Diehl v. State

WARREN, LEVY, Before DUGGAN and JJ.

OPINION WARREN, Justice. appellants

Thе trial court convicted possession marijuana and assessed each appellant’s punishment years proba- at 10 ground ap- tion. In their sole of error on peal, appellants allege that the trial court refusing grant erred in their motion to suppress Appellants argue the evidence. that the search warrant was on an affidavit which did not show cause.

The affidavit on which search reads, pertinent warrant was issued part, as follows: Hernandez, Affiant, being given Terry principal to undersigned a Peace re- High Texas and be- School and was Officer under laws of Manvel Junior J_R_in sworn, duly on makes fol- Ter- ing oath to peated Affiant accusations: lowing statemеnts and presence. Affiant ry Hernandez [sic] years for four juvenile 1. THERE IS IN BRAZORIA COUN- has been a officer TEXAS, A TY, PLACE had capacity SUSPECTED in her has the occassion AND PREMISES DESCRIBED AND juveniles to on numerous interview [sic] story AS One LOCATED FOLLOWS: upon expe- her occassions and based [sic] family dwelling, brick red with brown given rience the information R_ trim, county J_ located at Rt Box 61 road testimony believes Alvin, County, ap- Brazoria information is true and correct. proximately 150 of intersection feet east not Appellant argues that the affidavit county Rd. 99 side with on the south probable for sever- sufficient show cause buildings and County Rd. 948 and out al reasons: premises. & trailers vehicles at said 1) old, years had The informant is she AT 2. THERE IS SUSPECTED SAID given be- never information AND PREMISES PROPERTY PLACE fore, she make a sworn statement did not AND IN CONCEALED KEPT VIOLA- police, is no indication to and there OF THE OF TEXAS TION LAWS AND why the found her as affiant information Marijuana AS FOLLOWS: DESCRIBED reliable; credible plants marijuana and harvested 2) any indepen- There is indication of no 3. SAID SUSPECTED PLACE AND police investigation dent to corroborate ARE IN PREMISES CHARGE OF AND any informa- details of the informant’s BY EACH OF THE CONTROLLED tion; FOLLOWING PERSONS: Brabara [sic] Raymond 3) Charles Diehl There no indication that the infor- AFFIANT, capable recognizing mant was mari- IT IS THE BELIEF OF juana; AND HE HEREBY CHARGES [sic] ACCUSES, AND THAT: Barbara and 4) specific describing No details the mar- Diehl, untentionally Raymond [sic] ijuana possession provided are knowling possess quantity a usable [sic] affidavit, conclusory state- marijuana in excess of four ounces descriptiоns ment the informant’s 5. AFFIANT HAS PROBABLE CAUSE given “could affidavit

