Hernandez v. State

Sowder, DA, Lubbock, C. William Ricky HERNANDEZ, Appellant, State. PRICE, J., delivered the

The STATE of Texas. Court, MEYERS, WOMACK, in which JOHNSON, HOLCOMB, J., join. J.

No. 861-00. COCHRAN, J., joins with a note. Court of Criminal of Texas. granted we review to deter appeals mine whether the court of erred 14, 2001. Nov. holding that the admission of evidence ob tained in violation of the Fourth Amend ment is non-constitutional error. The Su preme Court has concluded Fourth Amendment exclusion of evidence obtained violation thereof and applicable requirement has held Amendment. states the Fourteenth Ohio, Mapp v. (1961). Therefore,

1684, 6 L.Ed.2d 1081 proper hold that the we one of Rule this case is the constitutional . 44.2(a) Appellate Procedure posses- appellant was indicted for to deliver cocaine. The sion with intent Tex. Health jury appellant. convicted During pun- § Safety 481.112. & Code trial, appellant phase ishment of evidence objected to the admission stop. traffic during an unlawful appellant’s The trial court overruled the objection. appeal, appellant com

On direct erroneously court plained that the trial ap The court admitted the evidence. the evidence should peals held that stop that the traffic excluded because been seizure violated led to the evidence’s to the United States Hernandez Constitution. (Tex.App. 506-07 S.W.3d — Amarillo appeals concluded The court of Jr., Holder, Ham- that the error was non-constitutional Floyd Lynette D. 44.21 Lubbock, Appellate Procedure mond, under Rule of Appellant. (a) appellate If the Constitutional Error. 44.2 reads: 1. Rule reveals constitu- record in a criminal case

107 Powell, directly 465, 481-82, because it “did not offend the Stone v. 428 U.S. 96 Constitution, United States was not re (1976) 3037, (holding 49 L.Ed.2d 1067 itself, quired by the Constitution require that does Constitution therefore not a federal constitutional prisoners granted state federal habeas 44.2(a).” purposes error for Id. at 508. ground relief on the that evidence obtained granted We review to decide in violation Amendment was analysis apply should to the erroneous ad trial); admitted at United States v. Calan- mission evidence obtained in dra, 338, 349, 613, 414 U.S. 94 S.Ct. 38 the Fourth Amendment. (1974) L.Ed.2d 561 (declining to extend the Bumper Carolina, v. North 391 U.S. rule to 543, 1788, (1968), 88 S.Ct. 20 L.Ed.2d 797 grand jury proceedings). The Amarillo guides us to the conclusion that the consti- Court relied on these cases for tutional standard apply. must that its conclusion that the error this case case, the Supreme Court found that must be non-constitutional. But the cases petitioner’s Fourth Amendment rights explicitly implicitly neither nor overrule were violated in the state criminal trial. the Court’s unanimous conclusion in 550, Id. at 88 S.Ct. Having found a Bumper Chapman that ap- standard violation, and after conducting a harmless plies to a trial court’s erroneous failure to Chapman under v. Califor- exclude evidence violation of nia, 18, 824, 386 U.S. 87 S.Ct. the Fourth Amendment. (1967), the Court concluded that error was not beyond harmless a reason- Moreover, Supreme recently Court able doubt. Bumper, at reversed a Fourth Circuit decision S.Ct. 1788. Justices Black and White dis- appeals which that court upheld a feder- sented to majority’s conclusion that the purporting al law to overrule Miranda v. illegal, search was agreed but both Arizona, 384 U.S. 86 S.Ct. proper harm analysis would be the L.Ed.2d 694 Dickerson v. United in Chapman. standard Id. States, 530 U.S. 120 S.Ct. 560, 562, (Black, J., 88 S.Ct. 1788 dis- Supreme The Court (White, senting) J., dissenting). noted the appeals court of relied on “the Supreme Since the application Court’s fact that excep- we have created several the constitutional error standard of harm tions to warnings requirement Miranda’s in Bumper, the Court has held in certain and that repeatedly we have referred to contexts that the Fourth Amendment ex- warnings ‘prophylactic’ Miranda clusionary rule apply pro- in all rights protected by ‘not themselves See, ceedings persons. all e.g., Constitution.’” Id. at Pennsylvania Bd. Pa- Probation and (citations omitted). Scott, role v. (1998) appeals reversed court of (declining to though language

