Lead Opinion
OPINION ON DISCRETIONARY REVIEW WITHOUT PETITION
The question presented is whether blood coursing through a human body is an
“A search warrant may be issued to search for and seize:
(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense ...”1
The Court of Appeals concluded “that blood is an ‘item’ within the ordinary meaning of the word,” but a concurring opinion disagreed “that ‘blood’ is an ‘item’ within the meaning” of the statute. Gentry v. State,
We start with the facts related to the only issue before us. As pointed out in the opinion below, a forensic analysis of seminal fluid taken from a bedsheet on which one of the rapes of complainant occurred showed the fluid came from a person' Who is a nonsecretor, and testimony was that 18% of the male population in Dallas are nonsecre-tors. An affidavit for search warrant stated, inter alia:
“8. I believe that the blood grouping type ... of the defendant would constitute probative evidence that the defendant committed the foregoing offense. In other words, if such testing of the defendant would show that he were of the non-secretor type, such evidence would constitute probative evidence that the defendant committed the foregoing offense.”
The trial judge, sitting as a magistrate, issued a search warrant based on the affidavit, ordering “that a blood sample ... be obtained from the body of the said Defendant ... in accordance with accepted medical practices,” and commanding a peace officer
“to search for the property and items described in the attached Affidavit and to seize the same...”
The return reports that the warrant was executed “by making the search directed therein and seizing during such search the following described property, namely, blood . .. from the body of the defendant...”
Article I, § 9 of our Bill of Rights guarantees security of the people “in their persons, houses, papers and possessions” against unreasonable seizures and searches, and it mandates that “no warrant ... to seize any person or thing shall issue without
The same act that amended Article 18.02 also added subsections (c) and (d) to Article 18.01. For a subdivision (10) warrant there is a requirement in (e) that the affidavit set forth sufficient facts to establish probable cause “(3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.” Subsection (d) limits seizure through execution of a search warrant to “the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 ... or property or items enumerated in Subdivisions (1) through (9) of Article 18.02 ...,” and further forbids a second search warrant pursuant to subdivision (10) directed to “the same person, place or thing subjected to a prior search under Subdivision (10) ...”
Two contemporaneous decisions of the Court addressed this matter in 1977, but are chronologically unrelated to the legislative amendment effective May 25, 1977: Escamilla v. State,
Before being amended by enactment of Senate Bill 156 Article 18.01(a) defined a
The effect of amendments to Articles 18.-01 and 18.02 is to authorize issuance of a search warrant to search for and seize “mere evidence” that Gouled v. United States,
“But if its rejection does enlarge the area of permissible searches, the intrusions, are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of ‘a neutral and detached magistrate...’ Johnson v. United States,333 U.S. 10 , 14 [68 S.Ct. 367 ,92 L.Ed. 436 ]. The Fourth Amendment allows intrusions upon privacy under these circumstances, and there is no viable reason to distinguish intrusions to secure ‘mere evidence’ from intrusions to secure fruits, instrumentalities, or contraband.” Id., at 309-310,87 S.Ct. at 1651 .
Soon opinions began to speak in similar terms of “items” and “items of evidence.” See, e.g., Chambers v. State, 508 S.W.2d 348, 351-353 (Tex.Cr.App.1974). Indeed, it was because “blood is not one of the items for which a search warrant may issue under Art.- 18.02,” as then drawn, Escamilla v. State, supra, at 799, that the Court soon held in Smith v. State, supra, “a search warrant may not be issued to search for this type of evidence,” id., at 302. In holding that upon probable cause it is constitutionally permissible to extract a sample of blood from a human body, the Supreme Court had discussed such a seizure and search in relation to obtaining desired evidence. Schmerber, supra, at 766-772. In that context “item” has practically acquired a technical meaning, and to become a word of art.
We are thus constrained to hold that, though “blood” is not specifically itemized in Article 18.02, it is nonetheless an item of evidence to search for and to seize which a search warrant may issue in accordance
The judgment of the Court of Appeals is affirmed.
