Dancy v. State

772 reversing In Adams,

dice. the trial court’s dismis- property but rather was the rights against Therefore, sal Adams’ civil claim another inmate. Myers’ and Bonner, Myers appeals conduct, the court of wrongful Bonner’s if any, cannot prison reasoned that administrators can be be construed as Assuming intentional. vicariously conduct, wrongful held liable for the acts of their any, that their can be rights intentional, subordinates and that a civil action construed as Adams has never- wrongful will lie for confiscation or loss of theless failed to state a 1983 claim be- § property. an inmate’s Myers, adequate Adams v. state remedies exist to re- Estelle, (citing 721 at 449 Carter v. Myers dress his loss. To the extent that (5th Cir.1975)). 519 F.2d 1136 may Bonner have negligently by acted failing prevent loss, Adams’ such con- 527, Taylor, Parratt v. duct is not actionable under 1983because § 1908, (1981), S.Ct. 68 L.Ed.2d 420 the Su- Supreme Court of the United States preme Court of the United States held that negli- Daniels v. held that the Williams adequate remedy the existence of an state gent causing act of a state official unin- negligent to redress the loss of an inmate’s property, tended loss of does not amount to property by employee precluded a state deprivation actionable under the Due-Pro- action under 42 U.S.C. 1983 for violation § cess Clause. of the Due Process Clause of the Four- Therefore, pursuant teenth Amendment. The Court stated to TEX.R.APP.P. though 133(b), may majority grants even “the state remedies of the court provide respondent error, and, application with all the relief state’s writ may hearing argument, have if he which been available could without oral affirms the proceeded 1983, judgment that does not appeals except of the court of § reverses, mean that part severs, the state remedies are not ade- and re- quate satisfy requirements against Myers of due mands Adams’ 1983 claim § process.” part Id. at 101 S.Ct. at 1917. In and Bonner. Such of the court of Palmer, appeal’s judgment v. hereby Hudson 468 U.S. S.Ct. reversed (1984), judgment dismissing 82 L.Ed.2d 393 the Parratt of the trial court holding expanded against Myers to cover intentional Adams’ 1983 claim § deprivations property by prison of inmates’ Bonner is affirmed.

employees. recently, More in Daniels v.

Williams, 474 U.S. (1986),

L.Ed.2d 662 the Court overruled in

part Taylor holding Parratt v. by negli-

Due Process Clause is not invoked

gent acts of state officials which cause injury,

unintended loss or acts do life, deprive liberty, DANCY, Eugene Appellant, Maurice property meaning within the of the Four- teenth Amendment. Texas, Appellee. STATE above,

Under the authorities cited appeals reversing, the court of erred in No. 262-85. severing remanding Adams’ § Texas, Appeals of Court of Criminal against Myers claim and Bonner. Adams En Banc. alleged any suggesting has not facts Myers participated and Bonner either in the 18, 1987. March photo confiscation or that album guards were aware that planning property. It to confiscate Adams’ guards

appears from record that the suspi acting on a on their own based belong photo

cion that the did not album

(cid:127)774 denied, properly

that the trial court after a hearing, appellant’s motion to evi- granted dence. We the second and third grounds appellant’s petition of review in discretionary review consider the holdings correctness of the above Appeals. deceased, August On Ventry Bridges, Claude a doctoral candi- date at University, Texas Tech was to com- plete day qualifying the final of his exami- degree. nations for his doctorate At lunch professor time a and a fellow student be- Bridges came concerned because had failed exams, appear to and decided to stop Bridges’ at home to check on him. They found the front door of the house house, open, upon entering wide they Bridges’ body lying face down. autopsy Bridges revealed that died as a a hard to neck result of blow the which causing larynx fractured his him to suffo- cate. through entry

