

made on the basis of informationfrom the American

National Bank of Amarillo received by Officer

Jimmy Stevens at about 1:20 P.M. that White had

attempted to pass four checks there, andon informa-

tion received by Officer Crowell from the First

National Bank that White was inthe act of attempting

-*

to pass certain checks at one of the drive-in win-

dows at that bank, The car which White drove was

described to Officer Stevens as a blue 1966 Lincoln

Continental (S/F 23, 24). Crowell and Stevens pro-

ceeded to the First National Bank, where they found

White in his car at the No. 7 drive-up window. He

had already handed the teller four checks and a

deposit slip with a request for a portion of the

amount in cash, and the teller was waiting for the

police before acting upon the tender of deposit, The

_ Officers obtained from the teller the checks and

deposit slip White had attempted to pass and ordered

him to drive across the street and park at the curb.

While he was doing so, an official of the bank and

Officer Crowell observed him making a hand move-

ment toward the glove compartment, and then toward

the seat as though attempting to “stuff” something

between the seats (S/F 9, 13). White was ordered

out of the car and was taken by Officer Stevens in the

police car to the poiice station, about seven blocks

distance, Officer Crowell removed White’s car

from the public street in downtown Amarillo and

drove it to the police station and parked it in the

driveway. He gave Officer Stevens the car keys

(S/F 17). While in the car, Crowell did not see or

look for any checks (S/F 18),

At the station, Stevens talked to White for 30 to

40 minutes and attempted to get his consent for a

search of the car, White refused to give such con-

sent. Thereupon, Stevens and Crowell, without ob-

taining a search warrant, made a searchof White’s

car, In addition to the other information, Officer

Stevens also had information that White had attempt-

ed to pass checks at the American National Bank

prior to his arrest at the First National Bank drive-

-6-

up window and that he had reason to believe that he

had the American National Bank slip and checks in

the automobile when he was arrested. Theofficers

found four wrinkled checks of the same nature as

those attempted to be passed, between the fold-down

console and the front seat ofthe car (S/F 27). These

checks were admitted in evidence over White’s

objection (S/F 41).

C, Manner in Which Federal Question was Raised

The Federal question presented herein was

originally raised by White, in his pre-trial Motion

to Suppress the Evidence obtained by the officers in

the search of White’s car (S/F 1), White’s counsel

in making his objection asked the trial judge if she

was aware of the case of Chambers v. Maroney, 399

U.S. 42 (1970). He then stated that the search in that

case was reasonable because the officers hada re-

port that a robbery had been committed and that the

car had been stopped at night. He pointed out that in

the present case the facts were different because the

arrest was made in the daytime andthecar was not

reported to be occupied by robbers, and that

Chambers v. Maroney was not applicable (S/F 39).

When the trial judge ordered the checks admit-

ted into evidence she stated:

“| will find there was probable

cause for the arrest and probable cause

for the search as well. And since it was

a moving vehicle, there were exigent Cir-

cumstances that would have permitted a

search at the scene, UnderChambers yv,

Maroney, | will find that the fruits of the

we

search, even though it was made at a

later point at the police station, are ad-

missable in evidence.” (S/F 41).

On White’s appeal tothe Texas Courtof Crim-

inal Appeals, this ruling was assigned as error in

White’s brief as follows:

“The trial court erred in overrul-

ing a motion to suppress evidence unlaw-

fully seized as the result of a warrantless

search of defendant’s automobile.” (Ap-

pellant’s Brief, at 3)

In its decision reversing White’s conviction,

the Court of Criminal Appeals relied on Chambers

v. Maroney, in holding that at the time of the search

White was in custody atthe police Station, therefore

the search was not incident to the arrest. See Ap-

pendix A hereto. That Court further stated that the

officers made no attempt to give any reason for fail-

ing to get a warrant, that althoughacar is movable

there was no evidence of any prospect of it being

taken from the station, and that the arrest was not

made out on a lonely road around midnight, where

the search might have been dangerous to the of-

ficers, The Court of Criminal Appeals then found

that in the absence of any exigent circumstances

which are necessary to justify a warrantless search,

there was no justification for a search without,a

warrant, relying on Stoddard v. State, 475 S.W. 2d

744, 799 (Tx, Crim, App. 1972), citing Chambers v,

Maroney, 399 U.S. 47. See Appendix A hereto.

a

REASONS FOR GRANTING THE WRIT

The Texas Court of Criminal Appeals has

decided an important question of Federal constitu-

tional law in amanner inconflict withthe applicable

decisions of this Court.

