Petition — Pearson v. Texas

Supreme Court, U & \

FILED

JAN 14 1980

MICWAEL RODAK, JR., CLERR

WRMAU* 2 =e Newt EDS S.A... ee act

IN THE

SUPREME COURT OF THE UNITED STATES

January Term, 1980

no. €9=10986

JUDITH LEIGH PEARSON, Petitioner,

Vv.

STATE OF TEXAS, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

Stephen E. van Gaasbeck

LYTLE & VAN GAASBECK

1227 S. W. Military Dr.

San Antonio, Texas 78221

January 9, 1980

INDEX

Page

Opinion Belowecccccccccccccccsceee L

JULLISGICCIONs cccccccccccccscccscce L

Qustions Presented. ccrccccccecees

Statement of the CaSC.ccccccccces

Reasons for granting the writ....

I. The decision of the Texas

Court of Criminal Appeals

conlicts with the deci-

sions of this Court. .... 6

II. The opinion of the Tex.

Ct. Cr. App. totally ig-

nored the petitioner's

assertion of her fourth

amendment protection a-

gainst unreasonable ar-

rest, search and seizure. 12

ConCclusionececccccccccceccccssecsce 13

APPENdixeccceccccccccccccccccAPPe 1

ov WwW Nh

.

CITATIONS

Mincey v. Arizona

437 U.S. 385,98 S.Ct. 2408 (1979)

ere ee re ee ee

U.S. v. Peltier

422°U.S. 531,..95.$.Ct 2313 (1971)

hed ken wen Ops ated bau

Brown v. State

475 S.W.2d 938 (1971)

ee ccecevececscccel Oe9

Chimel v. California

393) UsG, 452; 985 S.Ct. -203¢

(1969)

ee rere eee

Coolidge v. New Hampshire

405 0.8; ..443;91. 8.6. 2022

(1971) :

vh aee hak ae

Katz v. U.S:

sae: U.82. 347, 66:8.Ct. 507

ane ee ee re Pee

Davis v. Mississippi

394 U.S. 721 (1969) cccccccccceeell

NASTU v. State

cause no. 58,059 (10/79)

not published as of this date...10

Kemner v. State

cause no. 55,786 (11/79)

not published as of this date...10

Brown v. Illinois

See UsGs SEO CA9TS)icc cwoceece sO li

IN THE

SUPREME COURT OF THE UNITED STATES

January Term, 1980

No.

JUDITH LEIGH PEARSON, Petitioner,

Ve

STATE OF TEXAS, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

The petitioner Judith L. Pearson

respectfully prays that a writ of cer-

tiorari issue to review the judgment

and opinion of the Texas Court of Crim-

inal Appeals entered on October 17,

1979.

OPINION BELOW

The opinion of the Texas Court of

Criminal Appeals and the opinion dis-

senting to the denial of the petition-

er's Motion for Rehearing can be found

at 587 S.W.2d 393 and in the appendix.

JURISDICTION

The opinion of the Texas Court of

Criminal Appeals was entered on October

1

—ss "

17, 1979 when on that date the peti-

tioner's tiemly filed Motion for Re-

hearing was denied. This court's jur-

isdiction is envoked under 28 U.S.C.

Sec. 1257. (3).

QUESTIONS PRESENTED

1. Whether the warrantless

"murder scene" search of the petition-

er's apartment was unconstitutional

even though it occurred prior to this

court's decision in Mincey v. Arizona,

437 U.S. 385, 98 -S. Ct. 2408.

2. Whether handwriting samples

taken pursuant to an unconstitutional

arrest made for the purpose of gather-

ing evidence should be excluded from

use in trial.

STATEMENT OF THE CASE

On April 9, 1976 at 6:30 p.m.