Notes
. That paragraph, it will become significant to note, was added by Acts ■ 1977, 65th Leg., p. 640, ch, 237, § 2, effective May 25, 1977, the day the Governor signed Senate Bill 156. (All emphasis is added by the writer of this opinion unless otherwise indicated.)
. Not only is the question one .of first impression in this State, but the majority of the court below was unable to find “any other state or federal statute that requires construction of the term ‘item’ to define the permissible scope of a search.” Butler, supra, at 80, n. 2. Accordingly, seeking all aid proffered we granted the Criminal District Attorney leave to file a brief for the State. Alas, appellate counsel for appellant, who did not try the case and appears to have been appointed, since appellant was found indigent for purposes of obtaining an appellate record, has not favored us with any advocacy in behalf of appellant on our discretionary review. See, however, Ayala v. State,
. See Acts 1981, 67th Leg., p. 2790, ch. 755, § 5, effective September 1, 1981.
. There is a misleading statement on this score in Bell v. State,
. “[C]ompulsory administration of a blood test ... plainly involves a broadly conceived reach of a search and seizure under the Fourth Amendment... It could not reasonably be argued ... that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons’ within the meaning of that Amendment.” See also Aliff v. State,
. Because the parties strongly dispute what the terms truly mean, we have examined the file on Senate Bill 156 officially kept by the Legislative Reference Library and have perused both the original bill introduced by Senator Bill Meier and the committee substitute that was finally enacted, as well as other related materials. The principal contribution made by the committee was inclusion of subsection (d) and its insistence that only material specified “may be seized.” Compare Oubre v. State,
A Bill Analysis accompanying the report of the House Committee on Criminal Jurisprudence notes that under then existing state law, “OQtems constituting evidence of an offense are not permissible subjects of a search warrant,” and opines that in adding the language of subsections (c) and (d) and paragraph (10) the bill amends the designated sections “by expanding
In sum, such legislative history that is available to us fails to suggest any intent that blood was considered to be either “property of items” within the meaning of the statutes.
. Though common in use, “item” has varied connotations. See Black’s Law Dictionary (Revised Fourth Edition) 966-967; 22A Words and Phrases 655 and 1982 Cumulative Pocket Part 113; 48 C.j.S. 787; and any standard dictionary. In Brugioni v. Maryland Casualty Co.,
. Accordingly, we need not address the alternative question of whether blood is “property” within the meaning of the statute. Nor does the fact that in 1981 the Legislature added “(11) persons” to the list of Article 18.02 bear on the answer to the first question posed at the outset of this opinion.
Dissenting Opinion
dissenting.
I. Why This Cause Is Before This Court
A judge of this Court, acting pursuant to Tex.Cr.R. 210(a)(2), 302(e), and 303(b), filed an order for review of the record on appeal in this cause. Thereafter, this Court, acting En Banc and pursuant to Art. 44.45(a), V.A. C.C.P., and Tex.Cr.R. 303, entered an “Order Granting Review Without a Petition,” to decide “the important question of whether evidence relating to appellant’s blood was obtained and introduced at trial in violation of the provisions of Art. 18.02, V.A.C. C.P.” Presumably, the question stated also implicated a review by this Court of the correctness of the decision of the Court of Appeals. See Gentry v. State,
II. Why The Issue Was Not Properly Preserved In The Trial Court And Therefore Was Not Properly Before the Court of Appeals For Appellate Review, And In Turn Is Not Properly Before This Court For Appellate Review Purposes
A. Introductory Comment
Based upon the opinion of the Court of Appeals, I naturally assumed, as I am sure other members of the Court did, that for appellate review purposes the issue of forcibly taking such a thing as blood from a live human being’s body had been properly preserved in the trial court. I now find that my assumption was erroneous; the decision of the Court of Appeals was predicated upon an imperfect trial record. Consequently, this Court should not have on its own motion granted a review of this cause.