Outside the window which gained the Cannon, into the deceased’s house was Mary Wiley, Anne G. Thomas jacket police found a red letter with a “C” Brock, Lubbock, Ralph appellant. H. for it, by the affixed to as issued Coronado Montford, Atty., T. Former Dist. John High large green in Lubbock. A School Darnell, Lubbock, Atty., Jim Bob Dist. body. was found near the deceased’s comb Austin, Huttash, Atty., Robert State’s Theory A entitled in Practice was book the State. by police obtained scene because imprint on it. The apparent of an shoe identify ei- deceased’s wife was unable jacket or the comb. ther OPINION ON APPELLANT’S PETITION August three television sta- On FOR DISCRETIONARY REVIEW cooperated police tions Lubbock ONION, Presiding Judge. exhibiting jacket and comb news- Appellant was convicted of murder. the homicide. Viewers were casts about they any convicting punishment police had jury requested assessed his to contact concerning or the imprisonment. appeal convic- information the items life On opin- or owners of the items. unpublished tion was affirmed in an owner Appeals. Dancy v. ion the Court of during August 22nd a p.m. About 4:30 (Tex.App. Amarillo, No. 07-81- State — station about discussion at 0057-CR, 31, 1984). Dec. Tommy told jacket Wilbanks Detective appellant contended, alia, Charley Park that he knew that inter appeal appellant On in the area where (1) Dancy lived that certain as a result Maurice items obtained gone occurred, Dancy had (2) apart- homicide illegal of his arrest and from his High had a Coronado School and issued Coronado pursuant ment to a search warrant recognized that there were improperly jacket. It was without La- jackets Lubbock. a of such against him. The number introduced into evidence produced Wilbanks ter in the afternoon Court of both of these overruled jacket appellant 3rd) photograph of grounds (2nd held of error had been at the station. Ralston informed the taken when apparently February ad- go 1979. The jail needed to booked furnished Wilbanks dress ap- station to talk about the correct, however.1 At the time reported stolen. pellant leads, suspects, no but Park were no there agreed. Ralston testified volun- try Mr. they intended “to to locate testified vehicle, got tarily into the that he did him.” Dancy and talk with place appellant under arrest or hand- him, cuff or read to him Miranda Detective Joe Nevarez testified warnings. way On the to the station Ral- shortly after the television newscasts about they just August ston related “shot the breeze” p.m. on received 6:30 telephone Homicide Division. was no conversation call and there about the speak requested to Detective appellant by The caller him jacket or the offense with Upon Townley. being advised that Ralston, Bill Goolsby. burglary with the duty,” hung Townley “off the caller detail, sought only bring up. A minutes later another call was few actively was the station. He involved for again and the caller asked received investigation. in the At the station Townley’s Townley. When told that it was appellant to he took the the Detective Divi- off, for Ral- day the caller asked Detective then sion and went home. gone ston and was told Ralston had home police station, Upon arriving appel- at day. inquired caller how these warnings given lant his was Miranda at officers as caller need- could reached According p.m. by 7:52 Detective Daniel. ed talk one of to to them. Nevarez told appellant he to Daniel stated understood try caller he would to locate one of the rights his and he indicated he wanted that gave officers have him call. The and caller officers; he to talk had come telephone a he number where could be “down talk the coat that there” to about reached, response in- and to Nevarez’s Appellant had. was not told he Dancy quiry identified himself as Maurice appel- Daniel testified was under arrest. gave and he an address where could jacket as his lant identified the found. Nevarez the call to transferred a torn sleeve and stated “be- because of Park, briefly who talked to the caller jacket missing, cause his was and conveyed information to Ralston Depart- reason he came the Police his home. ment, Appellant jacket.” see then Goolsby picked up Detective Ralston and comb, green a and stated he was shown they arriving given, drove to address like had a “which looked comb p.m. August about 7:30 22nd. Ralston we comb that had.” previous appellant had had contact with give hair sam- Appellant was asked to a (Ralston) a looking when had been for White, who ple to the and Detective family, appellant’s member of the Sam present, gave the stated was Dancy. When Ralston knocked the door voluntarily. no- sample freely and White residence, appellant answered. appellant’s appeared knuckles ticed that There were one or two inside white males Daniel observed be skinned Detective appellant he the house. Ralston advised appel- to be red stains on appeared what had been informed “wanted thought the stains lant’s tennis shoes something,” talk to me about asked (later paint). to be red could be blood shown car, would come out to shoes, to look Daniel asked When appel- car unmarked vehicle. At the gave them to off and appellant took them lant told Ralston “he had seen on TV that voluntarily. They were freely and Daniel coat, might they thought had it Riemer, compared who his, handed to Officer have been because had been stolen print on the book shoes with the day before that.” The was two byor later events. determined then banks was It is not clear from the record whether by Wil- incorrectness of the address furnished homicide scene. It was then deter- Detective at the White testified was according print approximately mined to White booked at p.m. or 10:30 being “could have been made the shoe.” after notified the district attor- ney’s office an arrest warrant had been point p.m. At this about 8:30 White and issued. The record shows the arrest war- proba- they officers determined had other p.m. rant issued at 10:52 District appel- for ble cause to obtain warrant Shaver, Judge acting magistrate. Ap- as a lant’s arrest and contacted district at- pellant arraigned p.m. by a Jus- torney’s legal office for assistance in ob- tice of the Peace. Detective Daniel testi- taining an arrest warrant and a search fied they that once the officers believed officers, According appel- warrant. had they cause to arrest acted as time, lant, placed prior to this expeditiously possible procuring one. request under arrest and he did not asked, petition discretionary in his attempt to leave. When White and (8:30 review contends the point p.m.) that at this erred Daniel stated holding “in was not under they permitted appel- not then have would arrest when items were seized from his they they feared lant leave because persons and such items were admissible might ques- find never him. items appellant’s violation of constitutional and already possession po- tion were statutory rights.” lice. While the “items” are referred to as (8:30p.m.) approximately At the time seized,” “various items” and as “evidence they determined officers are not otherwise identified listed. arrest, appellant exercised his cause for ground An of of error No. 2 in examination rights requested and to contact his attor- appellant’s Ap- brief filed in the Court of ney. Appellant immediately was furnished peals help. opinion the is of no its telephone Attorney Mackey and called appel- to such items that refers Attorney Hancock. Hancock testified as sought by ground exclude of error lant to only suppression the defense witness the comb, jacket, sample hair and No. as the hearing. appellant He testified that called However, jacket and shoes. the comb were talking let-