In Chambers v. Maroney, 399 U.S. 42, this

Court stated,

“It does not constitute a violation

of an accused’s Fourth Amendment rights

for the police officers to make a warrant-

less search of an automobile taken to the

police station after the accused and

others have been arrested while riding in

the automobile, where (1) there was prob-

able cause to arrest the occupants of the

automobile for armed robbery and to

search the automobile for guns and stolen

money, (2) an immediate search of the

automobile at the time and place of the

arrest would have been constitutionally

permissible, and (3) it was not unreason-

able to take the automobile to the police

Station before making the search, and

probable cause for the search still

existed after the automobile ‘was taken to

the police station.”

In Chambers the Court pointed out that, as the

basis for the conclusion that exigent circumstances

existed,

“(t)he blue stationwagon could have

hs

been searched on the spot when it was

stopped since there was probable cause

to search and it was a fleeting target to

search. The probable cause factor still

obtained at the station house and so did

the mobility of the car unless the Fourth

Amendment permits a warrantless sei-

zure of the car and the denial of its use

to anyone until a warrant is secured.”

399 U.S, at 52.

It is very clear that the facts in Chambers

were very similar to the facts in this cause. The

owner of the automobile was in custody both in

Chambers and in this case. Probable cause to

search the automobile existed in Chambers and in

this case at the scene of the arrest. There was no

showing and no reliance by the Court upon the fact

that it would have been dangerous or inconvenient to

the officers to search the automobile at the scene,

either in Chambers or inthiscase. The availability

of a magistrate in order to issue a search warrant

was not an issue either in Chambers or before the

trial court in this case,

This Court stated in Hass v. Oregon, U.S.

43 L.Ed.2d 570, (No. 73-1452, March 19,

1975):

“A state is free as a matter of its

own to impose greater restrictions on

police activity than those this court holds

to be necessary upon Federal constitu-

tional standards. But of course, a State

may not impose greater restrictions as

-10-

a matter of Federal constitutional law

when this court specifically refrains

from imposing them,”

It is clear from the opinion in this cause that

the Texas Court of Criminal Appeals has unduly

restricted the application of “exigent circum-

stances” as interpreted by this Court inChambers,

Supra, and therefore improperly applied this

Court’s interpretation of Fourth Amendment rights

to the facts in this cause. In applying Chambers,

the sole question to be answered inthis cause is not

whether or not probable cause existed for the

search, since the opinion of the Texas Court of

Criminal Appeals makes it perfectly clear that the

decision is not based upon this factor. Instead, the

question is whether or not under the circumstances

of this case it was reasonable to remove the car to

the police station and search it at that location. In

applying the holding of this Court in Chambers v.

Maroney, supra, it becomes clear that the Texas

Court of Criminal Appeals unduly restricted the

application of the officers’ right to search and the

use of resulting evidence inthe prosecution of White.

The opinion of the Texas Court of Criminal Ap-

peals also makes it perfectly clear that this decision

is based solely upon the application of the Fourth

Amendment to the United States Constitution through

the Fourteenth Amendment to the United States Con-

Stitution to a State prosecution as the applicationof

these two amendments has been interpreted by this

Court. Theopinionofthe CourtofCriminal Appeals

cites State cases, but eachState case that is cited is

based upon United States Supreme Court cases asis

hte

the conclusion which the Court reaches in this

Cause in its application of the lack of exigent cir-

cumstances under Chambers v, Maroney, supra.

CONCLUSION

The Texas Court of Criminal Appeals’ decision

herein unduly restricts this Court’s interpretation

of Fourth Amendment rights as to what constitutes a

reasonable search of an automobile under exigent

circumstances as determined by this Court in

Chambers v. Maroney, supra. Therefore, the

opinion of the Texas Court of Criminal Appeals in

this case improperly prevents Texas prosecutors

from using evidence which has been seized in a

constitutionally permissible manner. Accordingly,

and for the reasons given above, a writof certiorari

should issue to review the judgment and opinion of

the Texas Court of Criminal Appeals herein.

Respectfully submitted,

JOHN L, HILL

Attorney General of Texas

DAVID M, KENDALL

First Assistant Attorney

General

JOE B, DIBRELL

Assistant Attorney General

P.O, Box 12548

Capitol Station

Austin, Texas 78711

«12.