B. Pre-Trial Proceedings And The Issuance Of The Search Warrant
On June 18, 1979, the appellant was indicted for committing the offense of burglary of a habitation with the intent to commit the offenses of theft and rape. Appellant pleaded “Not Guilty” to the charge. A prior felony conviction for committing the felony offense of burglary of a vehicle was also alleged in the indictment for enhancement of punishment purposes. The appellant pleaded “true” to that allegation of the indictment. After a trial to a jury on the issue of guilt, which trial commenced on August 1, 1979, the jury found appellant guilty and subsequently assessed his punishment at life imprisonment.
On July 27, 1979, the trial court conducted a hearing on pretrial motions the appellant’s trial attorney had previously filed.
However, the record on appeal does not reflect that at any time on August 1, 1979, any motion to suppress, either oral or written, was ever made, presented, or filed by either the appellant or his trial counsel. On August 1, 1979, at 10:00 O’clock A.M., apparently shortly prior to the commencement of the voir dire examination by the parties of the jury panel, which jury panel presumably had been empaneled for this cause, an investigator with the Dallas County District Attorney’s office presented a prepared affidavit for a search warrant and a prepared search warrant to the presiding trial court judge, who thereafter acted, by the record, in both the capacity of a magistrate, see Art. 2.09, V.A.C.C.P., and “Judge presiding”.
The search warrant states, inter alia, the following:
On this the 1st day of August, 1979, the attached ‘Affidavit’ was presented to this Court. Such Affidavit is, by this reference, incorporated herein for all purposes. A hearing was conducted on this date with the Defendant, Michael Ray Gentry, and his counsel being present. The purpose of such hearing was to determine whether probable cause existed for the issuance of this search warrant. At such hearing the attached Affidavit was introduced into evidence for this Court’s consideration. (Emphasis Added).
IT IS THE FINDING of this Court that the verified facts, as set out in the attached affidavit, establish probable cause for the issuance of this search warrant. Such verified facts are hereby adopted as the Court’s findings.
As to why the investigator wanted to obtain “a blood sample from the body of the defendant,” the affidavit for the search warrant reflects, among other things, the following.
6.... I have personally talked with Ms. Benita Harwood (an employee at [the Dallas County Forensic Laboratory]) who told me that seminal fluid was detected on such bed sheets. [The affidavit states that bed sheets were removed from the residence of the complainant.] She [Har-wood] further told me that she conducted additional tests on such fluid and determined that it was of the non-secretor type.
7. At the present time, I do not have any information regarding the blood group typing or secretor type of the defendant. I have been unable to obtain such information from any other source.
8. I believe that the blood grouping type and secretor type of the defendant would constitute probative evidence that the defendant committed the foregoing offense. In other words, if such testing of the defendant would show that he were of the non-secretor type, such evidence would constitute probative evidence that the defendant committed the foregoing offense. [Emphasis Added].
The judge who approved the search warrant signed it as follows:
Kirbv Vance f Judge presiding!
Magistrate, Dallas County, Texas,
and ordered that it issue. The investigator shortly thereafter, with the assistance of Harwood, executed the search warrant at some location in the courtroom.
I find that the record on appeal, concerning the presentation of the affidavit for the search warrant and the search warrant to the trial judge by the investigator, is almost as bare as “Mother Hubbard’s cupboard.”
My reading of the transcription of the court reporter’s notes of the trial proceedings has yet to reveal therein any express reference to the affidavit, the search warrant, or the return by the appellant or his trial counsel. Unless I am mistaken, and I
MR. SHAVERS [Defense Counsel]: Your Honor, at this time I will object to any evidence introduced as a result of that test as being in violation — as being a result of an illegal search and seizure and I ask that the Court exclude such evidence.
THE COURT: Overruled
MR. SHAVERS: Please note our exception.
