Petition — Long v. Texas

In the

Supreme Court of the United States

OCTOBER TERM, 1975

No. . 0-1214

a

HAROLD LoypD LONG,

Petitioner,

V.

Fe—S4te-oFr TEXAS,

Respondent.

a ——

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

————

FRANK H. JACKSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

Counsel for Petitioner

Of Counsel:

GEORGE R. MILNER

RONALD L. GORANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

SOUTHWESTERN LAW PRESS — DALLAS, TEXAS — (214) 742-4257

INDEX

Page

a le cls Suaueta nies cot

I i. iik 3. idcserpsatniontesionseasbacardiaivionuan Si See 1

re ad adok dosckes ch yen ieee oe

Question Presented 2

Constitutional Provisions Involved 2

Statement of the Case...................... Shape ern oe

Reasons for Granting the Writ +

a cE ee RT ALS ARE RON Pe Ne

Certificate of Service jason 9

Appendix A icasusiduscosishhastachaadatostenveieseeme ee

Appendix B ‘ eee SALA

ii Table of Authorities

Cases Page

Adams v. Williams, 407 U.S. 143 (1972) 000. 6

Brock v. United States, 223 F.2d 681 (5 Cir. 1955)... 5

Gil v. State, 394 S.W.2d 810 (Tex. Crim. App. 1965) ........ 4

Harris v. United States, 396 U.S. 234 (1968)... 5

Hester v. United States, 265 U.S. 57 (1925)..................... §

Johnson v. State, 469 S.W.2d 581 (Tex. Crim. App. 1971). 4

Jones v. United States, 357 U.S. 493 (1958) Ter Ras 4

Katz v. United States, 389 U.S. 347 (1967)................. 4,5

McDonald v. United States, 335 U.S. 451 (1948) ....... 4,6

Mancusi v. Deforte, 392 U.S. 364 (1968) ees Oe

Mapp. v. Ohio, 367 U.S. 643 (1961) ) ne

Sibron v. New York, 392 U.S. 40 (1968) reds Na

Silverthorne Lumber Co. v. United States, 251 U.S.

385 (1920)

Terry v. Ohio, 392 U.S. 1 (1968)

Turner v. State, 499 S.W.2d 182 (Tex. Crim. App. 1973) .

United States v. Davis, 423 F.2d 974 (5 Cir. 1970)

United States v. Holmes, 521 F.2d 859 (5 Cir. 1975)

Weeks v. United States, 232 U.S. 383 (1914)

Wong Sun v. United States, 371 U.S. 471 (1963)

Se UU nanrt A

Supreme Court of the United States

OCTOBER TERM, 1975

—-

No.

a

HAROLD Loyp LONG,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

——

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

LS

The petitioner, Harold Loyd Long, respectfully prays that

-a writ of certiorari issue to review the judgment of the Court

of Criminal Appeals for the State of Texas in this case.

OPINION BELOW

The opinion of the Court of Appeals is not yet reported

but is attached hereto as Appendix A.

JURISDICTION

The judgment of the Court of Criminal Appeals for the

State of Texas was entered on December 10, 1975. Leave

to file a motion for rehearing was denied on January 21,

2

1976, (attached hereto as Appendix B). The jurisdiction of

this Court is invoked under 28 U.S.C. Sec. 1257(3).

QUESTION PRESENTED

Whether the three hundred and fifty pounds of marijuana

introduced as evidence at the petitioner’s trial was seized in

violation of the search and seizure provision of the Fourth

Amendment of the United States Constitution as applied to

the states by the Fourteenth Amendment of the United States

Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. IV:

“The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures, shall not be violated. and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

U.S. Const. amend XIV, Section |:

“, .. mor shall any State deprive any person of life, lib-

erty, or property, without due process of law... .”

STATEMENT OF THE CASE

The sheriff of Wise County, Texas, received three reports

of aircraft circling and landing in a rural section of the county.

On the third occasion the sheriff went to the area and ob-

served one aircraft take off while another aircraft circled over-

head. The departing aircraft only used its landing lights for

a very brief period to allow the aircraft to clear the ground.

The runway lights were turned off after the aircraft cleared

the ground.