FOR SAID BELIEF BY REASON OF it” someone observed was not suffi- who THE That she FOLLOWING FACTS: finding upon which a cient to show facts juvenile officer with the Brazoria Coun- probable could be made. cause ty Department has reason Sheriffs magis- must whether the We determine upon the information believe issuing instant trate the warrant J_R_, given age to her reason case had a for conclud- substantial Diehl, child of who re- natural Barbara probable cause existed to believe ing that residence, that on De- sides at the above appel- marijuana be found at would day] she cember same ob- [the Gates, Illinois v. house. lants’ marijuana at served a usable amount residence. Affiаnt has reason the above Gates, said the Court the U.S. information credita- believe following: ‍‌‌​‌‌​​‌‌​‌‌​‌​‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​​‌​‌‌​‌‌‌‌‌​‌‍following reasons: ble [sic] J_R_concer- issuing magistrate The task of the given information practical, common simply to make a cultivation, growing, nin [sic] whether, given the cir- sense decision marijuana harvesting of of such a was in the affidavit be- set forth specific cumstances and detailed nature that it could him, “veracity” and including the fore given by someone observed only be who persons supply- knowledge” previously it. “basis Said information had been ing hearsay information, there is a fair merely instead described that information probability that contraband or evidence as convincing and concluded that the infor- of a crime will particular be found in a truth, telling mant was the affidavit place. give could magistrate sufficient support facts to finding 103 S.Ct. at 2332. Texas has followed the cause. A search warrant must contain “totality of the analysis circumstances” “sufficient facts satisfy issuing ... to Gates in Hennessy v. 660 S.W.2d 87 magistrate probable that cause (Tex.Crim.App.1983). does fact question Our exist for its issuance.” reasonable, whether a Tex.Code Crim.P. prudent, and de- 18.01(b)(Vernon Ann. art. magistrate Supp.1985). tached The could read the affidavit purpose of an underlying the instant affidavit case and believe that a a search crime warrant probably give independent was is to an being by magis- per- committed sons trate all place and at the named in the affida- information available so may vit. that he make the determination of probable whether cause exists to issue a The argues state that the affidavit search Aguilar warrant. was sufficient to magistrate allow the to probable find by inferring cause from the (1964). Appellant argues that the officer in given facts marijuana that the described preempted the case at process by bar that the informant quantity, was usable that judging the information for herself rather the informant had an opportunity to view giving magistrate. than magis- to the A marijuana because of her trate merely is not entitled to ratify the aрpellants, that the informant was able conclusions of the officer having without recognize marijuana because she had sufficient information on which to base his been by appellants, educated about it and judgment. Gates, 103 S.Ct. at 2332. How- that capable the officer evaluating was ever, we hold that the affidavit did contain reliability informant’s veracity by sufficient factual give information to training. virtue of her magistrate probable cause to issue the According provisions of Tex.Code search warrant. 18.04(2)(Vernon 1977), Crim.P.Ann. art. The informant in the affidavit was search “identify, warrant must as near as named, so there was no need to indi- be, may that which is to be seized and why cate her information wаs believable. describe, be, name or as near as searched, She lived at the residence to be person, place, thing or to be searched.” In ability so that her to observe the contra- case, the instant alleged place band was not at issue. We also note that offense is painstaking described in detail growing marijuana, processed unlike persons affidavit. The named are the drugs, easily recognizable, both step-father mother and of the named infor- odor, distinctive mant, leaves and the se- so there is little chance of confusion crecy normally grown with which it is identity. illegal drug mistaken processed. The informant’s detailed de- specifically marijuana plants named: scriptions given to the affiant would have marijuana, merely harvested rather than given “drugs” magistrate even more reason “powder” “substances be- probable believe that cause lieved to be narcotics.” The existed to issue named infor- warrant, mant allegedly marijuana saw the but the omission of this infor- on the day same the affidavit mation from and warrant were the affidavit was not fatal. executed, rather than vague at some time We hold that the trial court did not err in past. in the refusing grant appellants’ sup- motion to press. insist, Appellants however, that because

the officer in the instant Appellants’ ground overruled, case did not relatе of error is in her affidavit the details of the judgment informa- of the trial court is af- given informant, tion to her firmed. LEVY, Justice, dissenting. given by who someone observed it_ juvenile Affiant has been offi- questions, disagree On two serious I with years capacity and in her has cer for four majority. juve- to interview had the occassion [sic] niles on numerous occassions [sic] PART ONE experience ‍‌‌​‌‌​​‌‌​‌‌​‌​‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​​‌​‌‌​‌‌‌‌‌​‌‍her and the infor- upon The Search Warrant testimony of given mation [the agree I officer’s cannot information is true and believes the child] factual in- affidavit contained “sufficient correct. give magistrate probable formation magistrate provide the An affidavit must cause issue the search warrant.” detеrmining with a basis for substantial elementary passing It is on the cause, the existence of validity warrant, reviewing court officer wholly conclusory statements of brought consider the information simply require- meet this Milstead failed to magistrate’s Hen to the attention. What gave conclusory ment. These statements Milstead, juvenile investigator the rietta virtually magistrate the no basis at all for Depart County Brazoria Sheriff’s with the making independent judgment regard- an ment, by way of might have had additional ing probable cause. information, consequence. is of no See issue, then, question is whether at 1, 109 n.