Houston Police officers and investi-

gators were called to the petitoner's

apartment by the management of the

apartment complex where pétitioner re-

sided with her three year old daughter

Tamara. The call reported a dead body

in the petitioner's residence and when

they arrived at the scene the security

guard let them into the apartment

where they observdi several persons

comforting the petitioner who was cry-

ing. ‘They were taken to Tamara's bed-

room by the security guard where they

found her dead, lying in bed. A note

was pinned to her blouse stating "I'm

sorry I had to kill such a beutal (sic)

little girl in or to (sic) teach you

a lesson. Next time it will be you".

She was strangled to death.

The officers conducted an immedi-

ate search of the entire apartment

(kitchen, two bedrooms, and living room)

for evidence (not to determine the pre-

sence of additional victims). They

had no search warrant, nor did they

obtain the petitioner's consent. In

the living room they found a folder

with several notebooks inside. They

took out the notebooks, opened them and

read their contents. One notebook con-

tained a story in the petitioner's

handwriting. The story described an

incident which involved a threat to the

petitioner's daughter that occurred

two years prior to her actual death.

The story was written while the peti-

tioner lived in Georgia. The facts of

the story (which was intended for pub-

lication) were strikingly similar to

the actual killing of Tamara.

The petitoner was arrested at 9:00

pem. that night and taken to the Houston

Police Department. The purpose of this

arrest was to obtain her statement (R

239,282). After obtaining her statement

the police continued to hold her in the

city jail, ‘questioning her for four days

(R 282) taking finger prints and hand-

writing samples and searching her a-

“

partment (without a warrant). On her

fourth day of detention, handwriting

samples were taken from her (after giv-

ing her the Miranda warnings). It was

only then that she was taken before a

Magistrat> (R 320,322). During these

four days she was allowed to see only

a minister (once) and a friend (once)

(R: 323)

The petitoner filed a motion to

Supress the seized notebook citing the

unconstitutional nature of the search

and seizure as ground for exclusion.

This motion was denied by the trial

court.

During trial on January 24, 1977

the same objection was raised and over-

ruled. Her motion for new trial cited

the failure to exclude the story as a

ground for new trial. The motion was

denied. The unconstitutional search

and seizure of the story was timely

raised on appeal to the Texas Court of

Criminal Appeals.

The Court of Criminal Appeals in

it's opinion of June 21, 1978 agreed

that the search was illegal according

to Mincey v. Arizona, 437 U.S. 385,

98 S.Ct. 2408, but constured U.S. v.

Peltier, 422 U.S. 531,..95 8.Ct.. 2313

(1975) to mean that Mincey should not

be applied retroactively and affirmed

the trial court's judgment. Petitioner

filed a timely Motion for Rehearing

which was denied.

During trial the petitoner ob-

jected to the admission of the hand-

writing samples on the grounds that

they were the fruits of an unconsti-

tutional arrest. The trial court ig-

nored the Fourth Amendment grounds,

overruling the objection stating that

the taking of handwriting samples did

not violate Fifth Amendment guarantees.

REASONS FOR GRANTING WRIT

I. THE DECISION OF THE TEXAS COURT OF

CRIMINAL APPEALS CONFLICTS WITH THE

DECISIONS OF THIS COURT.

(A) Regarding the unconstitutional

search of the petitoner's apartment

this court ruled in Mincey that the

"murder scene exception" to the search

warrant requirement created by the Ari-

zona Supreme Court was not a valid ex-

ception and therefore searches relying

on it were unconstitutional.

In 1971 the Tex. Ct. Cr. App. cre-

ated a murder scene exception identic-

al to Arizona's in Brown v. State, 475

S.W.2d 938 (1971).

In it's opinion in the petitoner's

appeal the Tex. Ct. Cr. App. held that

Mincey did not apply to her case stat-

ing "We hold that because the search

and trial in this case occurred before

the decision in Mincey v. Arizona, su-

pra, when Brown v. State, supra, was

still good law, the disposition of the

appellant's first ground of error is

controlled by Brown instead of Mincey."

The Tex. Ct. Cr. App. cited Peltier as

authority for this reasoning.

. The Tex. Ct. Cr. App.'s opinion

conflicts directly with several of

this court's opinions by stating that

Brown was "good law" at the time of

the petitioner's trial.