”

v

Two weeks later the sheriff and one of his deputies decided

to visit the property to conduct further investigation. The

house was located 200 - 300 yards from the nearest neighbor,

and ninety (90) feet from a farm to market road. The sheriff

did not know who lived on the property. Upon arriving, they

parked in the driveway and knocked on the door facing the

carport of a small frame house. After recewving no answer, the

two officers walked to the back of the house and knocked

on the back door. Again they received no answer. They then

continued around the house, intending to return to their car.

As they passed a window on the west side of the house, they

felt a hot blast of air and the smell of marijuana coming from

the window. The blinds of the window were open and the

officers observed a large quantity of marijuana scattered over

the floor of a room with a fan blowing air over the marijuana.

The sheriff returned to his office and obtained a search

warrant. The house was then placed under observation by a

large number of law enforcement officers. The petitioner was

seen driving up to the residence and entering it. He was ob-

served making numerous trips between the house and a trailer

and the house and an old school bus. The officers executed

the search warrant on October 11, 1973, two days after it

was obtained. The appellant was found sleeping in the house

along with several other people. Marijuana was found in

the house, the trailer and the bus.

Prior to the trial of the case, a hearing was held on the

petitioner's Motion to Suppress. Petitioner’s objection to the

search was that the initial warrantless search was illegal and

that the subsequently obtained search warrant (and the fruits

4

obtained therefrom) was fatally tainted. The trial court de-

nied the motion and an exception was taken. The issue was

raised on appeal, but the Court of Criminal Appeals of the

State of Texas affirmed, holding that observations through an

open window did not amount to a search, citing Turner v. State,

499 S.W.2d 182 (Tex. Crim. App. 1973), and that one so

foolish as to leave his window open could not complain if

another observes illegal activity, citing Gil v. State, 394 S.W.

2d 810 (Tex. Crim. App. 1965); Johnson v. State, 469 S.W.2d

581 (Tex. Crim. App. 1971); and Turner v. State, supra.

REASONS FOR GRANTING THE WRIT

Searches conducted outside the judicial process, without

prior approval by a magistrate, 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 (1967). The exceptions are jealously

and carefully drawn, Jones v. United States, 357 U.S. 493

(1958), and there must be a showing by those who seek

exemption that the exigencies of the situation made the course

imperative. McDonald v. United States, 335 U.S. 451 (1948).

Under the facts of the present case, if the observation

through the open window was the result of an unlawful in-

trusion, then the marijuana seized as a result of the search

warrant issued after the intrusion would be “fruit of the poi-

son tree” and excludable, Silverthorne Lumber Co. v. United

States, 251 U.S. 385 (1920); Wong Sun v. United States,

371 U.S. 471 (1963), the protection of the Fourth Amend-

ment being applicable to state searches through the “due

5

process” clause of the Fourteenth Amendment. Mapp v. Ohio,

367 U.S. 643 (1961).

One of the exceptions to the warrant requirement of the

Fourth Amendment is the “plain view” doctrine. Objects fall-

ing in the plain view of an officer who has a right to be in

the position to have that view are subject to seizure. Harris v.

United States, 390 U.S. 234 (1968); Hester v. United States,

265 U.S. 57 (1925). The Texas Court of Criminal Appeals

affirmed the conviction below upon this exception, although

stressing the “open window” as talismanic to a waiver of the

protection of the Fourth Amendment. The true issue involved

is whether the officers had a right to be outside the window.

The test for determining the issue is a balancing test between

the petitioner's reasonable expectation of privacy and the

government's power to investigate suspicious activities.’

The Fourth Amendment protects against any invasion of

a person’s reasonable expectation of privacy. Katz v. United

States, supra; Mancusi v. Deforte, 392 U.S. 364 (1968). There

is not much dispute that a person is entitled to a reasonable

expectation of privacy in his own home. Weeks v. United

States, 232 U.S. 383 (1914). In Brock v. United States, 223

F.2d 681 (5 Cir. 1955), the circuit court reversed a convic-

tion for operating a still after a law enforcement official ob-

tained incriminating evidence by going upon the defendant's

property, making observations through a window and con-

versing with the defendant through the window. The opinion

stated: ~

“Whatever quibbles there may be as to where the curti-

1 United States v. Magana, 512 F.2d 1169 (9 Cir. 1975).

lage begins and ends, clear it is that standing on a man’s

premises and looking in his bedroom window is a viola-

tion of his ‘right to be left alone’ as guaranteed by the

Fourth Amendment. McDonald v. United States (335 U.S.

