Beth Davidson GILLETT, Appellant, v. The STATE of Texas, Appellee.
No. 57303.
Court of Criminal Appeals of Texas, En Banc.
Oct. 17, 1979.
588 S.W.2d 361
In the instant case, the evidence is undisputed that appellant‘s wife signed the consent to search form after she was told by Officer Hohman that there was reason to believe that marihuana was in her home. The offense report prepared by Deputy Hohman was introduced into evidence. The report recites in pertinent part:
“After Trooper Fort finished with Mrs. Gonzalez, I talked to her and asked her if she would sign a consent to search her property. She wanted to know why and I told her that we had reason to believe and did believe that there was marijuana on the property.”
The State offered no evidence that the marihuana would have been discovered by means independent of the initial search or the consent. Furthermore, the State has failed to demonstrate any attenuating circumstances between the initial illegal intrusion and the subsequent consent to search. We conclude that the consent was the result of the continuous exploitation of the initial unconstitutional search: Therefore, we hold that appellant‘s motion to suppress the evidence seized by officers from his residence and outbuildings should have been granted.
The judgment is reversed and the cause remanded.
Carol S. Vance, Dist. Atty., Robert A. Shults and Thomas L. Royce, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction was for the theft of a sweater of the value of over $20.00 and under the value of $200.00 as denounced by
Appellant contends that there was an illegal search by a security officer and evidence obtained as a result of the search should have been suppressed, and that the evidence is insufficient to show that she took the property without the consent of Foley‘s. We overrule these contentions and affirm.
Karen Boysen was a security officer for Foley‘s Department Store, but she was not a peace officer. While she was working at the Memorial City store near Spring Branch, she saw Beth Gillett pick up a red velour sweater, look about for a while and take it to a fitting room. The three fitting rooms or stalls had doors in the front and the partitions between them lacked at least one and one-half feet from reaching the floor. A sign was posted on the mirror which read: “Three garments per customer in the fitting room“, and “These fitting rooms are under surveillance by female security.” Another sign in the room read, “We prosecute shoplifting.”
After Gillett entered a fitting room, Boysen entered an adjoining room, got down on her hands and knees and looked into the stall occupied by Gillett and saw her try on the sweater, roll it up, place it in her purse and leave the fitting area. Gillett passed twelve cash register locations and through
Appellant contends that the observation by Boysen in the fitting room was an illegal search under
“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”
At the outset, there has been no violation of the
“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 or things to be seized.”
The exclusionary rule under the
“Lest any doubt the continuing vitality of Burdeau v. McDowell, the Supreme Court gave it a clean bill of health in 1971 in Coolidge v. New Hampshire [403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564]:
“‘Had Mrs. Coolidge, wholly on her own initiative, sought out her husband‘s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell.
“‘On this particular point, Justice Stewart spoke for a unanimous Supreme Court.‘”
The State contends that since neither the Federal nor State constitutional provisions, nor the Texas law, were violated,
It is not necessary to pass on that contention in this case because we hold that no right to privacy has been violated.
What people seek to preserve as private, even areas accessible to the public, may be constitutionally protected by the
In the present case, the posted sign on the mirror which would under nearly all circumstances be looked at by female occupants of a fitting room was notice that one could not expect privacy. This room was for use by the public on conditions established by the business. If appellant did not want to use the fitting room under the posted conditions, she was not compelled to do so. Her testimony that she did not see the sign did not have to be believed by the trial judge. The same is true about her testimony concluding that she expected privacy. See Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978).
In the cases relied upon by appellant where it has been held that a right to privacy exists are not controlling because in those cases the places were public and there was no notice that one would be watched while in a booth or stall.
Appellant also contends that the State did not prove that she took the sweater without the owner‘s consent. Irene Ott testified that she was “security” assistant manager at the store and that the sweater belonging to Foley‘s was taken out of appellant‘s purse. It had four tags on it which meant that it had not been paid for. She related that no one gave appellant permission to take it and she did so without the effective consent of Foley‘s. The evidence is sufficient to show lack of effective consent of Foley‘s as alleged in the information.
No error is shown. The judgment is affirmed.
ROBERTS, Judge, dissenting.
This appeal presents a question that this Court never has addressed directly: Are the fruits of an unreasonable search made by a private person inadmissible under
I.