Aguilar v. U.S. magistrate the could credit affidavit 1, 12 (1964). 1511 n. L.Ed.2d 723 S.Ct. his func- abdicating without constitutional The record that Mrs. Milstead reveals requirement of tion. The constitutional informant, 11-year-old spoke with cause, though can probable be satisfied Diehl, child of Barbara for “a little an over information, by hearsay must be deter- hour,” indepen no and that Milstead made magis- by a and detached mined “neutral investigation dent whatever to corroborate trate,” engaged in “the officer tip: check she did not school records to enterprise competitive of ferret- the often determine whether either the child or the ing crime.” v. United out Johnson appellants at lived the address described 367, 369, 92 L.Ed. S.Ct. U.S. warrant, appel the search nor whether parents in fact lants were the child’s guardians, any nоr did she interview Gates, 213, 103 Illinois other students or teachers to determine the (1983), heavily 76 L.Ed.2d 527 reputation informant’s for truth and veraci majority, the relied on had ty, or check to see if the informant apply- that its decisions Court admonished juvenile record, talk nor did she with the analysis ing “totality circumstances” verify 14-year-old sister to informant’s value of consistently recognized the “have informant’s accusations. an informant’s of details of corroboration police tip independent work.... [A]n admitted that she would not Milstead hearsay not to relying on be affidavit gone appellants’ home without score, long on that so deemed insufficient she did not think a search warrant because crediting the basis as a substantial warrant, that, she in the absence of (em- Id. at 2334. hearsay presented." probable search for the mari- had cause to added). phasis And the Court further affidavit, juana. upon In her which the magistrate warned “rubber warrant, magistrate she issued his search police investigations by ig- stamping” her information as credible be- described obligation to make noring his constitutional cause: independent an determination: given by conc- the information child] [the presented cultivation, information must growing, be ernin Sufficient [sic] official magistrate allow that harvesting marijuana of such a was cause; can- probable his action that it could determine specific аnd detailed nature not be a mere ly ratification the bare magistrate’s counted determina- conclusions others. tion, but rather that it needed much further specific and more support. at Id. 2332.1 It conjure would indeed up circumstances, be difficult Under these the review- appropriate subject ing more for the keep Su- court must simple mind that preme Court’s good admonitions than the case at part faith on the of the officer is not Here, bar. the search warrant affidavit enough to justify upon intrusions constitu- predicated upon hearsay information of tionally guaranteed rights. Recently, the a first-time years informant who is 11 old Supreme Court principle: modified this completely unknown the affiant be- exclusionary rule be if applied need not question. fore events in Although (the good officer relies in faith bur- year affiant swore her 11 old infor- den proving “good faith” remains with reliable, mant magis- was she offered the State) magistrate’s on a acceptance prior experience sup- trate no reason affidavit, his magistrate’s even if the deter- port of this conclusion. The affiant testi- mination of cause is later found to fied, example, that the child had told — wrong. Leon, United States v. principal, Hernandez, the school Terri -, she and her sister were forced to smoke officer, course, An is not autho- marijuana, but when ques- the child was quеstion rized magistrate’s determi- affiant, tioned by the child denied mak- of probable nation cause after the warrant ing an Certainly accusation. this ex- subjective If good issues. faith alone were ample the imagination, shows fanciful and test, Fourth protections Amendment propensity dramatize, that are so against unreasonable search and seizure age, characteristic of a child this which evaporate, people would would be should have alerted the affiant to conduct houses, persons, “secure in their papers, independent police an investigation to veri- and effects” in the discretion fy Perhaps important the facts. more even 97, Ohio, 89, police. v. 379 U.S. Beck 85 give is the fact that the affiant does not 223, 228, (1964). S.Ct. “No sufficient in statement the affidavit of the sacred, right is held more or is more care- underlying from circumstances which the law, fully guarded, by the common than informant concluded that her mother and right every posses- individual stepfather were illegally growing pos- or of his person, sion and control own free sessing marijuana. Nothing in the affida- others, from all restraint interference vit the warrant indicates how the child unquestionable unless clear and authori- marijuana knew what orwas how she could ty Railway of law.” Union v. Pacific identify it. any exper- It does not mention 250, 1000, 251, 141 11 Botsford, U.S. S.Ct. might tise the affiant herself had in 1001, (1891). L.Ed. 35 734 is, identifying marijuana. The affidаvit trite, perhaps necessary, It appears therefore, seriously lacking specific in the not repeat here that a search is to be necessary magistrate facts to justify the in law, it it up. validated what turns issuing a warrant. The Court has good change initio or bad ab and does not [tjhis specificity held that “... demand for Or, character from its success. in the upon police in information which action Frankfurter, words Mr. Justice “Vindi- predicated teaching central this anticipation illegal cated an what search jurisprudence.” Court’s Fourth Amendment 18, reveal does not oth- Terry Ohio, 1, 392 21 validate search v. U.S. n. 88 S.Ct. 1868, 18, (1968). illegal.” States, n. 20 I erwise v. Lustig 1880 L.Ed.2d 889 United 74, 80, 1372, say do not the information 338 69 was so U.S. (1949). insubstantial proper- could not have L.Ed. 1819 Appeals applied 1. The Court of Criminal has noted that the informant’s detailed informa “totality analysis Hennessy substantially of circumstances” in tion "was pendent corroborated inde (Tex.Crim.App.1983), police investigation.” v. 660 S.W.2d 87 Id. at Although majority’s apparent position, I realize I feel that it is that affidavits probable cause are tested much less necessary to face the issue rigorous governing standards than those just to reach and salu- squarely order trial, admissibility at v. McCray of evidence case, tary result in this because the most 300, 311, Illinois, 386 U.S. 87 S.Ct. intimate, serious, far-reaching social (1967), 18 L.Ed.2d here, involving values are conflict probable by issuing determination of сause relationships very nature of the between magistrates paid should be considerable individual, family, State.2 courts, by reviewing deference I am satis- outset, At the it must be observed that lacking ‍‌‌​‌‌​​‌‌​‌‌​‌​‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​​‌​‌‌​‌‌‌‌‌​‌‍fied that this search warrant so parent-child appellants not did invoke probable in indicia of cause that it could not timely privilege as the basis for their filed seriously diluting sustained “without im- gen- suppress, alleged motion to but rather portant safeguards that assure that cause, erally the lack of which judicial judgment a disinterested officer opin- in PART ONE of was discussed this interpose itself will between Appellants’ failure to raise issue ion. citizenry.” Spinelli v. United given state dispositive, the bereft 584, 590, 89 S.Ct. immunity Texаs; parent-child the law on L.Ed.2d 637 not, words, a it was in other conscious relin- in the sense of an “intentional waiver