(1) It conflicts with the Mincey

opinion in which this court specifical-

ly stated that none of the arguments

in favor of the "murder scene" rule per-

suades us of the validity of the gen-

ric exceptions delineated by the Arizo-

na Supreme Court."

(2) It conflicts with this court's

opinion in Chimel v. California, 395

U.S. 752, 985 S.Ct 2034 (1969) which

held that the scope of a search under

an exception to the search warrant re-

quirement must be stricly limited to

the circumstances which rendered the

search permissable. Since Brown pur-

ported to allow a full evidentry search

of a residence at the discovery of a

dead body, it was in conflict with

Chimel and therfore it was not even

"good law" at the time of its crea-

tion,

(3) In holding that the denial of

retroactive effect of Mincey is just-

ified by Peltier, the Tex. Ct.Cr. App.

is in direct conflict with Peltier it-

self.

This court's opinion in Peltier

specifically limits its application

to cases which "have broadened the ex-

Cclusionary rule." Mincey did not en-

large defendant's constitutional rights

nor did it broaden the exclusionary

rule. It is the petitioner's position,

supported by Mincey, that the search

of her apartment was unconstitutional

even if the Mincey opinion had not been

handed down.

The Tex. Ct. Cr. App. construes

Peltier as creating a "good faith rule"

allowing unconstitutionally seized ev-

idence to be admitted if the searching

officers were relying in good faith u-

pon the state of the law at the time

of the search.

Actually Peltier dealt with evi-

dence ‘seized in a type of search which

had been permitted for years; had con-

Sistently withstood judicial challen-

ges; was sanctioned by legislation and;

provided for by adminsitrative regu-

lations. The search in the petitoner's

case was not sanctioned by legislation

Or adminisrative regulations and the

only court decisions permitting it were

in direct conflict with the opinions

of this court. Therefore, for the

searching officers to have been "rely-

ing in good faith" to Brown they had

to be in bad faith in respect to Chimel,

Supra: Coolidge v. New Hampshire 403

U.S. 443, 91 S.Ct 2022 (1971) and Katz

v. United States 389 U.S. 347, 88 S.Ct.

507.

—_—

.

(4) Texas is continuing to erron-

eously apply Peltier and will do so

until stopped by this court. See Kem-

ner v. State, cause no. 55,786 (11/79)

and NASTU v. State, cause no. 58,059

(10/79) both of which are not published

as of now.

(B) In respect to the admission

of the handwriting samples, the Tex.

Ct. Cr. App.'s opinion is in direct

conflict with this court's holding in

Davis v. Mississippi, 394 U.S. 721

(1969) and Brown v. Illinois, 422 U.S.

590 (1975).

In Davis this court held that finger

prints taken as a result of an uncon-

stitutional arrest were to be excluded

from evidence as a fruit of that arrest.

In Brown v. Illinois this court

held that a confession taken as a re-

sult of an unconstitutional arrest is to

be excluded as a fruit of that arrest.

The Brown opinion listed several

tests to determine a casual connection

between the arrest and the taking of

evidence:

(1) The absence of intervening

circumstances = In the petitioner's case

10

the only intervening circumstance was

the giving of the Miranda warning which

alone is insufficient, Brown v. Illi-

nois, supra.

(2) The flagrancy of the illegal

arrest -— In the petitioner's case

the illegality was flagrant. She was

taken to the police station without a

warrant or exigent circumstances, no

attempt was made to obtain a warrant,

she was held for four days before be-

ing brought downstairs and charged be-.

for a magistrate, she was allowed only

two visits during that period of time.

(3) The purpose of the illegal de-

tention - In the petitioner's case the

purpose was to gather evidence. The

prosecutor stated during the hearing

of the petitioner's objection to the

handwriting evidence that "as far as

the arrest goes, the evidence is that

she was taken from the scene to be

questioned and as the circumstances be-

came known she remained in custody"

(R 320).