him and commenced about the They of the crime. found at the scene television, jacket ter that was shown on appellant’s person were not seized from it, up, pick that he “went to it claimed by sought and to be excluded effect,” something indicated he was to that to evidence. It appellant’s motion talking police at the Police to the Lubbock appellant complaining appears then that Department. Asking questions Hancock of the hair of the admission into evidence enough to “he elicited information know sample and the shoes. murder, or either under arrest was being der_” questioning on the mur- when he has been held for “A is arrested taken appellant actually placed to termi- under restraint or

He advised 15.22, Y.A.C. custody_” Article any nate interview. into person has been ‘seized’ within C.P. “[A] Attorney Hancock also testified he ar- meaning the Fourth Amendment the police p.m. and rived at the station about if, the circumstances in view of all to appellant learned had been transferred incident, per- a reasonable surrounding the arriving there at county jail. Upon free to he was not son have believed would p.m. appellant “jail in 9:30 Hancock found Mendenhall, 446 leave.” United States booking They area. talked whites” 100 S.Ct. matters and Han- and discussed financial 497, 509 L.Ed.2d cock to seek a court- advised the argues his arrest occurred repeated ad- appointed attorney; and company residence charge he left his given explained when vice earlier Appel- Goolsby.' being Detectives Ralston booked. on which was telephone prior to his arraignment. lant contends stay Hancock did not try to to police they intended to the p.m. 10:30 call He stated he arrived home about him, Ralston, interrogated way station. He and talk locate contacting Attorney told Detective Daniel and prior appellant, knew other later to the station house Hancock had come strongly suspected appel- was officers it to “talk about the coat" to “claim it." jacket that had been recovered at the lant’s testimony might as to what Ralston scene, Ralston intended to take him happened had refused to station, necessary and if police back voluntarily giv come with him rather than have been used.2 force would jacket about the ing information con investigation general was a There senting police to come station was A jacket crime. and a into unsolved situation, testimony hypothetical to a Arrange comb were found at scene. bearing on the and has little ments were made to show the items on police objectively whether conduct killing. newscasts Of television about viewed, liberty appellant’s restrained reported investigating Wilbanks of ficer showing force authority. See and high ficers that school (Tex. cf. Mallard v. jacket, a number of which Lub 1986).3 App.—Texarkana bock, neighborhood where lived Findings by the trial court should deceased found. He later was able not be disturbed absent a clear abuse of appellant. photograph to locate a of the totality From the of the circum discretion. try Park should decided that ample sup stances there was evidence appellant. to locate and talk to the Such port finding the not ar good practice. have been would residence Ralston as con rested Shortly after the above information was appellant. tended The Court taken, received and before action was regard. Appeals was not error this appellant called under the cir appellant arrived at the When cumstances earlier described. He indicated station, searched, fingerprinted, he was not he wanted to talk to one of two officers. handcuffed, photographed or told say anything He did at that time about arrest, many procedures cus Ralston, question. burglary tomarily an arrest. Detec associated with investiga detective not with the connected give appellant his Daniel Mi tive did tion, appellant was sent to contact at his warnings, mere recitation of randa but There, request. outside the residence at warnings proper is such more indicative car, police the told Ralston had in it is of the officer’s cautiousness than thought seen “coat” television and Gale, 72 Ill. People v. tent to arrest. might that it have been his which had been 23, 562, App.3d Ill.Dec. 390 N.E.2d 921 28 “literally stolen. The thus thrust 944, (1979), 100 cert. den. 445 U.S. S.Ct. scrutiny himself under of the investi 1341, 63 L.Ed.2d 778. gating Ussery officers” as the in defendant 767, (Tex.Cr.App. v. 770 and iden- was shown the 1988). Appellant voluntarily Upon from him. went tified it as the one stolen comb, police green being ar he stated station thereafter. He was not shown comb, undisputed rested, forced, it is nor he had a similar handcuffed or was him, shooting talking I I not about 2. The time? am record reflects: accomplish enough talking force am about given you any you “Q If he had trouble taking downtown? him impression you under have taken would Yes, Ma’am, I we would." believe "A Dancy Maurice downtown? Yes, Ma’am, probably. say, "A I Like Detec- probable in a an officer stated In Mallard Goolsby actually investigating tive case,— was in custo- that the defendant cause affidavit the conclusion stated dy. held that The court Right. "Q binding fact find- on the officer was would, less, up "A it more or —And er, totality must of the circumstances that him. ample time, evi- more than and there was you gone "Q considered And that had Mau- custody door, when he go that was not Dancy’s dence Mallard rice and he refused to had you, you statement. made the oral would have used force gave sample upon voluntarily that he a hair that this amounted to an arrest would be request. After officers noticed red stains virtually any to hold stationhouse inter- shoes, appellant freely gave on his tennis rogation necessarily is so custodial as to upon request. to officers his shoes When person questioned indicate that the has print one of the shoes fit the on the book placed been under arrest. This would scene, the officers found at the concluded request mean that the could not they had cause to arrest and presence anyone, even for noncus- sought legal help obtaining proper questioning todial unless and until Prior to this time warrant. person cause to arrest the arrest, placed and he did not questioned. to be We see no reason to request attempt to leave or to leave. Fur- investigatory so restrict the function of ther, showing no acts an inten- there were 265, police.” Wipfler, Ill.Dec. at custody. into All of tion to take 368 N.E.2d at 873. the above occurred about 38 minutes. In v. (Tex.Cr.App. State No. Shiflet hearing At on motion to 812-82, 9,1985) (not yet reported), Oct. this testify. only did not defense considering Court in custody within the Hancock, Attorney who testi- witness meaning Amendment, of the Fifth stated: giving fied as to facts after the of the hair any are unaware of rule of law “We sample shoes. and the lawfully offi- which forbids constituted 973, Miller, People Ill.App.3d v. requesting persons cers of the law from 42, (1980), Ill.Dec. 412 N.E.2d 175 cert. den. them, providing accompany or of 70 L.Ed.2d transportation to the station or questioned the defendant was as a witness place in some other relevant furtherance suspect, and then became a at which time investigation of a crime. Nor are of an requested the officer he come to station any prohib- rule of law that we aware of “readily and the defendant assented.” In taking voluntarily from its officers holding there was no arrest or seizure with person station or some Amendment, held the Fourth the Court effort to exon- place an other relevant “whether, considering is all complicity from erate such man, circumstances, inno reasonable any are we aware of alleged crime. Nor crime, cent of would have considered reject forbids one to rule of law which arrest, himself under and not whether the If show request. the circumstances defendant, knowledge subjective with his acting upon transportee is fears, himself would have considered invitation, urging request, or even Gale, People v. under arrest.” See also threats, no ex- police, and there are Eddmonds, supra; People 101 Ill.2d he will be taken press implied, 77 Ill.Dec. 461 N.E.2d 347 voluntary, accompaniment forcibly, the Further, presence a at a defendant’s custody. in not then person such is and change by station consent does not words, circumstanc- under those In other subjec by into an officer’s arrest virtue of taken into es, person has not been such tive view alone that the defendant was his deprived of custody or otherwise indicating an free to leave an act absent way. any significant in freedom of action custo intention to take the defendant into Arizona, supra.” v. Miranda Holmes, dy. 482 Pa. Commonwealth v. 97, 393 A.2d 397 voluntarily accom person a Where in officers, then Wipfler, in 68 who are People