451).” (footnotes omitted)

And in United States v. Holmes, 521 F.2d 859 (5 Cir. 1975),

the circuit court held that whatever precautions a homeowner

in an urban area might have to take to protect his activities

from the senses of a casual passerby, a dweller in arural area

has a somewhat broader expectation of privacy.? See also

United States v. Davis, 423 F.2d 974 (5 Cir. 1970).

The right of the law enforcement officer to be at the win-

dow must be based upon the officer’s right to investigate sus-

picious activities. In Terry v. Ohio, 392 U.S. 1 (1968), and

its companion cases, Sibron v. New York and Peters v. New

York, 392 U.S. 40 (1968), this Court recognized that a police

officer may, in appropriate circumstances and in an appro-

priate manner, approach a person for purposes of investi-

gating possible criminal behavior. See also Adams v. Williams,

407 U.S. 143 (1972). However, Terry was limited by the re-

quirement that police interference with citizens must be based

upon “specific and articuable facts which, taken together with

rational inferences from those facts, reasonably warrant” an

intrusion into constitutionally protected areas. Terry v. Ohio,

392 U.S. at 21. Further, “[T]he scope of the search must be

‘strictly tied to and justified by’ the circumstances which ren-

dered its initiation permissible.” 392 U.S. at 19.

* See Rosencranz v. United States, 356 F.2d 310 (1 Cir. 1966), for a dif-

erentiation of the rural/urban environment with reference to probable

Cause originating from the sense of smell.

7

Applying the above law to the facts of this case, it is

apparent that the sheriff probably had the right to go to

the home of the petitioner and knock on the front door to

see if anyone was present. However, his right to further in-

vestigate ceased when no one answered his knock. The house

was a small frame house. There was no testimony from the

sheriff to indicate anyone was present (an automobile in the

driveway; a radio or television operating in the house). The

circumstances do not permit a further intrusion based upon

the contention that the officer was “searching” for someone

to answer the officer’s questions about suspicious circumstances.

The mere fact that the contraband was observed through

the open window® should not permit a broadening of the

scope of the intrusion. The window was not observable from

the front door. The nearest neighbor lived 200-300 yards

from the house, and there is no evidence that the contraband

could have been observed from any place outside of petitioner’s

property. The sheriff waited two weeks before beginning his

“investigation.” It is clear from the facts that the officer's

intrusion beyond the front door of petitioner’s rural residence

was a Violation of the petitioner's reasonable expectation of

privacy, and should warrant the granting of this writ.

The decision of the Texas Court of Criminal Appeals is

based upon an interpretation of law that is probably not in

accord with the above decision of this Court. Further, the

case involves an issue not precisely determined by this Court.

Upon these grounds, the Court should grant this writ of

certiorari.

3 See Olivera v. State, 315 So.2d 487 (Fla. App. 1975).

8 9

CONCLUSION CERTIFICATE OF SERVICE

For the reasons set forth above, petitioner respectfully sub- I hereby certify that three copies of this Petition for Writ

mits that a writ of certiorari should issue to review the judg- \ of Certiorari were mailed, postage prepaid, to the Hon. John

ment and opinion of the Court of Criminal Appeals of the | Hill, Attorney General, Capitol Station, Austin, Texas 78711,

State of Texas. : on the same date as shown on the lIgttdr of transmittal accom-

panying this Petition. '-

Dallas, Texas 75202

Counsel for Petitioner

Of Counsel:

Dallas, Texas 75202

Counsel for Petitioner

Of Counsel:

GEORGE R. MILNER GEORGE R. MILNER

RONALD L. GORANSON RONALD L. GORANSON

555 Griffin Square 555 Griffin Square

Suite 968 Suite 968

Dallas, Texas 75202 Dallas, Texas 75202

APPENDIX

Mae wre.

A-1

APPENDIX A

No. 50,164

—

HAROLD LOYD LONG, Appellant

Vv.

THE STATE OF TEXAS, Appellee

i

Appeal from Wise County

—

OPINION

This is an appeal from a conviction for possession of mari-

huana. The jury assessed punishment at ten years’ imprison-

ment and a fine of five thousand dollars.

Appellant initially contends that the evidence is insufficient

to support the conviction. The facts will therefore be set forth

in some detail.