Further, the police did not take

her to a magistrate until the moment

after they convinced her to give the

11

handwriting samples.

II. THE OPINION OF THE TEX. CT. CR. APP.

TOTALLY IGNORED THE PETITIONER"S

ASSERTION OF HER FOURTH AMENDMENT

PROTECTION AGAINST UNREASONABLE

ARREST, SEARCH AND SEIZURE.

Through out the entire legal pro-

cess of the trial and appeal of her

case the petitioner has asserted that

the evidence was taken in violation of

her Fourth Amendment rights. The trial

court and Tex. Ct. Cr. App. have tot-

ally ignored the petitioner's asser-

tion of this right and instead have

treated her objection as an assertion

of the Fifth Amendment. To allow to

stand is to effectively deny the pet-

itioner the protection of the Fourth

Amendment which she had repeatedly

asked to be enforced. The reported

opinion in the petitioner's case will

serve as additinal precedent for the

continued admission of handwriting sam-

ples and fingerprints taken direclty as

a result of unconstitutional arrests.

12

LS ss see» “em mmm emma tla, aes mmm mann mms i lanl

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the

judgment and opinion of the Fifth Cir-

cuit.

Respectfully submitted,

Stephen E. van Gaasbeck

LYTLE & VAN GAASBECK

1227 S. W. Military Dr.

San Antonio, Texas 78221

January 9, 1980

~ 23

CERTIFICATE OF SERVICE

I hereby certify that on this day

of January, 1980, three copies of

the Petition for Writ of Certiorari

were mailed, postage prepaid to

Mr. Carol Vance, District Attorney,

Harris County Courthouse, Houston,

Texas 77002

I further certify that all parties re-

quired to be served have been served.

Stephen E. van Gaasbeck

LYTLE & VAN GAASBECK

1227 SW Military Dr.

San Antonio, Texas 78221

APPENDIX

OPINION OF THE TEXAS COURT OF

CRIMINAL APPEALS

JUDITH LEIGH PEARSON, Appellant

No. 58,055 vs. ---Appeal from

HARRIS County

THE STATE OF TEXAS, Appellee

OPINION

This is an appeal from a con-

viction for murder; punishment was

assessed by the court at life.

The sufficiency of the evidence

is not challenged. Although three

grounds of error are asserted in the

brief, the second was abandoned at

Oral argument, leaving two issues for

consideration in this appeal.

In her first ground of error ap-

pellant contends the trial court er-

roneously admitted papers and writ-

ings seized during a search of the

homicide scene. As pointed out in her

supplemental brief, this search and

seizure were in violation of the prin-

ciple announced in Mincey v. Arizona,

U.S. , 98 S.Ct. 2408, 57

L.Ed.2d 290 (197 8). The search was

conducted on April 9, 1976, and the

trial in this case was in January of

1977. Thus both the search and trial

were conducted prior to the decision

in Mincey v. Arizona, supra. At that

time the common law "exigency rule" a-

llowed such homicide scene investiga-

tions. Brown v. State, 475 S.W.2d

938, 948-950. We are therefore con-

fronted with the question of the retro-

active effect of Mincey.

In United States v. Peltier, 422

U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d

374 (1975), the court discussed the

retroactivity of exclusionary rule ca-

ses from the perspectives of both the

imperative of judicial integrity and

the deterrence rationale:

"Since 1965 this Court has repeat-

edly struggled with the question of

whether rulings in criminal cases

should be given retroactive effect.

In those cases '(w)here the major

purpose of new constitutional doctrine

is to overcome an aspect of the crim-

inal trial that substantially impairs

its truth-finding function and so rai-

ses serious questions about the ac-

curacy of guilty verdicts in past

trials, ‘Williams v. United States,

401 U.S. 646, 653, 91 S.Ct. 1148, 1142,

28 L.Ed.2d 388 (1971), the doctrine

————— meee ow ee

has quite often been applied retroac-

tively. It is indisputable, however,

that in every case in which the Court

has addressed the retroactivity prob-

lem in the context of the exclusionary

rule, whereby concededlyrelevant ev-

idence is excluded in order to enforce

a constitutional guarantee that does

not relate to the integrity of the

factfinding process, the Court has

concluded that any such new constitu-

tional principle would be accorded only

prospective application. Linkletter

v. Walker, 381 U.S. 618, 85 S.Ct. 1731,

14 L.Ed.2d 601 (1965); Johnson v.

New Jersey, 384 U.S. 719, 86 S.Ct.