A. Was there a search?
When a person has gone into an enclosed booth to disrobe, and an investigator gets down on her hands and knees and peers under the wall to watch the person surreptitiously, there has been a search (in the plain meaning of that word) unless the person‘s normally justified expectation of privacy in such a place was abrogated. The majority opinion is too abrupt in finding such an abrogation in this case.
The majority opinion summarizes its holding by saying, “In short, Foley‘s did not have to furnish [the appellant] a place so that she could commit theft in private.” This may have the virtue of wit, but it has nothing to do with the applicable law. One might as well say that Sears did not have to furnish an appellant with a place to commit sodomy in private; of course, a restroom having been furnished, the law is that the appellant had a reasonable expectation of privacy in it. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971) (opinion by Douglas, J.), cert. denied, 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804 (1972). The same law would compel the conclusion that when a person has gone into a fitting room in a department store and closed the door, he has a reasonable expectation of privacy, and it is an unreasonable search for concealed guards to observe him by looking over or under walls or through cracks. People v. Randazzo, 220 Cal.App.2d 768, 34 Cal.Rptr. 65, 66 (1963); United States v. Lima, 25 Crim.L. 2095 (D.C.Super.1979); People v. Diaz, 85 Misc.2d 41, 376 N.Y.S.2d 849 (Crim. Ct.N.Y.1975); State v. McDaniel, 44 Ohio App.2d 163, 337 N.E.2d 173 (1975); W. LaFave, 1 Search & Seizure, Section 2.4(c) (1978). The majority opinion holds that this law does not apply for two reasons.
First, says the majority opinion, “[I]n those cases the places were public.” This is puzzling. One would think that this purported distinction would undercut, not support, the majority‘s position; “in those cases [where] the places were public” the expectation of privacy logically must be less than in those cases where the places are private. But I shall not linger over this curiosity. It seems plain to me that there is no difference in the public natures of a dressing room in Foley‘s and a toilet stall in Sears.
Second, the majority notes that in the cited cases, “there was no notice that one would be watched while in a booth or stall.” While this is the determinative factor, it is
One step in the majority‘s analysis is the axiom that the trial court could have disbelieved the appellant when she said that she did not see the sign and that she expected privacy.1 This is true, but irrelevant. The dispositive question is not whether a person has a subjective expectation of privacy, but whether a person has an objectively justified right to privacy. It is an unreasonable transgression on the objective right that constitutes an unreasonable search. If the test were a subjective one, a searcher like Orwell‘s Big Brother could rather easily eliminate our subjective expectations of privacy simply by announcing his intention to search us. His searches would be unreasonable, nonetheless, because they would have violated our objectively justified right to privacy. (Conversely, an unjustified expectation of privacy, no matter how fervently it is subjectively held, can not render a search unreasonable.) See W. LaFave, 1 Search & Seizure, Section 2.1 (1978); Amsterdam, “Perspectives on the Fourth Amendment,” 50 Minnesota Law Review 349, 384 (1974). This Court has applied this objective test correctly to a Fourth Amendment question in Green v. State, 566 S.W.2d 578, 583 (Tex.Cr.App.1978) (opinion by Douglas, J.). That case certainly did not present the incorrect analysis for which it is cited in the majority opinion.
The proper question is whether the sign makes a person‘s expectation of privacy objectively unjustified. The only thing that the majority opinion has to say about the sign is that “the posted sign on the mirror ... would under nearly all circumstances be looked at by female occupants of a fitting room ... .” (I suppose that this is an implied holding that the judgment would be reversed if the occupant had been male and, hence, less apt to look at mirrors.) The quaint remark in the majority opinion is not a sufficient analysis of the problem of the sign.
First, the sign is poorly designed to give notice that there may be an intrusion on the occupant‘s privacy. It is small: about six by twelve inches. It is poorly worded: “Three garments per customer in the fitting room and these fitting rooms are under surveillance by female security.”2 The notice that the “rooms are under surveillance by female security” is not prominently displayed, but is appended to another notice. The sign is not placed outside the room so that it might be read before the customer begins undressing, but is fixed to a mirror inside the room so that the customer might not notice it until she had undressed (if she noticed it at all).3
Second, and more importantly, it appears that people expect privacy in the fitting room even though they are fully aware of the sign. The security investigator, who had been trained in this method of surveillance and who used it in this case, testified nonetheless that when she went into a fitting room to try on clothes she expected privacy and she did not anticipate that anyone would be watching her. I think that the investigator‘s expectation of privacy was justified, as was the appellant‘s. Accordingly, I would hold that there was a search when the security guard got down on her hands and knees to peer under the wall into the closed fitting room where the appellant was disrobing.