PART TWO quishment or of a known abandonment Privilege Parent-Child Zerbst, right privilege.” Johnson willing, I majority appar- am not as the 1019, 1023, 82 L.Ed. is, ently bypass readily, so or in fact to Because the constitutional ignore, presence significance significance stature and transcendent social parent-child relationship prose- in criminal I the trial privilege, of this would hold that signifi- relationship, cutions. That and its grant appellant’s failure to motion court’s cance, are not at mentioned suppress was fundamental error. this, court’s of discussion. Because and jurisprudence, Texas like that of Our paucity subject, the the I of case law on States, many gaping has a hole other must in majority’s assume that view protection of intrafamilial rela- where some parent-child privilege simply non- tionships should void is contemplation, in be. This legal existent of little because, shocking conspicuous and consequence determining or no in more whether upon any specific judicial suppress being the motion to should have been not parent-child privilege, repudiation sustained. of a it incompatible with our nation’s tradi- so disagree With conclusion I and values, tions, It not too and conscience. suppress hold would that the motion to integrity and inviol- rhetoricаl to assess granted. not should been We should family loyalty, ability unit—and the of the law, be, ignore may the case scarce as it trust, normally exist and confidence emphasizing family of significance parent-child relationship “so within —as expanding realm of constitutional of in the traditions and conscience rooted sanctuary protection private we accord the as fundamen- people our as be ranked family ignore the of life. Nor should we Massachusetts, 291 U.S. Snyder tal.” v. family units preserving social interest 330, 332, 97, 105, 78 L.Ed. 674 54 S.Ct. exchange informa- and the confidential of been (1934). family The unit itself has tion them. If we are indifferent within privacy of the United right afforded a interests, will at the it be values Court, eligible thus is allowing growth of of States immediate risk protection from harmful intrusion hostility to In contrast to the State them. 1984 Friendship, stimulating Levinson, Privileges discussion and the 2. For an innovative and of Preferences problem, Duke S. L.J. of this see Testimonial 718 right. intrusion,”