1772, 16 L.Ed.2d 882 (1966); Stovall

v. Denno, supra; Fuller v. Alaska, 393

U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212

(1968); Desist v. United States, 394

U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d

248 (1969); Jenkins v. Delaware, 395

U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d

253 (1969); Williams v. United States,

Supra, Hill v. California. 401 U.S.

797, 91 S.Ct. 1106, 28 L.Ed.2d 484

(1971).

"We- think that these cases tell

us a great deal about the nature of

the exclusionary rule, as well as some-

thing about the nature of retroactiv-

ity anaysis. Decisions of this Court

applying the exclusionary rule to un-

constitutionally seized evidence have

referred to 'the imperative of judi-

cial integrity." Elkins v.United

States, 364 U.S. 206, 222, 80 S.Ct.

1437, 1446, 4 L.Ed.2d 1669 (1960),

although the Court has relied princi-

pally upon the deterrent purpose ser-

ved by the exclusionary rule. See Mapp

v. Ohio, 367 U.S. 643, 81 S.Ct. 1684,

6 L.Ed.2d 1081 (1961); Lee v. Florida,

392 U.S. 378, 88 S.Ct 2096, 20 L.Ed.2d,

1166 (1968), See also United States

v. Calandra, 414 U.S. 338, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974); Michigan

v. Tucker, 417 U.S. 433, 94 S. Ct.

2357, 41 L.Ed.2d 182 (1974). And see

also Oaks, Studying the Exclusionary

Rule in Search and Seizure, 37 U.Chi.

L.Rev. 665, 668=672 (1970).

"When it came time to consider

whether those decisions would be ap-

plied retroactively, however, the

Court recognized that the introduction

of evidence which had been seized by

law enforcement officials in good-faith

compliance with then-prevailing con-

stitutional norms did not make the

courts ‘accomplices in the willful

disobedience of a Constitution they are

sworn to uphold.’ Elkins v. United

States, supra, 364 U.S., at 223, 80

S.Ct. at 1447. Thus, while the ‘'im-

perative of judicial integrity' played

a role in this Court's decision to

overrule Wolf v. Colorado, 338 U.S. 25,

69 S.Ct. 1359, 93 L.Ed. 1782 (1949),

see Mapp v. Ohio, supra, 367 U.S., at

659, 81 S.Ct. at 1693, the Mapp de-

cision was not applied retroactively:

"Rather than being abhorrent at the

time of seizure in this case, the use

in state trials of illegally seized

evidence had been specifically author-

ized by this Court in Wolf.' Linklet-

ter v. Walker, supra, 381 U.S., at 638,

85 S.Ct., at 1742 (footnote ommitted).

Similarly, in Lee v. Florida, supra,

this Court overruled Schwartz v. Texas,

344 U.S. 199, 73 S.Ct. 232, 97 L.Ed.

231 (1952), and held that evidence

seized in violation of Sec. 605 of the

Federal Communications Act of 1934, 48

Stat. 1103, 47 U.S.C. Sec. 605, by

state officers could not be introduced

into evidence at state criminal trials:

"" (T)he decision we reach today |

is not based upon language and doctrin-

al symmetry alone. It is buttressed

as well by the "imperative of judicial

integrity." Elkins v. United States,

364 U.S. 206, 222, (80 S.Ct. 1437, 1446

4 L.Ed.2d 1669). Under our Constitu-

tion no court, state or federal, may

serve as an acoomplice in the willful

transgression of "the Laws of the Uni-

ted State," laws by which "the Judges

we

in every state (are) bound...