B. Was the search consented to?
The only other fact mentioned in the majority‘s analysis is the observation that
Some courts have raised the question of consent in analyzing searches of airplane passengers and jail visitors who were confronted with signs similar to the one in this case.
“Even though it ... [is] somewhat easier to fit cases of the type just described within the consent category, it is neither necessary nor desirable to do so. Consent in any meaningful sense cannot be said to exist merely because a person (a) knows that an official intrusion into his privacy is contemplated if he does a certain thing, and then (b) proceeds to do that thing. Were it otherwise, the police could utilize the implied consent theory to subject everyone on the streets after 11 p. m. to a search merely by making public announcements in the press, radio and television that such searches would be undertaken. And there are other problems. ... These difficulties can be avoided by simply asking whether these inspection activities meet the reasonableness requirement of the Fourth Amendment, an inquiry in which it will nonetheless be relevant that advance notice was given of the circumstances in which a search may occur.” W. LaFave, 2 Search & Seizure, Section 8.2(l) (1978) (footnotes omitted).
As long as the majority opinion is tacitly admitting that there was a search in this case, it should analyze the search in terms of reasonableness rather than consent.
C. Was the search reasonable?
“Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). Unquestionably, Foley‘s has a need to prevent theft. This need must be distinguished from the activity of gathering evidence of crime for the purpose of prosecution. See, e. g., United States v. Davis, 482 F.2d 893, 910-912 (9th Cir. 1973). To be reasonable, a search should be no more intrusive than is necessary to achieve its legitimate purpose. W. LaFave, 3 Search & Seizure, Section 10.7 (1978). In this case, Foley‘s could have satisfied its need to prevent theft had the investigator simply waited outside the fitting room to see that the appellant emerged with the sweater that she took in, and to see that the sweater was replaced on the rack. Instead, the investigator chose to gather evidence by engaging in a very intrusive search.4 Searches that are personal in nature and aimed at discovering evidence of crime involve a higher degree of invasion of privacy than mere inspection activities. See Camara v. Municipal Court, 387 U.S. 523, 537, 87 S.Ct. 1727, 1727, 18 L.Ed.2d 930 (1967).
Assessing intrusions that were virtually identical to those presented by the instant case, courts have concluded that the searches were unreasonable. People v. Randazzo, 220 Cal.App.2d 768, 34 Cal.Rptr. 65, 66 (1963); State v. McDaniel, 44 Ohio App.2d 163, 337 N.E.2d 173 (1975).
Notice in advance that a search might occur is a factor to be considered in determining the reasonableness of a search like the instant one.5 This factor is rather a weak one in this case. There was no proof that the appellant actually had notice that she would be searched if she went into the fitting room, and the sign was not suffi-
In summary, the need to search was clear but not overwhelming, the invasion of privacy was great, the search was more intrusive than the legitimate purpose justified, and the advance notice was unsatisfactory. On balance, I would hold that the search was unreasonable.
I recognize that judges could disagree in evaluating the facts of this case, but the approach to the analysis of the case should be mandated by the legal principles that I have discussed. The unfortunate feature of this case is that the holding of the majority opinion would apply equally well if this search had been made by a police officer. If it is applied to Professor LaFave‘s hypothetical, in which the police search everyone found on the street after 11 p. m. after announcing their intention to do so, the only logical result will be to hold that there was no search because there was no subjective expectation of privacy. Under the majority opinion, any Orwellian invasion of privacy could be held not to be a search, so long as a small, cryptic sign has been posted in advance. I have every hope that, when faced with such cases, the Court will return to a proper analysis; I wish that it had done so today.
II.