extend the Fourth conceded “there is Amendment exclusion- ary parole rule tó revocation proceedings); opinions some of our supports (b) defect, subject error, tional error that is Any harmless error Other Errors. other review, appeals the court of must reverse a irregularity, or variance that does not affect

judgment punishment of conviction or un- disregarded. substantial must be less the court determines a reason- able doubt that the error did not contribute punishment. conviction or KELLER, P.J., dissenting view court. Id. at filed a taken opinion, in which KEASLER S.Ct. 1602. HERVEY, J.J., join. Court resolved the COCHRAN, J., joins majority part, possess the basis that it on the following and adds note: authority supervise

the to state courts. agree I the Chapman harmless er- (citing Phillips, Id. Smith v. 455 U.S. applies the ror standard to violations of (1982)). however, question, Fourth Amendment. I Constitutional and rights restrictions exclusionary federal nec- whether the rule government express do not contain exclu essarily applies punishment stage. at the rules, sionary but the rules See, e.g., Ryan, United States 236 F.3d constitutionally they are de based because (10th Cir.2001). con rive from the liberties and restrictions in the In other tained amendments. KELLER, Presiding Judge, filed a words, Mi the Court can enforce KEASLER, opinion in dissenting randa’s rule because the rule HERVEY, JJ., joined. constitutionally Specifically is based. sentencing, At State offered evi- pro to explained respect “[w]ith involving offense dence an extraneous courts, ‘authority ceedings state our is Appellant cocaine. appellant possessing enforcing to the commands of the limited ” objected claiming that this unsuccessfully, (quoting Id. United States Constitution.’ of, in violation inter evidence was obtained Virginia, Mu’Min alia, to the United (1991)). 1899, 114 and that exclusion- States Constitution analysis applies same in the instant The ary rule its have barred admission. We basis, case. a Without the erro- been to determine whether asked authority Court would obtained in neous admission to make the Fourth Amendment exclusion- the Fourth Amendment violation of ary applicable subject As a to states. amounts constitutional error to result, provisions Appellate harm Rule of analysis the erroneous of Texas 44.2(a).1 that it Procedure I would hold admission of evidence obtained not, is non-constitutional does instead Fourth Amendment must be Rule 44.2(b).2 governed by 44.2(a)’s Rule constitutional standard. judgment We reverse the of the Court b-t. for a remand police a Lubbock August