the State that violates only against See able not physi- City Cleveland, Moore v. East 431 U.S. cal prohibited by intrusion the Fourth 494, 1932, (1977). 97 S.Ct. 52 L.Ed.2d 531 Amendment, but against also that intrusion parent-child Does a privilege, formulated to which integrity would interfere with the protect a our history whole life, family “something so fundamental desirable, traditions have deemed socially that it has been found to protec- draw its outweigh the compelling State interest principles tion the оf more explic- than one full disclosure of relevant facts? Is the itly granted right.” constitutional 367 U.S. State’s privacy invasion fami- 497, 551-52, 1752, 1781-82, 81 S.Ct. 6 ly relationship high price pay too a (1961). L.Ed.2d “Privacy” 989 clearly possible compelled benefits of disclo- absolute, not an but nevertheless is a vital sure? concept gains that on occasion content from the specific guar- emanations of other meaningful problem A discussion of this antees, experience or from with the re- necessarily origin would include the of the quirements a progressive free and socie- right of privacy. Although explicitly ty. concept static, This is not fixed or Constitution, mentioned our federal it evolutionary, absorptive power- apparently penumbra derives from “the ‍‌‌​‌‌​​‌‌​‌‌​‌​‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​​‌​‌‌​‌‌‌‌‌​‌‍ful dynamic social (other) society. standards our rights” specifically constitutional “A principle, vital, to be must enumerated, capable Griswold v. 381 U.S. application wider 1678, than the mischief which (1965), gave States, it birth.” v. Weems United early expres- received its and classic 349, 373, sion S.Ct. words Justice Louis D. Bran- L.Ed. apply right To nar- déis: rowly or begrudgingly treat as The framers the constitution con- —to aberration, merely historical at most to be ferred, against government, as ignore development tolerated —is right compre- to be let alone—the most purpose. protec- Time has not shown of rights right hensive most val- against right tion from the evils which this uеd civilized men. was directed is or unwarranted. needless Olmstead United L.Ed. 944 Because constitutional stature of right of privacy, privilege foreclosing right to privacy may regard- well be compelled voluntary disclosure of value, ed of great protection as family confidential one information family innocent and of the though unit member another be viable safeguard shelter to the guilty, and a prior judicial in even the absence of against prosecutions family destructive to legislative recognition privilege. of such relationships. Where, cases, in the most serious funda- Legalities of intrafamilial communica- involved, rights deprivation of mental are tions, then, justified must be in of terms shocking truly is the conscience as which right penumbral privacy, of which at- mind, may rightly well as the the courts guar- of tained status a constitutional by invoking protect intervene to them Accordingly, antee in a Griswold. Constitution itself rather than their discre- right should be accorded liberal construc- powers. tionary in privacy tion favor of the it was intended privilege to secure. The Creation of such a Court determined testimonial Massachusetts, 158, in represents judicial Prince v. a determination —either 438, 166, 442, (1944), fostering 64 88 legislative L.Ed. 645 certain rela- —that is “private family tionships outweighs that there a realm of life potential benefit to judicial system compelled which the state cannot enter.” Justice disclosure. in privileged generally Harlan concluded his dissent in Poe v. The is one relationship protects requires confidentiality Ullman that “the constitution and trust privacy against optimally. By of the home protecting unreason- function eommu-