Eldon D. Moyers, the Sheriff of Wise County, testified that

he had received reports on two prior occasions of aircraft cir-

cling and landing in a rural section of Wise County near what

was described as the “Spann place.” Approximately two weeks

before the appellant was arrested, the Sheriff again received

a report of aircraft circling and landing in the same area.

The Sheriff proceeded to a point where he could observe the

area. He testified that the time was about 11:45 p.m. and he

saw one aircraft take off while another aircraft circled over-

head. The departing aircraft only used its landing lights for

a very brief period to allow it to clear the ground. The runway

lights were also on only during the aircraft’s take-off and

A-2

then were turned off. At this point, the circling aircraft turned

toward Decatur and was followed by the aircraft that had

just taken off.

Sheriff Moyers further testified that about two weeks after

his observations he and a deputy decided to visit the airstrip

site to conduct further investigation. The Sheriff stated that

he did not know who lived on the property, but that the

name on the mailbox was Spann. The Sheriff and his deputy

arrived at about 5:00 p.m., parked in the driveway, and went

to the door of the house intending to inquire about the aircraft

flights. The Sheriff knocked on the door facing the carport

and received no answer. The Sheriff and the deputy then

walked to the back door of the house and knocked. Again

they received no answer. The Sheriff testified that at this point

he said to the deputy, “Well, we'll have to come back later.”

They continued around the house intending to return to their

Car.

Sheriff Moyers testified that as they came around the west

side of the house they felt a blast of heat and a strong smell

coming from an open window. The smell was described as that

of freshly cut marihuana. The blinds on the window were

also open and when they looked into the room they saw

something covering the floor and stacked around the walls.

In the doorway they saw an electric heater with an electric

floor fan behind it. The Sheriff stated that at this point he

and the deputy returned to Decatur to obtain a search warrant.

After a search warrant was obtained, the Sheriff called the

Department of Public Safety and received the assistance of

A-3

several DPS narcotics agents. They returned to the property

in question and set up surveillance.

Dale Hampton, a Department of Public Safety narcotics

agent, testified that during the surveillance of the property he

saw the appellant drive up to the residence, take some keys

from his pocket, unlock the back door and enter the house.

Appellant was in the house for a short period of time. A car

then drove into the front yard, appellant came out of the house,

locked the door, and spoke with the man in the car for several

minutes. Appellant was then observed returning to the house.

A short time later the appellant was observed coming back

out of the house. He then drove his car out into the barnyard

and hooked a two-wheel trailer to the car. Appellant then

drove the car and trailer back into the yard near the house.

The appellant then made several trips between the house and

the trailer. The appellant was then observed to stand up in the

trailer and shake out something that appeared to be a blanket

or small tarp, cover the trailer with this, and tie it down. A

few minutes later the appellant left the property in his car

and returned a few minutes later, reentered the house, returned

to the car and left again. Appellant returned to the property

later in the evening with a female companion. Later still, an-

other man and woman with a small child arrived at the house.

Agent Hampton further testified that he continued to conduct

surveillance of the property through the hours of darkness with

the aid of a night vision scope. There was an old school bus

parked in the yard of the farmstead which had apparently

been converted into a camper. At about 11:20 p.m., the bus

was moved around in the yard. The appellant, together with

A4

the others present, was observed making numerous trips from

the house to the bus and back. This activity continued until

about 3:30 a.m., when the lights in the house were turned

off and all activity ceased. The surveillance continued through-

out the night.

The search warrant which had been obtained on the 9th

of October, 1973, was executed at approximately 7:00 a.m.

on the morning of October 11, 1973, the morning after the

observations testified to by Agent Hampton. When the Sheriff

and the DPS agents entered the house, they found the appel-

lant and his female companion in the east bedroom. In the

front room of the house they found another couple and a small

child. The small child was the only member of the household

that was dressed. Agent Hampton described the house as “a

mess.” “There was stuff scattered everywhere.” Marihauna

was found under the dinette table and on the top of the

dinette table. In the northwest bedroom the agents found

marihuana all over the floor and stacked against the wall.

There was no furniture in that room. In the doorway to the

room with the large quantity of marihuana there were two

electric heaters with a large floor fan behind them: all were

running at the time, apparently for the purpose of drying

the marihuana.