TOM CURTIS

District Attorney

Amarillo, Texas 79101

Attorney for Petitioner

-\™

PROOF OF SERVICE

Joc. Drernce

1, Forr€rurtis, a member of the Barof the Su-

preme Court of the United States, do hereby certify

that a copy of the foregoing Petition for Writ of

Certiorari has been served on Respondent by placing

Same in the United States Mail, certified, postage

prepaid, addressed as follows: Mr. Jim Brown,

Attorney at Law, P.O. Box 15, Canyon, Texas 79015,

on this the .2 2 day of July, 1975.

JOE B. DIBRELL

Assistant Attorney General

lhe 4,

oF

———

-la-

EARL ELMER WHITE,

Appellant

Appeal from

NO. 47,907 " Potter County

THE STATE OF TEXAS,

Appellee

OPINION

Appeal is from a conviction in a trial before a

jury of knowingly attempting to pass as true a forged

instrument in writing. Punishment was assessed

at five years,

Appellant was arrested at approximately 1:30

P.M,, June 28, 1972, at Teller Drive-up Window No.

7 ofthe First National Bankof Amarillo. The arrest

was made on the basis of information from the

American National Bank of Amarillo received by

Officer Jimmy Stevens at about 1:20 P.M, that appel-

lant had attempted to pass four checks there and on

information received by Officer Crowell from the

First National Bank that appellant was in the act of

attempting to pass certain checks at one of the

drive-in windows at that bank, Thecar which appel-

lant drove was described to Officer Stevens as a blue

1966 Lincoln Continental, Crowell and Stevens pro-

ceeded to the First National Bank, where they found

appellant in his car at the No. 7 drive-up teller’s

window. He had already handed the teller four

checks and a deposit slip with a request for a por-

tion of the amount incash, andtheteller was waiting

for the police before acting upon the tender of

deposit. The officers obtained from the teller the

-2a-

checks and deposit slip appellant had attempted to

pass andordered appellant to drive across the street

and park atthe curb, While he was doing so, an offi-

cial of the bank and Officer Crowell observed him

making a hand movement toward the glove compart-

ment, and then toward the seat as though attempting

to “stuff” something between the seats. Appellant

was ordered out of the car and was taken by Officer

Stevens in the police car tothe police station, about

seven blocks distance. Crowell drove appellant’s

car to the station and parked it inthe driveway, and

gave Stevens the car keys. While inthe car, Crowell

did not see or look for any checks.

At the station, Stevens talked to appellant fur 30

or 45 minutes, and attempted to get his consent for a

search of the car, Appellant refused to give such

consent. Thereupon, Stevens and Crowell, without

obtaining a search warrant, made a search of appel-

lant’s car. They found four wrinkled checks of the

same nature as those received by them from the

First National Bankteller stuffed betweenthe fold-

down console and the front seat of the car. These

checks were admitted in evidence over appellant’s

objection,

Appellant initially makes the contention that the

officers violated his rights under the Fourth Amend-

ment in searching his car without first obtaining a

search warrant.

Since appellant was engaged in the act of com-

mitting a felony in the presence oftheofficers when

they apprehended him, their right to arrest him is

not being questioned. The right of the officers to

-3a-

search his car after appellant had, at their instruc-

tions, driven it across the street and before it was

moved to the police station is not before us, since

the officers did not make a search at that time.

Officer Crowell testified that he saw no incriminat-

ing papers in the car while he was moving it to the

police station.

At the time the search was made appellant was

in Custody at the police station. Therefore, the

search was not incident to the arrest. Stoddard v.

State, 475 S.W.2d 744, 749, citing Prestonv. United

States, 376 U.S. 364, 84S.Ct. 881, 11 L.Ed.2d 777;

Chambers v. Maroney, 399 U.S. 47, 90 S.Ct. 1975,

26 L.Ed.2d 419,

“/T/he reasons that have been thought

sufficient to justify warrantless searches

carried out in connection with an arrest

no longer obtained when the accused is

safely in custody at the station house.”

Chambers v. Maroney, supra.

In Cady v. Dombrowski, U.S. , 93 S.Ct.

2523 (1973), the Supreme Court construed Preston

v. United States, supra, as holding that “Once an

accused is under arrest and in custody, then a

search made at another place, without a warrant, is

simply not incident to the arrest,” and limited its

holding “for the proposition that the search chal-

lenged there could not be justified as one incident to

an arrest.”