392 U.S., at 385-386, 88 S.Ct. at 2101

(footnotes ommitted).

"But when it came time to consider

the retroactivity of Lee, the Court

held that it would not be applied ret-

roactively, saying:

"“"Retroactive application of Lee would

overturn every state conviction obtain-

ed in good-faith reliance of Schwartz.

Since this result is not required by

the principle upon which Lee was

ee

decided, or necessary to accomplish its

purpose, we hold that the exclusionary

rule is to be applied only to trials

in which the evidence is sought to

be introduced after the date of our

decision in Lee.' Fuller v. Alaska,

supra, 393 U.S., at 8l1, 89 S.Ct. at 62.

"The teaching of these retroactiv-

ity cases is that if the law enforce-

ment officers reasonable believed in

good faith that evidence they had sei-

zed was admissible at trial, the ‘im-

perative of judicial integrity’ is not

offended by the introduction into evi-

dence of that material even if de >

cisions subsequent to the search or

seizure have broadened the exclusion-

ary rule to encompass evidence seized

in that manner. It would seem to

follow a fortiori from the Linkletter

and Fuller holdings that the 'impera-

tive of judicial integrity' is also

not offended if law enforcement offi-

Cials reasonably believed in good faith

that their conduct was in accordance

with the law even if decisions subse-

quent to the search or seizure have

held that condudt of the type engaged

in by the law enforcement officials is

not permitted by the Constitution. For,

although the police in Linkletter and

Fuller could not have been expected to

foresee the application of the exclu-

sionary rule to state criminal trials,

they could reasonably have entertained

no similar doubts as to the illegality

of their conduct. See Wolf v. Colorado,

336 U.S. , at 27, 69 8.Ct.. at 1361s

Sec. 605 of the Federal Communications

Act of 1934; cf. Nardone v. United

States, 302 U.S. 379, 58 S.Ct. 275,

82 L.Ed. 314 (1937).

"This approach to the ‘imperative

of judicial integrity' does not differ

markedly from the analysis the Court

has utilized in determinging whether

the deterrence rationale undergirding

the exclusionary rule would be further-

ed by retroactive application of new

constitutional doctrines . See Link-

letter v. Walker, supra, 381 U.S., at

636=637, 85 S.Ct., at 1741-1742; Fuller

v. Alaska, supra, 393 U.S., at 81, 89

S.Ct., at 62; Desist v. United States,

supra, 394 U.S. at 249-251, 89 S.Ct.,

at 1033-1035. In Desist, the Court

explicitly recognized the interrela-

tion between retroactivity rulings and

the exclusionary rule; '(W)e simply

decline to extend the court-made ex-

clusionary rule to cases in which its

deterrent purpose would not be served.'

394 U.S., at 254-n. 24, 89 S.Ct., at

1036.

"This focus in the retroactivity

cases on the purposes served by the

exclusionary rule is also quite in

harmony with the approach taken gen-

erally to the exclsuionary rule. In

United States v. Calandra, 414 U.S.,

at 348, 94 S.Ct. 613, 620, 38 L.Ed.2d

561, we said that the exclusionary

rule ‘is a judicially created remedy

designed to safeguard Fourth Amendment

rights generally through its deterrent

effect, rather than a personal consti-

tutional right of the party aggrieved.'

It follows that ‘the application of the

rule has been restricted to those areas

where its remedial objectives are

thought most efficaciously served.'

Ibid. We likewise observed in Michigan

v. Tucker, 417 U.S., at 447, 94 S.Ct.

2357, 2365, 41 L.Ed.2d 182:

"'The deterrent purpose of the ex-

Clusionary rule necessarily assumes

that the police have engaged in will-

ful, or at the very least negligent,

conduct which has deprived the defen-

dant of some right. By refusing to

admit evidence gained as a result of

such conduct, the courts hope to in-

still in those particular investigat-

ing officers, or in their future count-

erparts, a greater degree of care to-

ward the rights of an accused. Where

the official action was pursued in com-

plete good faith, however, the deter-

rence rationale loses much of its

force.'"