After making the discoveries described above, the agents

proceeded to search the bus which was located within thirty

or thirty-five feet of the house. In the bus the agents found

what appeared to be marihuana spread out on the bunks that

had been built into the bus. Next, the agents searched the

two-wheel trailer, which was located approximately two hun-

rd

A-5

dred and fifty feet from the house. In the trailer the agents

found the bottom covered with about twelve to sixteen inches

of what was later shown to be marihuana.

Sheriff Moyers testified that during the search the party

discovered three hundred and fifty-five pounds of what was

shown to be marihuana. A qualified chemist testified that the

substance found at the property was in fact marihuana.

Possession of marihuana need not be exclusive and evi-

dence which shows that the appellant jointly possessed the

marihuana with another is sufficient. Williams v. State, 524

S.W.2d 705 (Tex. Cr. App. 1975); Curtis v. State, 519 S.W.2d

883 (Tex. Cr. App. 1975). Mere presence at a place where

narcotics or dangerous drugs are possessed does not in itself

justify a finding of joint possession. Curtis v. State, supra;

Valdez v. State, 481 S.W.2d 904 (Tex. Cr. App. 1972). The

evidence must affirmatively link the appellant to the contraband

in such a manner that a reasonable inference arises that the

accused knew of its existence. Hineline v. State, 502 S.W.2d

703 (Tex. Cr. App. 1973); Williams v. State, supra. Where

the accused is not in the exclusive possession of the premises,

it cannot be concluded that he had knowledge of the contra-

band and control of it unless there are additional independent

facts and circumstances which affirmatively link the accused

to the contraband. Barnes v. State, 504 S.W.2d 450 (Tex. Cr.

App. 1974); Wright v. State, 500 S.W.2d 170 (Tex. Cr. App.

1973); Williams v. State, 498 S.W.2d 340 (Tex. Cr. App.

1973).

In this case, the evidence indicates that the appellant had

A-6

a key to the house. He was observed entering and leaving the

house on several occasions, locking and unlocking the door

each time as he did so. He was observed entering and leaving

the bus the night before the search. He was observed moving

the two-wheel trailer and taking it off the property and bring-

ing it back later. The record reflects that the property was

under surveillance during the period in question and that no

other party had control of the house or vehicles after they

left control of the appellant.

The evidence supports the verdict of the jury.

Appellant’s second ground of error is that the trial court

erred in overruling his motion to suppress. It is the appel-

lant’s contention that the search warrant was issued as the

result of a prior warrantless search. Appellant contends that

the first warrantless search was illegal and that the subse-

quent search warrant, and the fruits thereof, were fatally

tainted. We disagree. The record in this case shows that in

fact no search was conducted.

The Fourth Amendment protects people and not places.

What a person knowingly exposes to the public, even in his

own home or office, is not subject to Fourth Amendment pro-

tection. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,

19 L.Ed.2d 576; Turner v. State, 499 S.W.2d 182 (Tex. Cr.

App. 1973). A search means, of necessity, a quest for, a

looking for, or a seeking out of that which offends against

the law. This implies a prying into hidden places for that

which is concealed. It is simply not a search to observe that

which is open to view. Turner v. State, supra; Crowell v. State,

147 Tex. Cr. R. 299, 180 S.W.2d 343 (1944).

A-7

The testimony shows that the Sheriff had received re-

ports of aircraft landing and departing at unusual hours. The

Sheriff himself observed the departure of an aircraft from

the property under what can only be described as unusual

circumstances. It was altogether proper that the Sheriff should

at least make inquiries. The property was in a rural portion

of Wise County that was sparsely settled. The Sheriff drove

to the property and tried to make inquiries. The rest is stated

in some detail above. It should be further noted that a photo

of the house is included in the record and it is a very small

frame house with a carport attached, and it does not seem

at all unreasonable for the Sheriff and his deputy to have

continued around the structure after receiving no answer at

the rear door. The windows were open and so were the blinds.

The Sheriff testified that he felt the heat and smelled the

drying marihuana.

Appellant relies on the case of Texas v. Gonzales, 388 F.2d

145 (Sth Cir., 1968) for his contention that the Sheriff was

conducting an illegal search by looking through the window.

The facts are distinguishable. In Gonzales, the officers made

three trips to the window from a hiding place nearby hoping

to see some narcotics. On the third trip to the window the

officer stood on a drain pipe to see into the window. In Gon-

zales, the window was closed and the blinds were closed.