As easily seen, trial counsel for appellant, when he made his objection, never expressly mentioned anything about either the affidavit for the search warrant, the search warrant, or the return. Nor did he, also easily seen, specifically articulate his reasons for making his general objection that there was an illegal search and seizure. For example, in his objection he did not specify, as required by this Court’s many past decisions, whether the objection was based upon either the Federal or State Constitutions; or both; whether he was challenging the search and seizure on the basis that it was a warrantless search and seizure; whether he was claiming that it occurred as a result of nonconsent, etc. Thus, without complying with the rule regarding specificity in making an objection, another reason exists why there should not be any review of this cause by this Court. E.g., White v. State,
The record on appeal clearly and unequivocally reflects that neither the affidavit for the search warrant, the search warrant, nor the return was ever introduced into evidence prior to or during appellant’s trial. Nor did the appellant ever object, prior to or during the trial, to the form or substance of either the affidavit for the search warrant, the search warrant, or the return. See Gonzales v. State,
I, therefore, believe that this Court is establishing bad precedent by implicitly holding that appellant properly and sufficiently preserved the error, if any, in the trial court. I predict that, like the proverbial bad penny, this decision will in the very near future come back in principle to cause this Court to rue the day it implicitly held that the appellant properly preserved in the trial court the issue concerning the validity of the search warrant that issued in this cause.
Although I acknowledge that the above documents are included in the “transcript” portion of the record on appeal, nevertheless, they are not part of the official record of the appeal. Neither the record on appeal nor the official record of the appeal reflects just how the documents got into the record on appeal. They merely accompany the record on appeal. A document may be part of a record on appeal, by its very inclusion therein, but if such document has not been timely and properly offered and introduced into evidence during the course of the trial proceedings, or is in the record by way of a formal or informal bill of exception, or, though not offered and admitted into evidence, has been treated by the parties as though it had been admitted into evidence, see Humphreys v. State,
As to an affidavit for a search warrant, a search warrant, and the return, see Mullane v. State,
In reference to an arrest warrant, see Dusek v. State,
The above, concerning my discussion of why there was a failure of the appellant or his trial counsel to timely and properly put the above documents into the official record of the appeal, and to have timely and properly objected to them during the trial, if he desired to complain in his appeal about the documents, is buttressed by another rule of law, announced long ago by this Court. In Mattel v. State,
In Ortega v. State,
In Walsh v. State,
C. The Ground of Error On Appeal Is Not The Same As Raised In The Trial Court
There is yet another and further reason why the contention the appellant raised before the Court of Appeals, but has not personally raised in this Court, should not be reviewed by this Court. As reflected by this Court’s many past decisions, it is axiomatic in this State that any ground of error raised by an appellant in his brief on appeal must have been first raised in the trial court. See, for example, Bouchillon v. State,
“Your Honor, at this time I will object to any evidence introduced as a result of that test as being in violation — as being a result of an illegal search and seizure and I ask that the Court exclude such evidence.”
D. Summary
It is therefore fundamental law in this State that once a search warrant has issued, supported by an affidavit which recites facts sufficient to find probable cause, pfl-ma facie evidence of a lawful search and seizure is established. See Townsend v. State,
The burden was on the appellant in this cause to present as complete a record on appeal, of the pre-trial and trial proceedings, as possible in order for the appellate courts to adequately consider and dispose of the issues he desired to present on appeal; in this instance, his challenge to the search warrant which issued in this cause. Thus, trial counsel for appellant should have seen that the affidavit, the search warrant, and the return pertaining thereto were properly introduced into evidence either before or during the appellant’s trial. But, he did not. Furthermore, he had the legal responsibility to show that his trial objection to those documents was a legally sufficient objection. See Bradley v. State,
III. Harmless Error
In any event, if there was properly perfected trial error, it was harmless error beyond a reasonable doubt. Without detailing the horrible, brutal, savage, terrible, nauseating, revolting, abominable, despicable, and heinous acts which were committed by the appellant on the person of the female complainant, if there was ever error in the taking of the appellant’s blood, under the facts of this cause, I find such error was at best harmless error beyond all doubt. Chapman v. California,
IV. The Affidavit For The Search Warrant
A. The Fourth Amendment and Art. I, Section 9