We hold that because the search

and trial in this case occurred before

the decision in Mincey v. Arizona,

Supra, when Brown v. State, supra, was

still good law, the disposition of

appellant's first ground of error is

controlled by Brown instead of Mincey.

The ground of error is overruled.

In the other ground of error pre-

sented by appellant, she contends that

handwriting samples taken from her and

used as evidence in the case were the

product of an illegal arrest. She ar-

gues the arrest was illegal because

she was not taken before a magistrate

until four days after her arrest and

after the handwriting samples were ta-

ken. We note that handwriting samples

do not violate the privilege against

self-incimination, Olson v. State, 484

S.W.2d 756, and that no casual connect-

ion between the failure to take her be-

fore a magistrate and the taking of the

handwriting samples was shown. Hester

v. State, 544 S.W. 2d 129. 134-135.

The ground of error is overruled.

The judgment is affirmed.

ODOM, Judge

(Delivered July 3, 1979)

By: Panel 3, 2nd Quarter, 1979, composed of

Wendell A. Odem, Judge

W.T. Phillips, Judge

W.C. Davis, Judge

JUDITH LEIGH PEARSON, Appellant

No. 58,055 vs. -=--Appeal from

HARRIS County

THE STATE OF TEXAS, Appellee

DISSENTING OPINION ON THE DENIAL

OF APPELLANT'S MOTION FOR REHEAR-

ING EN BANC

I cannot agree that Mincey v.

Arizona, U.S. ,98 $.Ct.

2408, 57 L.Ed.2d (1978), is not ret-

roactive. The Supreme Court in Mincey

—

did nothing more than apply well-esta-

blished Fourth Amendment law. The

opinion in Mincey, 98 S.Ct. at 2412-

2413, states:

- e e The Fourth Amendment pro-

scribes all unreasonable searches and

seizures, and it is a cardinal princi-

ple that "searches conducted outside

the judicial process, without prior

approval by judge or magistrate, are

per se unreasonable under the Fourth

Amendment -- subject only to a few spe-

cifically established and well-deline-

ated exceptions." Katz v. United

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

507, 514, 19 L.Ed.2d 576; also South

Dakota v. Opperman, 428 U.S. 364, 381,

A DON es

96 S.Ct. 3092, 3103, 49 L.Ed.2d 1000

(POWELL, J., concurring); Coolidge v.

New Hampshire, 403 U.S. 443, 481, 91

S.Ct. 2022, 2045, 29 L.Ed.2d 564; Vale

v. Louisiana, 399 U.S. 30, 34, 90

S.Ct. 1969, 1971, 26 L.Ed.2d 409; Terry

vy. Ohio, 392 U.S. 1, 20, 88. S.Ct. 1868,

1879, 20 L.Ed.2d 889; Trupiano v.

United States, 334, U.S. 669, 705, 68

S.Ct. 1229, 1232, 92 L.Ed. 1663.-The

Arizona Supreme Court did not hold

that the search of the petitoner's

apartmeht fell within any of the except-

ions to the warrant requirement pre-

viously recognized by this Court, but

rather that the search of a homicide

scene should be recognized as an ad-

ditional exception,

Several reasons are advanced by

the State to meet its "burden...

to show the existence of such an ex-

ceptional situation" as to justify

creating a new exception to the war-

rant requirement. See Vale v. Louisi-

ana, supra, 399 U.S., at 34, 90 S.Ct.,

at 1971, Jeffers v. United States, 343

U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed.

59. None of these reasons, however,

persuades us of the validity of the gen-

eric exception delineated by the Ari-

zona Supreme Court.

“2 2 hold that the "murder

scene exception" created by the Ari-

zona Supreme Court is inconsistent with

the Fourth and Fourteenth Amendments

-- that the warrantless search of Min-

cey's apartment was not constitution-

ally permissible simply because a hom-

icide had recently occurred there.”