In Harris v. State, 486 S.W.2d 88, we cited

Chambers v. Maroney, supra, as holding that “for

-4a-

constitutional purposes, we see no difference be-

tween on the one hand seizing and holding a car be-

fore presenting the probablecause issue to a magis-

trate and on the other hand carrying out an immedi-

ate search without a warrant. Given probable cause

to search, either course is reasonable under the

Fourth Amendment.”

However, the officers on arresting the appel-

lant did not search the car immediately on arrest-

ing appellant. They took him to the police station,

and tried for between 30 and 40 minutes to secure

his consent to search his car. He refused to give

such consent. Evidently, at that time they were in

doubt as to their legal right tomakea search with-

Out a warrant. Having the appellant incustody, and

having the keys to hiscar, which at that time was in

the station breezeway, the exigencies required fora

warrantless searchofthecar were not present. The

officers made no attempt to give any reason for fail-

ing to get a warrant. The time was around two

o’clock in the afternoon, inthecityof Amarillo, and

there is no showing that a magistrate was not readily

available, There is no evidence that, althougha car

is movable, there was any prospect of it being taken

from the station by anyone. The arrest was not

made out on a lonely country road around midnight,

where the search might have been dangerous tothe

officers, as the Supreme Court noted was inthe case

in Chambers v, Maroney, supra.

The Supreme Court recognizes that one of the

established exceptions to the warrant requirements

is the search of anautomobile onthe highway where

there is probable cause to support the search, and

where it is not practical to secure a warrant because

-5a-

the vehicle can be quickly moved out of the locality

or jurisdiction in which the warrant must be sought.

Carroll v. United States, 267 U.S. 132, 45S.Ct. 280,

69 L.Ed 2d 543; Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers

v. Maroney, supra, These authorities support the

proposition that the burden is on the State to show

that the exigencies of the situation make a search

without a warrant imperative. But the search of

appellant’s car cannot be sustained under the auto-

mobile exception, for there is no showing inthe evi-

dence of any reasonable likelihood that the auto-

mobile would be moved,

We quote as follows from Stoddard v.

State, 475 S.W.2d 744:

“The general rule is that ‘searches

conducted outside the judicial process,

without prior approval by judge or mag-

istrate, are per se unreasonable under

the Fourth Amendment--subject only to

a few specifically established and well-

delineated exceptions.’ Katz v. United

States, 389 U.S, 347, 357, 88 S.Ct. 507,

514, 19 L.Ed.2d 576, accord Coolidge

v. New Hampshire, 403 U.S. 443, 91S.Ct.

2022, 2032, 29 L.Ed.2d 564 (1971). ‘Only

in exigent circumstances will the judg-

ment of the police as to probable cause

serve as a Sufficient authorization for a

search,’ Chambers v. Maroney, 399

U.S. 42, 51, 90S.Ct. 1975, 1981 (1970).

The mere fact that probable cause exists

will not obviate the necessity for procur-

-6a-

_ing a warrant, unless the search falls

within one of the exceptions to the general

rule, ‘Any assumption that evidence suf-

ficient to support a magistrate’s disin-

terested determination to issue a search

warrant will justify the officers in making

a search without a warrant would reduce

the Amendment to a nullity ....’

Johnson v. United States, 333 U.S. 10,

14, 68 S.Ct. 367, 369, 92 L.Ed.2d 436

(1948). ‘Belief, however well founded,

that an article sought is concesled in a

dwelling house, furnishes no justifica-

tion for a search of that place without a

warrant, And such searches are held

unlawful notwithstanding facts unques-

tionably showing probable cause.’ Agnel-

lo v. United States, 269 U.S. 20, 33, 46

S.Ct. 4, 6, 70 L.Ed. 145 (1925); Coolidge

v. New Hampshire, 403 U.S. 443, 91S.Ct.

2022, 2030, 29 L.Ed.2d 564 (1971).

“Therefore, even if the officers had prob-

able cause to believe that marihuana

was concealed in appellant’s automobile,

that fact, standing alone, would not jus-

tify a warrantless search... .”

In Stoddard, the Court held that “The test is

whether ‘exigent circumstances’ makes the obtain-

ing of a warrant impracticable. In the instant case

no showing is made as to why the obtaining of a war-

rant was not practicable. .” The judgment was

reversed,

we

-Ja-

In the absence of the “exigent circumstances”

which are necessary to justify a warrantless search,

we find no justification for a search withouta war-

rant. The four checks seized in the search were

unlawfully obtained, and should not have been admit-

ted. Stoddard v. State, supra.