What was said v. panies crime, 262, 870, to a 158, investigating a Ill.2d 11 Ill.Dec. 368 N.E.2d of process applicable location, or should is to the instant case. and he knows certain suspect police officers that the know actually place here was no “What took implicated may be committed or may have minimally necessary

more than what was crime, unable to we are committing the investigate successfully * * * the circumstances crime, that under duty. To hold hold as is their 779 his in overrul- fact finder abused discretion his freedom of person is restrained of admitting suppress, circumstances, ing the motion to Under those movement. the items into evidence at the trial. Ussery v. custody. cf. is See and State, State, supra; Martinez v. 635 taken Appellant also contends the items 1982); (Tex.App. 629 S.W.2d pursuant a search apartment —Austin from his (Tex.Cr. State, 410 v. Stone 583 S.W.2d without warrant issued State, Penry v. 691 S.W.2d 636 App.1979); admitted into evidence. improperly State, (Tex.Cr.App.1985); Gregg v. of erred argues Appeals He the Court Gutierrez (Tex.Cr.App.1984); excising por- holding that after false State, (Tex.App. v. 708 S.W.2d 937 there tions of search warrant affidavit —Cor- 1986); Mallard pus sup- Christi probable cause in remained sufficient 1986). (Tex.App. S.W.2d 27 port of the search warrant. —Texarkana v. Dela- Appeals upon of items Franks The Court relies police ware, 154, 2674, the hands 438 U.S. arrest, (1978), requirements thus were not the L.Ed.2d 667 before 18.01(c), Y.A.C.C.P., regard Townsley v. Article illegal arrest, with fruits of an 791, evidentiary of an search war- (Tex.Cr.App. issuance (10) pursuant rant Subdivision issued 1983), court did not err in and that trial 18.02, Article V.A.C.C.P. overruling suppress. the motion to circumstances, is totality warrant affidavit Given search judge trial as a found in the record.4 Court of cannot conclude that the we pertinent part 4. AFFIANT THAT AN OF- search affidavit in YOUR STATES 4. The warrant COMMITTED,TO-WIT: BEEN reads: FENSE HAS homicide, being knowing, Affiant, intentional A undersigned being a "The Peace Of- male, Bridges, killing or about Claude being duly ficer under the of Texas and laws sworn, August Street, following who resided at 2824-23rd on oath makes the state- Lubbock, Texas. The said Claude ments and accusations: COUNTY, stomped Bridges being to death. “1. THERE IS IN LUBBOCK TEXAS, specifically states A AND "5. Affiant that the SUSPECTEDPLACE PREMIS- Your property or that are to be DESCRIBED LOCATED items ES AND AS FOL- described evidence that searched for or seized constitute LOWS:.... alleged was commit- "2. THERE SAID the offense of murder IS AT SUSPECTED Dancy said commit- PLACE AND ted and that the Maurice PREMISES PROPERTY CON- CEALEDAND VIOLATION THE ted that offense. KEPT IN OF property “6. states that the LAWS OF TEXAS DESCRIBED FOL- Your Affiant AND AS located at evidence are LOWS: items constitute premises or of Mau- from on the "1. Several old coins taken the resi- above Street, premises Dancy searched. Bridges to be of Claude rice dence 2824-23rd AFFIANT, Lubbock, AND "7. BELIEF OF IT IS THE Texas[.] envelope plain HE ACCUSESTHAT: "2. A white with the HEREBY day Dancy did on the 21st or about of Danell Mills and J.P. Stevens. Maurice name[s] knowingly (2) August did then and there (prior coins "3. Two old silver dollar individual, 1940). Claude of an cause the death (1) stomping foot. mercury Bridges, by him with "4. One nickel woman’s HAS CAUSEFOR 8. AFFIANT PROBABLE head on it. FOL- BY OF THE SAID BELIEF REASON "5. Other assorted coin collector’s items. Clothing Dancy LOWING FACTS: "6. Maurice worn Park, Affiant, 20, 21, employed August is "a. Charles 1979. Department City Dancy Lubbock Police “7. Shoes worn Maurice on Au- 21, 22, assigned the Detective Division. gust August your ob- Any personal Affiant property "b. On "8. other items of deceased, Bridges body at his of Claude belonging Bridges, served the dead to Claude or Street, Lub- Mary Bridges, residence located bock, 2824-23rd his wife. body blougeaned Said had been PLACE AND PREM- Texas. 3. SAID SUSPECTED (sic) severely IN OF CON- beaten. ISES ARE CHARGE AND jack- letter "c. Affiant observed a red BY THE Your TROLLED EACH OF FOLLOWING High bearing ‘C’ et the letter for Coronado PERSONS: Lubbock, by found Dancy, Texas was "1. Maurice a black male School in DOB/02- August of 2824-23rd Street window 29-60 persons "2. Person or unknown to affiant upon misrep- relied observed that “... where the makes a defendant resentations of material facts which were preliminary showing substantial that a recklessly made and knowingly false false statement and intention- (f), (i) subparagraphs (g) ally, found in disregard with reckless truth, paragraph by 8 of the affidavit. court was included the affiant in the (f) affidavit, subparagraph allegedly found the statement warrant and if the jacket necessary false claimed the was true statement is to the find- cause, ing probable was in error. The Court the Fourth find, however, requires hearing Appeals Amendment that a did request. held at the In the subparagraph (g) that affiant statement in defendant’s hearing allegation shoes, event that