719 confidence, commit, In no case of privilege a a crime or fraud. nieations made preserves privacy testify right prosecution may spouse a both criminal a open relationship encourages against (this disqualification, communi a is other same cation between others involved privilege, in Tex.Code merely a codified privileges type of Testimonial association. 1979]), ex- Crim.P.Ann. art. 38.11 [Vernon attоrney and for communications between cept for an committed one offense client, wife, peni priest husband and other, spouse their against the tent, physician patient have be incest, child, bigamy, or in certain cases recognized, completely ac come but not custody, with child or non- interference family cepted, parts of American law. support. may Either be witness for relationship judicially safeguard cannot be prosecution. in criminal Niles other See expectation in the of an ed absence State, 447, 284 v. 104 Tex.Cr.R. S.W. 568 privacy communi protected in intrafamilial (1926); State, supra. Bell Rea- see also v. cations, expectatiоn general where such is suggest qualifica- son would that similar throughout society ly established relating (particularly tions and exclusions family importance the historic values assault) should to child abuse or child component relationships. unit and its Con parent-child privi- apply doubtless to the non- fidential communications between lege, family privacy interest because yet, how spousal family have not members in both protected intended to be the same ever, been afforded the status a testimo situations. Port, privilege. parte Ex nial S.W.2d privilege prevents Because marital (Tex.Crim.1984); see, People v. frequently probative access to relevant and 712, 716, Fitzgerald, 101 Misc.2d 422 N.Y. evidence, privilege the exercise of that (1979); M, 61 S.2d In re A and carefully subjected to close restricted and A.D.2d N.Y.S.2d attaches, scrutiny. privilege No for exam- (1978). ple, it is found that there lack where was contrast, In confidential communications confidentiality at the time disclosure was marriage spouses, during between their not, made, by its privilege does and the afterwards, generally been terms, encompass by a very statements privileged. deemed neither presence of married party third objection of spouse testify over the circumscribed, much couple. However as the other to confidential communications indelibly privilege marital established State, them. v. Tex.Cr.R. between Bell jurisprudence our national because may re- 224 S.W. 1108 Either harmony to the cohesiveness and necessary testify fuse to about confidential communi- nothing family. At less stake cations made the other. Johnson family right to maintain than 95 Tex.Cr.R. 255 S.W. 416 importance inviolability. The integrity and privilege may But the be waived. of the familial —both acquiesces in party A who the admission society— and to individuals involved concerning communica- testimony these attachments that from the emotional stems them, privilege his to exclude tions waives intimacy daily associa- derive from Johnson, privilege 255 S.W. at in tion, plays ‘pro- the role it and from acquired to in- apply not information does way through the instruc- moting) a of life’ spouse dependently, ‍‌‌​‌‌​​‌‌​‌‌​‌​‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​​‌​‌‌​‌‌‌‌‌​‌‍rather than from the Yoder, v. tion of children. See Wisconsin of the marital relation. Gib- or as a result 205, 231-33, 92 S.Ct. 1541- (Tex.Crim. State, 516 S.W.2d 406 son v. 15 32 L.Ed.2d 476 App.1974); Stallings S.W.2d may say that the State This is to And it is well (Tex.Crim.App.1972). 679 authority regulate mat- to never intrude in specified Texas Rules established—and relationships, touching upon familial ters 504(d)(1) priv- is no there of Evidence —that privacy inter- family made, that certain even ilege if the communication was scrutiny commit, careful plan require particularly ests anyone to aid to partially, of the justify State needs asserted to their past the individual to both the abridgement. “protects The future. Constitution sanctity family precisely becаuse fostering Given that the of a confidential family the institution of deeply is root- parent-child relationship necessary to ed in history this Nation’s and tradition. It child’s development positive system of a through family that we inculcate and values, good and results in an to ultimate