These checks, which were proved to be forged,

were before the jury for their consideration at both

the guilt and the punishment stage. After finding

appellant guilty of attempting to pass a similar

forged check, the jury assessed the maximum

penalty. Art. 996, V.A.P.C. We donot find beyond

a reasonable doubt that the error is harmless,

The judgment is reversed, and the cause is

remanded.

Green, Commissioner

(Delivered July 2, 1974)

Opinion approved by the Court

APPENDIX B

-lb-

EARL ELMER WHITE,

Appellant

Appeal from

No. 47,507 V. Potter County

THE STATE OF TEXAS,

Appellee

DISSENTING OPINION ON

STATE’S MOTION FOR REHEARING

At the time this case was first submitted on

rehearing, Judge Jackson, then a Commissioner

with this Court, prepared an opinion which | now

adopt as my dissent.

“We have concluded that the search of appel-

lant’s automobile at the police station was legal,

and the evidence thus obtained was admissible.

It is conceded that appellant’s arrest was legal

and that probable cause existed for the search inci-

dent to that arrest at that time, but it is contended

that the removal of the automobile to the police

station and the warrantless search some 30 to 50

minutes later was not proper.

The record shows that the felony committed in

the officer’s presence was at a drive-in window of

a bank on a busy street, and that it was not practical

to search there. It was more consistent with the

safety and convenience ofthe appellant, his automo-

bile, and the officers to remove the car to the police

station to complete the search incident to the arrest.

- 2b-

The fact that in the meantime the officers

sought to obtain consent from appellant for the

search, which was refused, in no way militated

against the right to search, and was reasonable

under the circumstances,

The entire series of events culminating in the

recovery of additional forged checks from appel-

lant’s automobile was one continuous transaction.

As was said in Taylor v. State, 421 S. W. 2d 403,

cert. denied, 393 U.S. 916, 89 S. Ct. 241, 21 L. Ed.,

2d 201, opinion on appellant’s motion for rehearing

‘the removal of this automobile to Marshall, and the

subsequent search were a series of events consti-

tuting one continuous happening.’

We have also approved later warrantless

searches under similar facts in Lara v. State, 469

S. W. 2d 177, on appellant’s motion for, rehearing;

and in Gomez v. State, 470 S. W. 2d 871. These

holdings are in accord with Chambers v. Maroney,

399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, ...

We have considered the additional grounds of

error presented by appellant and find them to be

without merit.

The State’s Motion for Rehearing is granted and

the judgment is affirmed.

JACKSON,Commissioner”

I dissent.

MORRISON, Judge

(Delivered April 2, 1975)

APPENDIX C

-lc-

EARL ELMER WHITE,

Appellant

Appeal from

NO, 47,507, v. Potter-County

THE STATE OF TEXAS,

Appellee

DISSENTING OPINION ON

STATE’S MOTION FOR REHEARING

The majority overrules the State’s motion for

rehearing without written opinion, |

The majority still does not apply Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d

419, which is the constitutional law of the United

States, The State is being denied due process of law.

A state has constitutional rights. See State of

California v. Green, 399 U.S. 149, 90 S.Ct.1930,

26 L.Ed.2d 489 (1970).

The majority is not following previously decid-

ed cases by this Court. Gomezv. State, 470 S.W.2d

871, written by one of the majority in this case,

upheld a search of acar atthe police station after a

search was made at the time ofarrest. The arrest

was made upon information given by an informant

who stated that Gomez and Torres were preparing

heroin for distribution and that the two would be

leaving in a “‘60 Pontiac, blue and white.”

l , ' _ =

The dissenting opinion on the original sub-

mission is withdrawn,

-2ce-

In the Gomez case, it is written:

“The appellant also complains that

the search of the automobile was illegal

because the search was conducted with-

out a warrant at the police station later,

and not immediately at the site of the

arrest. Gann’s testimony relevant to

this matter

“Q,

a

“<Q,

nes

was as follows:

Now, Officer, when you got

to the police station, what

did you do?

Sgt. Hersom took Gloria Oli-

vio upstairs, and Sgt. Taylor

and myself remained and

conducted the search of the

vehicle, of the ‘60 Pontiac.