pursuant Appellate Rule Procedure private to a resi- officer was summoned 44.2(a). investigate dispute a domestic dence girlfriend. his involving appellant and residence, J., COCHRAN, the offi- joins Upon arrival inside the with note. Tex.R.App. that, 44.2(a) appellate punishment. P. [i]f Rule states conviction or 44.2(a). in a criminal case reveals constitution- record subject al re- error that harmless error error, view, that, 44.2(b) "[a]ny appeals court reverse a other must 2. Rule states defect, punishment irregularity, that does not judgment of conviction or unless or variance disregarded.” affect must court determines reasonable substantial Tex.R.App. 44.2(b). P. doubt that the error did not contribute jacket pants pocket onto a as a from his front shotgun cer found an unloaded as well lying pistol baggy loaded inside shoe that was floorboard—a on the backseat sleep- officer, appellant not, next to a sofa where was according to the located ing. appellant officer arrested jacket the officer first looked when girlfriend aggravated assault of seizing baggy, into the vehicle. After arrest, to that conducted search incident appellant. arrested The State’s the officer two during which the officer discovered bag that the expert witness testified plastic bags pocket appel- in the front stop weigh- cocaine during this contained pants. bags lant’s contained eleven grams, including adulterants ing .58 7.29 bags weighing smaller of cocaine objected to this Appellant dilutants. twice grams. placed appellant The officer evidence, in claiming that it was obtained police car and returned to the residence and state Constitu- violation of the federal inside, girlfriend. offi- with the Once the that Article 38.28 of the Code of tions and sofa, near cer found more evidence the precluded Criminal Procedure3 its admis- pistol, including shotgun, another another sion. The trial court admitted evi- othe scales, plate holding a set of a a rolled appellant dence and was sentenced to residue, dollar bill that contained white a $6,000 prison in a twenty-five years and rolling papers, bag set of of ammuni- fine. with, charged appellant tion. The State that Appeals The Court of determined of, jury possession and a convicted him admitting the trial court erred the evi- with intent to than deliver more four but during the vehicle search.4 than dence obtained grams less of cocaine. In concluding that the search violated the sentencing phase, At the the intro- State Amendment, that the court found that during duced evidence was obtained being operated not “the vehicle was 11,1997 September stop traffic of a vehicle law, of a traffic and the State did violation appellant passenger. was a articu- prove possessed not that the officer stop officer who conducted the testified lable facts which would create reasonable only doing his reason for so was be- suspicion that the vehicle or one of its driving cause the vehicle “was with its be, was, been, would occupants had or soon lights bright.” During stop, the the activity.”5 Then the involved in criminal officer a flashlight shined into the vehicle explained court and, though initially any- he did not see “succinctly clearly posi- had stated its thing suspicious, appellant making saw tion now us:”6 the question on the before gestures.” “furtive interpreted The officer in violation of the use of evidence obtained gestures by appellant these as an effort not violate Fourth Amendment does itself place something either or reach Therefore, court the Constitution.7 or under seat. The officer floorboard evidence, reasoned, admission of such appellant then asked to exit the vehicle error, appellant baggy” directly toss a “little did not offend the though and saw (Tex. by 3."No evidence obtained an officer or oth- 4. See 13 S.W.3d 492 Hernandez App. person any provisions er in violation of — Amarillo Texas, Constitution or laws of the State of or 5. Mat 506. of the Constitution or laws of the United America, evi- States of shall be admitted in Hernandez, any 13 S.W.3d at 508. dence the accused on the trial of Art. criminal case.” Tex.Crim. P.Code Scott, 38.23(a). 7. See 524 U.S. at seizures, Constitution, violated, required by not be and no Con- shall itself, issue, stitution and was not constitutional upon probable Warrants shall but error. The court determined that the trial cause, affirmation, supported Oath or subject to the court’s error was therefore particularly describing place 44.2(b) provisions Rule and that searched, persons things a slight error had no more than effect on to be seized.8 jury’s sentencing determination. Nothing explicitly the text commands court affirmed. in viola- the exclusion of evidence obtained Court, petition appellant his moreover, in Nothing, tion of these terms. claims that incorrect- the Court remaining concerning amendments non- ly determined that error was trials, conduct of criminal or in the Four- Rather, argues, constitutional. he Amendment, compels teenth the exclusion exclusion of evidence from an unreasonable obtained of its Indeed, history search. colonial Thus, terms. failure to adhere to the ex- Bill framing Rights indicate clusionary rule amounts to constitutional those Amend- who crafted subject provisions Rule primarily ment were concerned with ensh- 44.2(a) and that State to show rining pro- in our fundamental law certain the error was harmless a reason- against kind generalized, tections of granted appellant’s peti- doubt. able We that the arbitrary, oppressive and searches important question tion to of decide general and of assis- old warrants writs pro- federal constitutional law and criminal produced.9 Relying expe- their tance cedure. framers, rience, the Fourth Amendment’s II. loose, dangers cognizant ever liberty and to- general posed searches The Fourth Amendment to the United order, provides imported accordingly Constitution lerable civil States protections that and enhanced the right people secure in [t]he houses, common law afforded.10 The debate over persons, and ef- papers, their fects, pri- against and the Fourth Amendment thus focused unreasonable searches Founding, View 8. U.S. amend. IV. Form Words: The From the Const, Rights: Original Meaning and The Bill of Maclin, Tracey Complexity See The Understanding (Eugene Current Review, 77 A Amendment: Historical ed., Hickok, 1991) response (concluding, in (1997); Stewart, B.U. Potter L.Rev. Stoiy, perhaps accurate more "[i]t Beyond: Road v. Ohio The to describe the amendment as an extension Origins, Development and the Exclu Future of law”). experience included the common This Cases, sionary Rule in Search-and-Seizure law Entick v. such famed common cases as (1983); Nelson B. Colum. L.Rev. (K.B.1765) Carrington, Eng. Rep. 807 History Development Lasson, Wood, (K.B.1763) Eng. Rep. Wilkesv. to the Consti United States warrants), general (helping to use of end the tution 51-105 Founding gen were well-known extent, 10. See eration, Joseph Story, Boston Commentaries a lesser and to (4th § 1902 Constitution of the United States Otis’s writs of in which James assistance ed.1873) (1833) (stating that the Fourth arguments opposing fueled stirring the writs the affir- Amendment "is little more than eventually legal political fires that great mance of constitutional doctrine of a Stewart, uprooted the colonies. See them in common-law"). also P. Wil the son, See Bradford supra note at 1369-71. Than a The Fourth Amendment as More