As a matter of federal law, the
Of course, states are free to establish laws that afford greater protections than the minimum requirements of the federal constitution. See Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977); Olson v. State, 484 S.W.2d 756, 762 (Tex.Cr.App.1972); Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harvard Law Review 489 (1977). Texas has exercised this freedom more than once in its constitutions and laws.9
Therefore, in our determination of the admissibility of evidence acquired by private persons, we are not limited by Fourth Amendment doctrines if state law establishes stricter standards. At a time when some judges are displaying hostility to the constitutional exclusionary rule (if not to the Fourth Amendment itself),10 it is important to remember that the legislative represent-
In its first paragraph,
Formal sources of the legislative history of Texas statutes have been nearly non-existent until recent years. See M. Boner, A Reference Guide to Texas Law and Legal History, chapter 4 (1976). The legal and historical context of this statute and its predecessors is tolerably clear, and a review of it is helpful.
The statute was born in the prohibition era. Although statewide prohibition did not come to Texas until 1919, prohibition on the “local option” of counties, precincts, towns, and cities had been allowed since 1876. See
It was such a case, in which private “gentlemen” joined with officers on a search for whisky, that gave rise to
The first of these statutes provided:
“Sec. 1. * * * No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
“Sec. 2. The fact that there has been used against citizens of this State evidence obtained in violation of the constitution of the State, and that there is now no statute expressly forbidding the same, creates an emergency ... .” 1925 Texas General Laws, Chapter 49 (emphasis supplied).
Section 1 is substantially identical to the first paragraph of the present
The other statute began by reciting
These statutes evince the intent of the Legislature to make the prohibition of unreasonable searches and seizures applicable to all persons, whether officers or not.
The 41st Legislature repealed the act that made it a crime to conduct a warrantless search, because it was “retarding and hindering the enforcement of the Criminal laws ... and ... hampering
When it was held that this amendment made admissible wiretap evidence obtained in violation of the Federal Communications Act,16 the 52nd Legislature promptly reacted.17 It reinstituted the ban against evidence obtained in violation of federal laws, which restored the substance of the original statute. This 1953 version provided:
“Sec. 1. No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the United States or of this State shall be admitted in evidence against the accused on the trial of any criminal case.
“Sec. 2. The fact that the present law authorizes evidence obtained in violation of the laws of the United States to be used in evidence against an accused upon trial for a violation of the laws of this State, creates an emergency ... .” 1953 Texas General Laws, Chapter 253.
Once again, the language that excluded evidence obtained unlawfully “by an officer or other person” was retained.
The language was retained again when the current Code of Criminal Procedure was adopted in 1965 after a comprehensive reco-
dification.18 Only grammatical changes were made, and a second paragraph was added.19
It is significant that the application of the statute to “other persons” did not change when the statute was amended (and a companion act repealed) in 1929, nor when the statute was amended in 1953, nor when the statute was amended in 1965. Not merely once, but four times, has the Legislature chosen to exclude evidence that would otherwise be admissible under doctrines of the federal constitution.20 Not merely once, but four times, has the Legislature expressly made this statute applicable to the acts of officers and other persons alike, if their acts are in violation of our constitutions or laws.
The question of the applicability of this statute to the acts of private persons has not been discussed by this Court, although there is an illuminating contrast between the opinions in Gaines v. State, 95 Tex.Cr.R. 368, 251 S.W. 245 (1922), and Ramirez v. State, 123 Tex. Crim. 254, 58 S.W.2d 829 (1933). In the former case (decided before the enactment of the statute in question), we wrote, of the fruits of an illegal search and seizure, “[I]t would seem that the information obtained by the post office inspector, he not being a state officer, would not preclude the use of the facts acquired by him by the state authorities in trying the case.” 95 Tex. Crim. at 374, 251 S.W. at 248. In the latter case, two United States Immigration Service inspectors made an illegal search and seizure. Although they, like the post office inspector, were not officers under our laws, we did not hesitate to apply the statute in question (which was enacted in the interim between the cases).
The Constitution and laws of the State of Texas provide that, “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches ... .”21 The State argues that an unreasonable search or seizure by a private person is not in violation of these provisions because they apply only to officers, as does the Fourth Amendment. The State thus would have us hold that
In this case, the security investigator testified that her duty was to protect the assets of Foley‘s in any way that she could. However that may be, the Legislature has imposed on the courts of this State a different duty: to exclude evidence obtained through unreasonable searches or seizures by officers or other persons. It was error for the trial court to deny the motion to suppress the evidence. Therefore, I dissent.
PHILLIPS and CLINTON, JJ., join in this dissent.