Now, Officer, why was it nec-

essary to continue the search

down at the police station?

* * *

It was impossible to conduct

a search there at that loca-

tion due to the crowd andthe

circumstances. We felt we

were blocking traffic, and

the crowd that had gathered

there, it seemed imperative

that we continue the search

at some place where we

i

-3c-

might be sure we had not

missed anyone or anything.’

““The relevant test, in cases like

that at bar, is whether the search was

reasonable under all of the circum-

Stances, for it is only unreasonable

searches that are prohibited by the

Fourth Amendment,’ Taylor v. State,

Tex.Cr.,App., 421 S.W.2d 403. A search

is not unreasonable if the automobile is

searched at another place if the sub-

sequent search is a part of a series of

events constituting one continuous hap-

pening. Taylor v. State, supra.” (Em-

phasis supplied)

In the Taylor case, supra, this Court upheld the

search of an automobile after a trafficarrest. The

arrest was for a traffic violation at Waskom, some

eight miles from the courthouse at Marshall. Prob-

able cause was showntosearchthecar. An officer

took the keys from Taylor. The officer searched

the trunk of the car without a warrant after they

reached the magistrate’s office at the courthouse.

He found marihuana in a coffee can. This Court

held that search was legal and the marihuana was

admissible and wrote:

“/t /he removal of this automobile

to Marshall, and the subsequent search

were a series of events constituting one

continuous happening.”

and,

-4c-

“As pointed out by the Supreme

Court in Cooper v. State of California

/386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d

730/, and in Preston v. United States,

/376 U.S. 364, 84S.Ct. 881, 11 L.Ed.2d

777/, the question there decided was not

whether the search was authorized by

state law, but whether the search was

reasonable under the Fourth Amendment.

Both opinions make it clear that whether

a search is reasonable depends upon the

facts and circumstances of each case,”

In Cooper v. California, 386 U.S. 58, 87 S.Ct.

788, 17 L.Ed.2d 730, it is written:

“It is no answer to say that the

police could have obtained a search war-

rant, for ‘/t /he relevant test is not

whether it is reasonable to procure a

search warrant, but whether the search

was reasonable.’ UnitedStatesv. Rabin-

owitz, 339 U.S. 56, 66 94L.Ed. 683, 660,

70 S.Ct, 430,”

In Brown v. State, 475 S.W.2d 938, this Court

upheld the search of the trunk of an automobile that

Brown had been driving which was made in his

absence without a warrant some twelve hours after

officers received information of the crime of

murder,

We will look at the facts to see if the officers

had probable cause to search the automobile. The

majority does not question the right to arrest.

-5C-

Appellant was arrested in his car at the First

National Bank in Amarillo where he had attempted

to pass as true four forged checks with a deposit

slip listing the checks, Had he been successful in

passing these checks he would have collected $279

cash, He did not have an account at the bank.

Arlain Miller testified that she worked at the

American National Bank in Amarillo. Appellant

had four out-of-town checks listedona deposit slip.

He had no account at that bank under his name and

there was no account number as he had listed on the

deposit slip. She kept acopyofthe deposit slip and

returned two copies and the checks to appellant.

Maxine Bayless testified that she was a teller

at the American National Bank and that appellant had

on the deposit slip the four checks and the total

amount less cash but he had no account in the bank,

Joyce Cross, a teller at the American National

Bank, testified that appellant tried to make a deposit

of checks but there was no account in that name or

number. There were four out-of-town checks to be

deposited and he wanted back $279 in cash, She

called Marvin Keith Herring, a security officer at

the First National Bank, and the Amarillo Police

Department, and “] told them that we had a man

there attempting to deposit some checks; that we

had made a routine check and we did not have an

account in the name that he wastrying to deposit the

checks in or the number.”

Detective Jimmy Stephens of the Amarillo

Police Department testified that he received a call

ies

from Herring who related that he had received a call

from a Mrs, Cross from another bank,thata fellow

tried to pass some checks and that he was now at the

drive-up window.

After arriving at the bank, officers had appel-

lant move his car from the drive-up window.

Herring, the assistant cashier of the First National

Bank, saw appellant make a motion from the glove

compartment to the area of the front seat divider.

He saw wrinkled or crumpled papers in the fold of

the seat,

Detective Crowell who was at the bank at the

time of the arrest testified that Herring told him

about seeing movements of appellant’s hand from the

glove compartment to the seat. Crowell advised

Herring that he saw it also and later told Detective

Stephens about it. Crowell drove appellant’s car

some six or seven blocks to the police station.