at that appellant’s Park had observed tennis perjury disregard or reckless is estab- (i) Park subparagraph and in that affiant by preponder- lished by the defendant wife to personally had taken the deceased’s evidence,' and, ance of the with the affi- record, the crime scene were false. side, davit’s false material set to one however, support does not the Court remaining affidavit’s content is insuffi- finding subparagraph (g). Appeals’ as to cause, cient to establish hearing affiant Park suppression At the search warrant must voided and the personally observed the red testified fruits of the search excluded to the same appellant’s shoes at the stains on tennis lacking extent as misrepre- If station. there were (Emphasis on the face of the affidavit.” sentations, (i) subparagraph where it is supplied.) “personally” affiant Park stated he took to the scene of the the wife of the deceased The Court also stated: crime, despite etc. It is here observed that Frankel, Judge “... United States (i) (g) findings subparagraph as to its (S.D.N. 1002, 1005 F.Supp. Halsey, that the remain- the Court of held aff’d, (CA2, Y.1966), Docket No. for a search warrant der of the affidavit 12, 1967)(unreported), put the mat June for the issuance of a search was still valid simply: the Fourth Amend ter ‘[W]hen authority and items under its warrant showing demands a factual suffi ment admissible, citing Brown v. cause,” comprise “probable cient to (Tex.Cr.App.1980). assumption that there will be a obvious original). showing’ (emphasis Franks, supra, the United States Su- truthful ‘truthful’ in the does not mean This preme Court stated: por- appeared to Affiant that person, shoes. It also knows the Mau- "d. Your Affiant of the said Maurice Dancy, the tennis shoes Street tions of Dancy rice who lives at 2826-24A Texas, (1) paint Lubbock, painted red (rear), been over approximately one spots. of the red killing substance in the are at 2824- a red block from the scene of the stated that Your Affiant further "h. Street. 23rd 22, 1979, Dancy lettered at Coronado August said Maurice Channels "e. On found, County, State of Tex- High as, Lubbock jacket School in on the 6:00 and 28 showed the year photo appears in that school’s and his pm assistance from the news and asked for jacket. locating book. public of said owner personally took the wife August Affiant approximately pm “i. Your "f. At 6:30 Street, 22, 1979, Bridges Lub- to 2824-23rd Dancy of Claude called the Maurice coins, bock, several old this date and asking speak Bill Texas department to Detective dollars, (2) detective, and other assorted Dept. old silver two Townley, Lubbock Police missing from the said items were police de- coins and Subsequently, arrival at the after deceased, Bridges, premises where Claude Dancy partment, Maurice claimed the said wife, ‘C, Bridges, Mary reside. jacket, as his own. red with the Letter pho- a color j. Affiant has examined Dancy Your "g. When the said Maurice Dancy the Lub- made tograph of Maurice your claiming jacket, Affiant ob- the said February Department on bock Police appeared be a red substance served what Maurice photograph the said Dancy shows and said Dancy wearing splattered on the tennis shoes Maurice letter Coronado body a red wearing. Your Affiant observed appearance to the one Bridges appeared identical he was and it Claud[e] Street, Lubbock, August Texas on imprints stomped resem- 2824-23rd 21, on the neck bling markings 1979....” bottoms of tennis made suppress appellant In his motion to every fact recited in the war sense correct, necessarily sought suppress both items obtained as is affidavit rant upon may illegal be founded of probable cause a result an arrest items upon information received a of an execution of hearsay seized as result informants, upon as well as infor Referring illegal from search warrant. affiant’s knowl the own within pursuant mation items obtained to the search war- garnered must be edge rant, sometimes alleges: suppression the motion surely it is to be ‘truthful’ hastily. But consequent “The search and seizures put the information sense the illegal by these virtue of of items were appropriately accept forth is believed in the search warrant and certain defects true.” ed are 98 S.Ct. the affiant upon in the affidavit which the search 2681. issued, warrant to wit: The affidavit for wrote: the search failed to state Still later the Court warrant facts sufficient to constitute cause today reluctance to extend “... Our warrant; for the of the search issuance beyond instances the rule exclusion of objects the seized were described to be so misstatements, and those deliberate of broadly general as to constitute a search disregard, leaves a broad reckless of field where warrant; for the the affidavit search magistrate the sole is proba- warrant states facts to constitute protection of a citizen’s Fourth Amend- the fruits of namely, in ble which were rights, instances where ment illegal and seizure merely negligent arrest and search of police have been recording checking or the facts relevant Defendant.” probable-cause determination.” a Clearly by his motion added.) (Emphasis 98 S.Ct. at 2683. pre “a substantial failed to make State, Ramsey v. S.W.2d 922 liminary claim. showing” of a Franks pointed (Tex.Cr.App.1979), this Court out U.S. at 57 L.Ed.2d at S.Ct. Franks, in order to entitled supra. Ramsey, 672. See “Absent hearing evidentiary allegations to an on the showing as a Frank hear would warrant affidavit, concerning veracity of the beyond ing, this Court not look will defendant must: Ramsey four corners of the affidavit. Allege deliberate “1. falsehood supra.” Brooks v. disregard reckless truth (Tex.Cr.App.1986). 