# Petition — Pearson v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1548%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 912 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1548%3A1. Public record. Not legal advice.