I also find that the affidavit for the search warrant, as to the seizing of the body of the appellant and blood from his body, states only mere suspicion that appellant’s blood constituted evidence of the offense of burglary of the habitation of the complainant with the intent to commit theft or rape, or that the appellant’s blood would tend to show that he committed the offense of burglary of a habitation with the intent to commit theft or rape, either of which I find is a necessary condition which must be shown before a search warrant may issue under the statute. See Art. 18.-02(10), V.A.C.C.P. See also V.T.C.A., Penal Code, Sec. 30.02. The facts as set out in the affidavit for the search warrant, see supra, manifest nothing more than a mere possibility that the blood of appellant somehow satisfied either of the above conditions. An affidavit for a search warrant predicated upon the mere inarticulate hunch, suspicion or good faith of the officer is insufficient to constitute probable cause. Terry v. Ohio,
V. THE LEGISLATURE
Judge Clinton states in his majority opinion: “We find that the Legislature was not responding to [prior] decision[s] of the Court when it added ‘property or items’ to Article 18.02.” He may be correct. However, and as clearly shown by the transcriptions of the hearings held on the amendment to Art. 18.02, supra, before the Senate Criminal Jurisprudence Subcommittee and the Criminal Matters Subcommittee, as well as the hearings held before the Criminal Jurisprudence Committee of the House of Representatives, leaves me to conclude that the last thing in the minds of the members of the committees was to permit law enforcement officials to obtain a search warrant from a magistrate of this State in order to forcibly remove from the body of a live human being his or her blood. If anything, the transcriptions, which contain only a short passing comment by a former assistant district attorney to the contrary, implicitly reflect that at no time was it the intention of the members of the committees, or, for that matter, with the one noted exception, all of those persons who addressed the committees, to seek passage of a law that would authorize a court order for the drawing of blood from a live human being.
Prior to the Legislative amendment to Art. 18.02, by the addition of Sec. 10, this Court, in a series of cases, see Escamilla v. State,
1. The taking of blood from a live human being is a search and seizure within the meaning of Art. I, Sec. 9 of the Texas Constitution.
2. Because blood was not one of the items listed under Art. 18.02, a search warrant could not issue to seize blood from a live human being.
3.It is not unlawful for a live human being to possess blood.
Thus, in Texas, at least until today, there was only one possible way blood could legally be obtained from a live human being who was in the lawful custody of law enforcement officials, and that was by consent. It should be apparent to anyone, by the Legislature’s silence, when it amended Art. 18.02 and did not expressly and specifically authorize the seizure of blood from a live human being, that this silence can lead to only one conclusion: the amendment is nothing more than a mere expression of the intent of the Legislature that only concrete, tangible, and visible to the naked eye items or property could be lawfully seized by virtue of a search warrant. The Legislature’s lack of explicit expression on the subject of forcible injection of a foreign object into the body of a live human being in order to remove from the inside of the body such a thing as blood indicates to me that the members of the Legislature had no desire or intention to allow search warrants to be used for that purpose.
I believe that the amendment was meant to do nothing more than provide a means to fill a gap previously existing in our law, and to allow law enforcement officials to search for and seize such things as, for example, bank records, administrative type records, movie films, photographs, magazines, keys, credit cards, notes, buttons, clothing, driver’s licenses, “trick” books, smoking paraphernalia, envelopes, fingerprints, carpets, maps, and policy slips; provided that none of these items could be construed to be the personal writings by the defendant.
In closing, I unequivocally state that I cannot believe that those persons who wrote the Bills of Rights to the Federal and State Constitutions could have envisioned the day when a majority of this Honorable Court would sanction a forced invasion of the body of a live human being, as well as putting its stamp of approval on authoriz
This Court is free, within the limits of the applicable constitutional provisions of the Texas Constitution, to determine the permissible scope of searches and seizures of the kind before us. The integrity of a live human being and an individual person’s right of privacy is a cherished value of our society. This Court should hold that the Texas Constitution forbids the issuance of a search warrant to seize mere evidence below the body’s surface. ■
I. must, for all of the above stated reasons, respectfully dissent to the majority’s opinion.
. The Fourth Amendment to the Federal Constitution provides as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.”
Art. I, Sec. 9 of the Texas Constitution states: “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation." As anyone knowledgeable will concede, the above words are not only of ancient vintage, but are indeed powerful expressions by those persons who wrote the respective constitutions.