pass many down of our most cherished society whole, aas what effect on that values, Moore, moral and cultural.” relationship would occur if the State could 503-04, 1937-38; U.S. at 97 S.Ct. at see induce or allow children—as in the instant Redhail, compel parents case—or their to also Zablocki v. disclose given in information to them a confidential L.Ed.2d 618 setting? peace The security and fami- a Having sought to establish that the in- ly jeopardized by damag- are as much tegrity family relational interests is ing testimony year daughter anof old clearly protection, entitled to constitutional by spouse. a defendant as that of the The I turn now to an examination of the nature spectacle recent in the aforementioned asserted in the interest case before attempting Port case the State to force us. a mother and to father reveal their child’s in parents developing misdeeds, role of the a in provide order to for a evidence character, prosecution, child’s stability, capital shocking emotional murder to my decency, sense self-image universаlly recognized propriety, in our and fair- parents divulge ness. If the to refuse their society. of this Erosion influence would (or versa), children’s confidences vice profound a effect on the individual by i.e., the parents, alternatives faced society child and on our It as whole. prosecution contempt risk of or for parent-child relationship essential seriously perjury, public could undermine lines communication between respect system our and confidence in and, open them remain especially, that justice. practice Should such be allowed encouraged child be to “talk out” his or her encouraged and then abused problems. State, a mоnumental violation of individual emerge upon Certain similarities exami- rights, impact as as well a destructive on parent-child nation of the relationship and in family society, unit could It result. relationship. Ideally, husband-wife way is inconsistent with the of life we parent-child encompasses cherish, specter and raises the of a totali- many aspects relationship— the marital regime, tarian as created Adolf Hitler love, affection, trust, mutual and intima- imagined George Orwell, sys- where cy parent providing the emotion- —with government programs attempt tematic to guidance relying upon al the child “persuade” young children to inform parent support. pa- help Because parents. their We want no “Hitler impor- probably rental influence is the most Jugend” in the nor we United do development, society tant factor a child’s police want a manner behave fostering has a vital interest affec- brings disrepute. which the law into therapeutic relationship tionate and be- case, resulting either institutional dam- parent tween and child. As in the marital age socially to the State as undesir- relationship, optimal parent-child relations able as the crime the combat. The great cannot exist deal of com- without placed position courts should not be two, characterized munication between say parents, your child “Listen аt highly personal informa- a free flow being compelled testify risk about his parent. tion from This confidences,” child relation- require nor should the courts ship, spousal, during unlike lasts the the loyalty a child to choose between to his ongo- parties, parents of to loyalty entire lifetime the and and the State. This generation generation, linking necessarily to ac- ing require from would the State to right to punish yet parent or child the tively loyalty denying which a selflessness and privilege protect to communi are into their fami- claim such a inculcated children family lies, churches, within an indissoluble cations made their and even the State blood, affection, loyalty, unit, itself, bonded only whеre values are and such tradition, teaching.5 perhaps religious and pur- deemed consistent with the State’s supporting privilege If the poses. the rationale suggest Such considerations would testify to ad witness/spouse a to refuse parent-child privilege logically that the against spouse in a crimi versely his or her only based not on the confidential nature right a supporting the proceeding, nal or specific parent communications between testimo defendant/spouse to exclude such child, upon the privacy and but also which serves to ny present spouse, or former of a constitutionally protectable is a interest of harmony the prevеnt the invasion family'in society. the American See In re itself,6 marriage relationship privacy of the (D.Nev.1983).3 F.Supp. Agosto, 553 the affording protection to then the same conclude, then, I that while the State has relationship more com parent-child is even important legitimate goal an in ascer- pelling. of the The “traditional relation taining rel- presenting “the truth”4 and family” is old and as funda “a relation as in each evant evidence before court mental as entire Gris our civilization.” proceeding, goal supercede this does not wold, at 1688. 