The car was searched at the police station

approximately forty to fifty minutes after the arrest

and the other checks complained to be the result of

an illegal search were found,

Officer Crowell testified that he did not know

how many checks were supposedly passed. He test-

ified that appellant was taken out of hiscar when it

was verified there was “no such account and no such

number,”

The following occurred:

“Q. (Prosecutor) Did you have author-

-7C-

ity to impound the car?

“A. Yes, sir, we did.

“Q. And the normal procedure is for

you to search the car before you

impound it?

“A, Yes, sir; we are required to take

the person out of the car; that we

are responsible for the car andits

contents; therefore, we search the

vehicle for any valuables, (Em-

phasis supplied)

“Q. What do you do with the valuables?

“A. We book them in.

“ * * *

“Q. Who gave you authority to impound

the car?

“A, No, sir, we impounded it due to the

fact that we took him out of the car

during the arrest.”

Detective Jimmy Stephens testified that when

the officers arrived at the First National Bank they

saw the appellant ina ‘66 Continental four-door blue

hard top. This matched the description he got from

the American National Bank, While at that bank,

Stephens obtained from the teller the deposit slips

and the checks that appellant attempted to pass.

-8c-

Stephens testified that he advised appellant of

his rights, Then the following occurred:

“Q. (Prosecutor) Was it also normal

detective procedure to ask a sus-

pect like that when you think a

search might be inorder, to ask the

suspect if he wants to consent to the

search?

“A, Yes, I sure did.

“ * * *

“Q. And did he consent or not?

“A, No, sir, he refused.”

After this, Stephens and Crowell searched the

car, Stephens found four checks folded and stuffed

“between the fold down console and the seat itself.”

On cross-examination Stephens was asked what

he was looking for when he conducted the search,

He stated:

“Well, we had known that he had

attempted to pass checks at the American

National, and we had recovered the

checks from the First National, the First

National Drive-up Window.

“And I felt as though there would be

possibly other checks from the American

National, ...

-9c-

“ie & *

“And he had presented the Amer-

ican National deposit slip at the American

National, This is what I was looking for.

“x *& *

“Yes, sir, 1 had reason to believe

that there were American National de-

posit slips in there.”

Stephens, when asked if he had to look around

to find the checks, stated: “I had tolook inside the

car. I saw them, * * * When I stuckmy head in the

car 1 sawthem,.” And, “Well,I saw what appeared

to be checks to me and then I reached down and got

them,”

On cross-examination he was asked, “So you

were just looking for anything that you might run

across inthe car?” He answered, “I guess just a

general search.” On redirect he testified, “I felt

as though he probably would have had to have an

American deposit slip to make the deposit. l

think that is standard procedure at banks, They said

he already had the deposit made up. It was already

made up.” Stephens also testified that he found the

checks where Detective Crowell indicated he had

seen appellant appear to be placing something inthe

area to the right of where he was sitting.

Appellant’s counsel in making his objection

asked the trial judge if she was awareof the case of

Chambers v. Maroney, 399 U.S, 42, 90S.Ct, 1975,

-10c-

26 L.Ed.2d 419. He then stated that the search in

that case was reasonable because officers had a

report that a robbery had been committed and that

the car was stopped at night. He pointed out that in

the present case the facts were different because

the arrest was made in the daytime and the car was

not purported to be occupied by robbers, and that

Chambers v. Maroney was not applicable.

When the trial judge ordered the checks admit-

ted into evidence, she stated:

“I will find there was probable

cause for the arrest and probable cause

for the search as well.

2Even the employees at either bank had the

right to arrest appellant under the facts of this case,

Article 14.01, V.A.C.C.P., provides:

“(a) A peace officer or any other per-

son, may, without a warrant, ar-

rest an offender when the offense

is committed in his presence or

within his viey, if the offense is one

classed as a felony or as anoffense

against the public peace.

“(b) A peace officer may arrest an of-

fender without a warrant for any

offense committed in his presence

or within his view.”

-llc-

“ * * *

“Under the doctrine of Chambers

v. Maroney, I will find that the fruits of

the search, even though it was made ata

later point at the police station, are ad-

missible in evidence.”

The trial judge has sufficient evidence and

authority upon which to base her ruling.