This should be contrasted with Gil v. Beto, 440 F.2d 666

(Sth Cir., 1971), where the Fifth Circuit denied habeas corpus

relief. In the same case on initial appeal [Gil v. State 394

S.W.2d 810 (Tex. Cr. App. 1965)], this Court held the rule

to be that when one is so foolish as to leave his window open

A-8

he may not complain if another observes illegal activity.

In Johnson v. State, 469 S.W.2d 581 (Tex. Cr. App. 1971),

officers went to the defendant’s apartment, knocked on the

door and, when no one answered, looked through a window

whose draperies were open and observed stolen merchandise.

This Court held that looking through the window was not

an illegal search, saying:

“Under this set of facts, we cannot say that appellants

could ‘reasonably assume that they were free from unin-

vited inspection through the window’ and we must hold

that no search protected by the Fourth Amendment oc-

curred.”

Sheriff Moyers was investigating suspicious circumstances

when he observed the marihuana. He then had probable cause

to search and commendably sought to obtain a search war-

rant. As this Court stated in Turner v. State, 499 S.W.2d 182:

“(1)t is the duty of a policeman to investigate, and we

cannot say that in striking a balance between the rights

of the individual and the needs of law enforcement the

Fourth Amendment draws the blinds the occupant could

have but did not.”

Appellant’s second ground of error is overruled.

Appellant's third and fourth grounds of error will be dis-

cussed together as they both relate to the scope of the search

authorized by the warrant. Ground of error three relates to

the search of the school bus, while ground of error four re-

lates to the search of the two-wheel trailer. It should be re-

membered that the appellant was charged with the posses-

sion of over four ounces of marihuana and the record reflects

A-9

that significantly more than four ownces were found within

the house.

The search warrant commanded the Sheriff to “enter the

suspected place described in said Affidavit and to there search.”

The “suspected place” was described in the warrant as follows:

“Approximately 2.5-3 miles West of State Highway 114,

as it goes North from Chico, Texas, on FM 2265, going

West from said highway intersection, a white frame house

with gray trim; a yellow and black school bus having the

name of Schulenburg (See attached exhibit +1)

EXHIBIT + |

Independent School District, partly blocked out, said

school bus now having pink curtains on the windows.

The mailbox at said house bears the name ‘Spann.’

The location lies just Easterly, approximately 2-3

hundred yards of a house and property belonging t

W. D. Martin.” chai ~

The authorities cited by the appellant are not directly in

point. Certainly if the warrant in this case had contained the

phrase “including all other structures, vehicles, and places on

the premises,” appellant's third and fourth grounds of error

would be clearly without merit. However, the warrant before

us contains no such phrase.

Clearly the “suspected place” was the farmstead, not simply

the house as the appellant contends. After finding contraband

in the house, we cannot say that the search of the bus located

only a few yards from the house was unreasonable. The bus

had been moved the night before the search warrant was exe-

cuted and the appellant had been seen in and around the bus.

Only after more contraband had been found in the bus was

A-10

the scope of the search widened to the trailer which was

located some 250 feet from the house and was within the

curtilage of the farmstead.

The test to be applied in searches without a warrant or

beyond the scope of a search warrant is whether the search

was unreasonable since only unreasonable searches are pro-

hibited by the Fourth Amendment. Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. What is reason-

able cannot be determined by a rigidly fixed formula. United

States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed.

653. Nor can the test be stated in rigid and absolute terms.

Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91

L.Ed. 1399. In short, what is reasonable within the meaning

of the Fourth Amendment depends on the facts and circum-

stances of each case. Cooper v. California, 386 U.S. 58, 87

S.Ct. 788, 17 L.Ed.2d 730; Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (Harland, J., con-

curring)

Under the facts and circumstances of this case, the search

was not unreasonably broad in its scope. Therefore, the ap-

pellant’s third and fourth grounds of error are overruled.

The judgment is affirmed.

BROWN, Commissioner

(Delivered December 10, 1975)

(Opinion approved by the Court)

ee

A-11

APPENDIX B

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK’S OFFICE

Austin, Texas, Jan. 21, 1976

Dear Sir:

I have been instructed to advise that the Court has this

day denied “Leave To File” the _ appellant's Motion for

Rehearing in Cause No. 50,164 , Harold Loyd Long

Vs.

THE STATE OF TEXAS Appellee.

Sincerely yours,

GLENN HAYNES, Clerk