(footnote omitted)

Mincey did not announce any new

rule of law, or represent a "sharp

break in the web of the law." See

United States v. Hart, 546 F.2d 798

(9th Cir. 1976). What Mincey did was

mend a break in the law caused by a

number of cases which gradually evolved

into the so-called "murder scene ex-

ception" to the warrant requirement.

As pointed out in Mincey, this is not

and never has been a valid exception

to the warrant requirement. It appears

tohave evolved from cases which held

that a warrantless entry into a home

was justified in the event the police

ae A AE NANI a i al 5

ens

had reason to believe that a person was

dying or otherwise in need of immediate

aid. See United States v. Barone, 330

F.2d 543 (1964) ;Wayne v. United States,

318 F.2d 205 (1963). This is a recog-

nized exception to the warrant re-

quirement. See Mincey, 98 S.Ct. at

2413-2414. Once inside, the officers

may seize incriminating evidence that

is in plain view, or inspect the prem-

ises to make sure that all danger has

passed and the situation is under con-

tol, as these are also recognized

exceptions. See Mincey, 98 S.Ct. at

2414. But a general search of the

premises for incriminating evidence,

after the emergency has subsided, is

not and has never been justifiable.

The majority states that at the

time of the search in this case the

"common law ' exigency rule' allowed

such homicide scene investigations, '

citing Brown v. State, 475 S.W.2d 938

(Tex. Crim. App. 1971). To the extent

that Brown and its isolated companions

Tocher v. State. 501 S.W.2d 921 (Tex.

Crim. App. 1973), and Corbett v. State,

493 S.W.2d 940 (Tex. Crim. App. 1973),

authorized searches under the "murder

scene exception," they were not based

on precedent and were clearly contrary

to established Fourth Amendment law.

It is reasonable to assume that a law-

yer familiar with search and seizure

law would have recognized these cases

as a substantial departure from estab-

lished law, and could have advised

interested parties that these cases re-

presented unsound authority.

I see no reason to retroactively

apply such sparse case law that has

been open to serious question since

its inception. I would hold that since

Mincey simply applied existing search

and seizure law and stated nothing

that we did not know already, it should

be applied retroactively. Compare

United States v. Hart, supra; United

States v. Martinez, 526 F.2d 954 (1976).

United States v. Peltier, 422 U.S.

531, 95 S.Ct. 2313, .48:L.EBa.28 374

(1945), does not require a different

result. The 9th Circuit Court of Ap-

peals had held in Peltier that the de-

cision in Almeida-Sanchez v. United

States, 413 U.S. 266, 93 S.Ct. 2535,

7 L.Ed.2d 596 (1973), holding a war-

rantless border search of an auto-

mobile unconstitutional, was to be ap-

lied retroactively because the deci-

sion overruled not prior Supreme Court

decision and reaffirmed established

law. In reversing the Ninth Circuit

in Peltier, the Supreme Court noted

that border searches of the type

struck down by Almeida-Sanchez had

been upheld by the courts for 20 years.

and that the border patrol agents

were acting under the express author-

ity of a statute and long-standing ad-

ministrative regultations. It con-

cluded from this that the officer's

conduct in performing the searches and

seizures was not "blameworthy." The

case law on the "murder scene except-

ion" is sparse, of dubious origin,

without statutory approval, and has

been openly contrary to established

Fourth Amendment law from the begin-

ning. The conduct of the officers in

this case cannot be labeled blameless.

Finally, although the Court in

Peltier engaged in a general discussion

of the retroactivity of exclusionary

rule cases, Peltier didnot establish

per se rule that cases which extend

the scope of the excluiionary rule

should not be applied retroactively.

To accept it as such would be to adopt

just the "mechanical approach" to the

issue of retroactivity that the Court

in Peltier repudiated.

I dissent to the denial of appel-

lant's motion for rehearing.

PHILLIPS, Judge

(Delivered October 17, 1979)

En Banc