796-797 affiant, specifically pointing out There, course, hearing on of portion to be claimed affidavit In the course of his suppress. motion to negligence in- Allegations false. matters, Sgt. testimony on number of insufficient, mistake are nocent Park, affiant, he and other testified allegations must be more than con- sought legal aid of district officers clusory. search warrant attorney preparing the Accompany allegations “2. these affidavit, an hour and a that it took about proof stating sup- with an offer of it, typed by prepare and that it was half to Affidavits or other- porting reasons. attorney. On direct an assistant district wise reliable statements witnesses was asked: Sgt. Park examination not, If should be furnished. the absence “Q everything Is there [affidavit] allegations support written your true to the best and correct satisfactorily explained. must knowledge? portion that when the of the “3. Show Yes, “A sir it is.” alleged to be false is excised affidavit following infor- On cross-examination affidavit, remaining content from Sgt. Park: was elicited from mation support issuance insufficient Now, understanding you warrant. did “Q my isit go to the victim’s out (Emphasis supplied.) back at 2685.” home? Ramsey at No, deceased, Mary “A ma’am. and Bridges, wife, resided.’ “Q preliminary After initial investi- the gation you-all today “The affiant on the did on 21st? stand said had discovered found a comb White where later that concerning the hearing, appellant’s counsel stated: suppression hearing taken was false. did not truth, to the vit that ment, ally misrepresentation, was a apparent asked whether the statement was never as to tion and execution of Detective spoken graph “A No.” “Q Okay. “A I “A “Q day “Further, argument following Mary other or was scene related pened,’ at all? Detective White didn’t Laura Did No, Park after the acknowledge just (i)], made day. inconsistency. He asked for an case, killing you, yourself, “personally” Louise ma’am. this George circumstances was a was not further said a (Sic.) Bridges? coins and comb but no some old No discussions mistake, point,5 other relayed Paragraph alleged offense, Bridges to the occurred, the State has knowingly reckless White testified at the did not few detailed her about than, it did coins took Mrs. explanation etc. on says: words to her. ever the information that. affidavit. disregard August belong ‘Sorry in missing, He interrogated to Sgt. or I talk suppression information false ‘Your affi- concerning the affida- statement [subpara- residence anything. intention- certainly prepara- Bridges already to Mrs. he had it there. never state- 22nd, Park hap- she for He I State, 631 S.W.2d 480 relevant tion,” Franks, 98 Brooks v. gent such, (opinion ed. lessness (Tex.Cr.App.1983),U.S. cert. statement with the “where the Clayton Further, if the statement was an instance there is (Emphasis sentation premises. Another misstatement. not a are I is tation, agreed statement, agreed Paragraph personally taken the wife out to the concerning these ment. in no, He knew had not had “If it is not a 104 S.Ct. it n he had not claiming wrong, agreeing There was type as checking to a may in hall, It is that purposeful misrepresentation, beyond rehearing) contemplated by their nothing. ^[*] supplied.) but it I must subparagraph the affidavit. it contest to that but had no ... Paragraph contact wrong, it knowledge, at supra, please argument gone have been n purposeful misrepresen- to be a S.Ct. at no this coins, 79 L.Ed.2d 181 is, He had talked to her recording go. and cases out to the pale and in showing time that (Tex.Cr.App.1982) l|C purposeful fact, 797; I is a and he had not that The State has the State questioned intent, of Franks. Court, Mary I den., 464 (i) Franks. See merely negli- don’t believe point, # Ellerbee v. a misstate- was made determina- Paragraph misrepre- there house, that Bridges. then as or reck and it (1984); now.” facts I am >ft even U.S. mis- cit her we he Franks, the false statement personally ant the wife Under took of Claude 23rd, Lubbock, Texas, must either in Bridges affidavit have been 2824— (2) disregard date, coins, made with reckless this old tentional or and several two truth, dollars, and must have been neces silver and other assorted old cause, in missing sary finding from the coins items were invalid. order to render the warrant premises Bridges, said where Claude scene, taking Bridges argument Mrs. to the but 5. The State its trial Park noted in inconsistency apparent such would not in itself ren- court the contended between testimony allegations affidavit invalid. in the dered the affidavit 155-56, Franks, “voluntarily,” apparent force supra, 438 98 S.Ct. no car clear, authority. Not at all A in an 2676-77. misstatement affidavit show hand, is downtown simple negli- the other that he went merely the result that is sample relinquishing of any with intent inadvertence, opposed to reck- gence or as giving truth, or of over a shoe. The of his hair disregard for the will not less render proof squarely falls on the State 171, burden of on it. Id. at the warrant based invalid scope appellant’s con prove of 2684; Carlson, that the v. 98 S.Ct. United States Gregg to these matters. See sent 231, (8th Cir.1983); extended 238 F.2d United 697 State, 125, (Tex.Cr.App. 128 v. 667 S.W.2d Hole, (9th 298, 564 F.2d 302 Cir. v. States 1984). appellant purport the time Yet Botero, 1977). 