381 U.S. at judiciary’s jus- primary commitment to traditionally has jurisprudence American commitment, Pursuing tice. it is our system’s judged integrity judicial of thе paramount task to the vital accommodate rights and basic protection of individual security stability social need for price of a few to be worth the social values against rights the individu- essential judi- slipping through guilty defendants Thus, I do not believe that the al. State’s suggesting system. cial In State outweighs interest in full an in- disclosure prosecute to defendants required should be right privacy in communica- dividual’s allowing through other means than family’s family, tions within the nor the testify family members to their compelling integrity inviolability. interest in its them, will against hope I that this tradition integrity inviolability spring This from perhaps even enhanced. be continued—and rights privacy family inherent relationship dissent, hold respectfully itself. No rеasonable basis ex- I and would extending privilege suppress ists should testimonial that the motion parent-child spouses for confidential communications to been sustained because of right enjoy legal contract, privilege on the constitutional who dissoluble while See, commentary example, Talmudic parent-child cease at 5. 3. does not midnight day the stroke of on last Sanhedrin 27b: year. parent-child privilege child's 17th If the fa- implication of the text "The What right privacy flows the constitutional from put for the sins not be to death thers shall relationship, the State is inherent implies the fathers shall If it the children?" age forbidden create an barrier limit that fathers, iniquity put to death for be right minority child to certain 24, 16): (Deut. already has been stated that "every age persons within an artificial bracket. The put death for his own shall be man marital, parent-child relationship, unlike the implies the fathers But the text sin.” dissolution, voluntary subject to not ongoing throughout testimony put to death on the shall not partici- lives of both testimony children and the children on pants. of their fathers. illuminating recurring It is 4. reflect on Trammel v. United phenomenon pursuit "the that in the truth” to (1980), the subordinated, which all other social values were privilege Court decided religious authorities have com- both secular testimony spousal remains adverse atrocities in hu- mitted some of bloodiest law, the court рrinciple of federal viable history, Spanish Inquisition man of which solely by vesting privilege modified the perhaps are the most and the Salem witch trials testifying spouse. in the memorable. of privacy, the Fourth Amendment to the Constitution,

United States and articles 18.-

01(b)7 and 88.238 the Texas Code of

Criminal Procedure. CORPORATION,

BEECH AIRCRAFT al., Appellants,

et Wiley III, JINKINS, Appellee.

Dr. J.

No. 01-85-0183-CV. Texas, of Appeals

Court (1st Dist.).

Houston

Sept. 1985.

Rehearing Denied Oct. 1985. 18.01(b) provides part: provides part: Art. 7. Art. relevant relevant 38.23 any purpose No search warrant shall issue for No obtained an officer or other evidence in this state unless sufficient facts are first person any provisions in violation of the presented satisfy issuing magistrate Constitution laws State probable cause is- does fact exist for its Constitution laws of United setting A sub- suance. sworn affidavit forth America, States shall admitted as evi- establishing probable stantial facts cause shall any dence the accused on the trial of every be filed in instance in which search criminal case. requested. warrant is

Case Details

Case Name: Diehl v. State

Court Name: Court of Appeals of Texas

Date Published: Sep 19, 1985

Citation: 698 S.W.2d 712

Docket Number: 01-84-0560-CR

Court Abbreviation: Tex. App.