. This is like the Taylor case, supra. The of-

ficers took the forged checks from the bank. The

possession of forged checks with intent to pass them

is a felony. Theofficers had probable cause and the

officers had appellant move his car from the teller’s

window “to clear the driveway.”

This cause is being reversed upon the

grounds

that Chambers, supra, is not applicable,

Recently, Justice Powell, Speaking for the Su-

oy Court of the United States, in Gerstein v.

ugh, U.S. » 95 S.Ct. 854, L.Ed.2d 16

Crim.L.Rep. 3052 (February T8, 1975), wrote:

“Maximum protection of individual

rights could be assured by requiring a

magistrate’s review of the factual justi-

fication prior to any arrest, but such a

requirement would constitute an intoler-

able handicap for legitimate law enforce-

ment, Thus, while the Court has express-

ed a preference for the use of arrest war-

rants when feasible, Beck v. Ohio, supra,

-12c-

at 96/379 U.S. 89, 917, Wong Sunv. United

States, 371 U.S. 471, TISAABS 1963), i -482 (1963), it

has never invalidated an arrest supported

by probable cause solely because the of-

ficers failed to secure a warrant. See

Ker v. California, 374 U.S. 23 (1963);

Draper v. United States, 358 U.S. 307

(1959); Trupiano v United States, 334 U.S.

699, 705 (1948).”

There was probable cause in the present case

but no search warrant for thecar was obtained. The

present case is stronger in favorofthe search than

Taylor v, State, supra, but the majority does not

even distinguish the two.

The passing of Taylor and Gomez should be

noted by the majority and their interment should be

conducted with more dignity.

There is no legal or logical reasonto hold that

a search could not be made at the police station a

short time after the arrest whena searchcould have

been made at the bank,

The exclusionary rule which, inpart, prohibits

the introduction of evidence obtained in a search

because an officer makes a mistake has nothing to

do with an accused’s guilt or innocence. The rule

does not punish the officer, it only hurts the law-

abiding public when a guilty person goes free be-

cause an officer makes an honest mistake. We

should not extend the exclusionary rule where it is

not required by the Supreme Court of the United

States or other constituted authority. Some accept-

-13c-

able substitute for such a rule should be consi-

dered by the Supreme Court of the United States and

the Legislature of Texas. See Wright, Must The

Criminal Go Free If The Constable Blunders, Tex.

L.Rev., Volume 50, Page 736 (1971); American

Criminal Law Review, The Fourth Amendment

Exclusionary Rule: Past, Present, No Future,

Volume 13, Page 507 (1975). Even though the Su-

preme Court, in my opinion, does not require the

exclusion of the checks in question from evidence,

this Court holds the exclusionary rule applies and

reverses the conviction,

Decisions such as the one in this cause should

Cause a reappraisal of the rule.

Chambers v. Maroney is still alive, except in

Texas, It should be followed and the judgment

affirmed.

Douglas, Judge

(Delivered April 2, 1975)

we Breenerrrerea Tai L

a enon arn a re — ) ee Ort gt ae Sheadte

= ‘ ra - 7 -

a an

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“Al a.

sare =m

dt iF i ; ed as

a

ls

-ld-

THE STATE OF TEXAS

To the 108th. Judicial District Court of Potter

County, Greeting:

Before our Court of Criminal Appeals, on the

23rd day of April A. D, 1975, the cause upon Appeal

to revise or reverse your judgment between

Earl Elmer White, Appellant,

No. 47,507

vs,

THE STATE OF TEXAS, Appellee,

was determined; and therein our said Court of

Criminal Appeals made its order in these words:

“This Cause came on to be heard on the Tran-

script of the record of the Court below, and the

same being inspected, because it is the opinion of

this Court that there was error inthe judgment, it is

ordered, adjudged and decreed by the Court that the

judgment be reversed and the cause remanded for

further proceedings in accordance with the opinion

of this Court, and that this decision be certified be-

low for observance,” written State’s first & second

motions for rehearing overruled without opinion.

WHEREFORE, we command you toobserve the

order of our said CourtofCriminal Appeals, in this

behalf and in all things to have it duly recognized,

obeyed and executed.

WITNESS, the HON. JOHN F, ONION, JR.,

Presiding Judge of our said Court of Criminal

Appeals, with the seal thereof annexed, at City

of Austin, Texas, this 25thday of April A.D.1975

GLENN HAYNES, Clerk

Tommy Lowe, Deputy Clerk