589 See United v. States edly this evidence supply “volunteered” (9th Cir.1978). 430, 433 F.2d himself, against already he had been sub proved alleged nor The neither jected for to “seizure” Fourth Amendment any under that he was entitled to relief purposes. Franks. Distinguishable from this case is Clark is judgment the Court (Tex.Cr.App.1982) 693 627 v. affirmed. Rehearing), (Opinion Motions for voluntarily to went defendant CLINTON, Judge, dissenting. police of a police request station at the he majority holds that at the time knew. At the station he consent- he officer downtown, police go entered the car to formal- fingerprinted, and was not ed appellant was not of his free- “restrained fingerprint after ly until his arrested 15.22, dom of movement.” Y.A.C. See Art. compared found at the scene of to one Hardinge C.P. v. the defendant crime. This found 870, I (Tex.Cr.App.1973). Ultimately 873 for Amendment not “seized” Fourth conclusion, agree that I cannot but gave fingerprint he purposes until after agree analysis. my ends In that this decision, arriving In at that exemplar. view, notwithstanding that volun- however, significant found the Court downtown, tarily accompanied the officers told he was fact the defendant was taking he of a by the time to the submitted light In of that leave at time. free to sample hair and surrendered his tennis circumstances, “a reasonable and other shoe, he found under circumstanc- himself he was have person believed would amounting authority” es “a show of Clark, 700, citing supra at free to leave.” person such that “a would reasonable contrast, Mendenhall, By supra. that he free leave.” believed was not leave, told was free to herein was not 544, Mendenhall, United States v. 446 U.S. At the in fact he was not. 1870, (1980); Flor- 100 S.Ct. 64 L.Ed.2d 497 office with taken into an station he was 1319, 460 Royer, ida v. U.S. 103 S.Ct. He was investigators. four three (1983). 229 75 L.Ed.2d warnings. his given Miranda1 promptly appel- for reasonably been reasonable It is con would have clear It when he was under arrest go sented to to the station to lant to assume discuss rights.2 informed of his custodial jacket. matter of the At least he was letter a reason- light these testified circumstances the officers he entered self-incrimination," Arizona, surely considered S.Ct. must 1. Miranda v. 86 been objective “ha[d] 16 L.Ed.2d 694 indicator deprived custody of his or otherwise into taken freedom warnings may reading 2. While the of Miranda significant way." in [some] action majority indicative to of this Court be more L.Ed.2d at U.§. proper “of it is of the officer's cautiousness than appellant’s shoes reasonable man in 706. Is the arrest," layperson, daresay typical I intent to having custody” purposes of "in to believe his recite him heard officer rights Amend- the Fifth determining ment, his "rights,” quickly free would he was not conclude sufficiently invoke restrained but not go. to by exercising That officers demonstrate caution should enjoys Fourth? under the those he "procedural safeguards” Mi- those against privilege randa dictates "to secure the truth, disregard were included position would appellant’s able so, affidavit, false liberty and if whether the he was at concluded that not have Moreover, finding necessary as Flor out. statements simply to walk appellant gave appeals the time cause.” The court Royer, at ida shoe, “the detention sample subparagraphs tennis hair that several subjected “false,” but, was a more he was then to which without affidavit were indeed liberty personal intrusion on deliberately serious passing on whether suspicion of crim mere so, than allowable recklessly even their held that 502, 103 S.Ct. at activity.” 460 U.S. at inal absence, supplied the affidavit Here, 1326-27, L.Ed.2d at 239. now maintains that with- cause. there, “[wjhat begun as a consensual subparagraphs, .allegedly infected out the jack not a letter to whether or inquiry” as reply, is deficient. the affidavit belonged appellant, “had escalated et nothing disputes this contention—and State investigatory procedure in a into an posture in which That is the more. room, un police, interrogation where posture That is the us. case comes before previous explanations,” viz: satisfied it. should decide we him, stolen from had been reasons, respectfully foregoing I For suspicions.” 460 their “sought to confirm dissent. 503, 103 75 L.Ed.2d S.Ct. at U.S. at JJ., DUNCAN, join. TEAGUE pat procedure” was “investigative This po only information the illegal. The ently time was

lice had at that neighborhood and

lived deceased’s had been sto he claimed jacket, which him, found outside had been len from These of the murder. at the scene

window strong suspi given rise to may have facts of appellant was involved cion that Jones, SMITH, A. David Randall James it, something but about fense or knew Mitcham, Charles David to arrest. probable cause short of fell well Relators, Freeman, 770-71 Ussery v. there Appellant was (Tex.Cr.App.1983). Auditor, FLACK, County Lind- hair sam Jon illegally detained when fore J.F. Lee, surrendered, County Judge, Jim say, El Franco shoe were ple and tennis Eckels, Lyons, vitiated. Fonteno, E.A. taking was to their Bob any consent (Tex. Commissioners, Respondents. Daniels v. items should Cr.App.1986). These No. 69676. suppressed. been Texas, of Criminal is- v. Delaware3 Turning to the Franks En Banc. appellant for fail- sue, majority faults procedural through ing pass all 22, 1987. April determi- appellate hoops necessary for an In this claim. merits of his nation of the point did the at no I note

context defect, and that complain of this

State appeals the to the court

fact in its brief motion to that the

State conceded conducted, deter- part, “to

hearing' was statements, allegedly false

mine whether in reckless intentionally or

knowingly 57 L.Ed.2d

3. 438 U.S.

Case Details

Case Name: Dancy v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 18, 1987

Citation: 728 S.W.2d 772

Docket Number: 262-85

Court Abbreviation: Tex. Crim. App.