HI compulsory production phraseology and did not con- found marily upon the Constitu- private papers as exclusion.11 Ulti- violated cern remedies such these then, and, result, the evidence could mately, nothing the constitutional tion structure, early history at trial.14 the defendants text or be used Amendment, rely upon indicates that its did not Importantly, the Court require the exclusion of unreason- ex- terms Fourth Amendment alone for the Rather, ably obtained evidence.12 -it principle it announced. clusion intersection between the was the Fourth Amend- we know of the What required Fifth ex- Amendments principle to us from ment exclusion comes guided the clusion. This intersection also long line United States v. United Court’s decision Weeks distinguished pedi- Court decisions with States,15 which extended States,13 Boyd gov- gree. United There, a rationale in federal cases. defen- proceed- initiated a civilforfeiture ernment illegal gambling moved dant convicted two New York businessmen ing against private trial for the return of letters before illegally imported thirty-five cases of who violation of the he claimed were plate glass. The defendants there claimed agreed Fourth Amendment. The Court appeal government’s that the demand that the seizure there violated the Consti- for invoices violated the Search and Sei- property had tution and that to be zure Clause of the Fourth Amendment and returned to the defendant before trial. the Self-Incrimination Clause of the Fifth Accordingly, the Fifth Amend- Noting relationship Amendment. be- amendments, prohibited subpoe- of a tween the two the Court ment the issuance ed., nor, Cong. (J.Gales, any depend, far I have recollec- 11. See 1 Annals as Kamisar, (Did) tion, See also Yale supposed depend Does has ever been to (Should) Exclusionary the Rule on a Rest upon lawfulness or unlawfulness of the the "Principled "Empirical Basis" Rather Than an mode, by evi- [T]he which it obtained.... Creighton Proposition”?, 16 L. Rev 571- high- charges the dence is admissible on (1982) (describing congressional debate on crimes, though may est even have been Amendment). by person, by trespass upon the or illegal any and means. ... In other forcible Amar, 12. See Akhil Reed The Role Exclu instances, many especially and on trials for sionary Against (Except Rules: to Exclusion crimes, evidence is often obtained from the Violations), Privacy Protect Truth or 20 Harv. possession by force or of the offender Pol’y (1997) (“The history J.L. & Pub. contrivances, easily which one could not emphatically rejects any idea of exclusion. propriety, reconcile to a delicate sense of English underlying common law cases municipal support upon the foundations of recognized the Fourth Amendment never ex aware, England recognize that such evidence clusion. still does not ex law. Yet I am not remember, .... state clusion No court—and ever dismissed has that account been virtually every State's constitution had a incompetency. counterpart to the Fourth Amendment —ever Eugenie, v. La Jeune 26 F. Cas. United States century.”); excluded evidence in this first (C.C.D.Mass.1822) (emphasis Ak 843-44 Amar, added). hil Reed The Constitution and Criminal (1997) (stating "[sjupport- Procedure point rule cannot to a ers of 29 L.Ed. 746 13. 116 U.S. major Founding— single statement from the or even the antebellum or Reconstruction supporting Fourth Amendment exclu eras— 630, 634-35, 6 S.Ct. 524. 14. Id. at trial."). sion of evidence in a criminal Story support offered further learned Justice 383, 34 S.Ct. 58 L.Ed. 652 15. 232 U.S. early for this historical in an case: ordinary municipal In the administration of right using law the evidence letters, production gov- na for of the searched the home Dollree produce pic- not at four and a ernment could them trial. books hand-drawn ture that the state described as obscene. major Weeks controlled the Court’s next The Court held that the search violated exclusion, Lumber decision Silverthome Fourth exclu- Amendment and that the States,16 Co. v. United which involved a sionary rule prohibited introduction company’s raid of a lumber offices police tainted state trial. Mapp’s evidence seizure Jus papers. of its books and Clark, joined by Justice Chief Justice War- tice Holmes’ terse in that Brennan, Douglas ren and Justices though, ambig what left made clear Weeks made several references the intersection uous: seized in evidence Fourth and Fifth Amend- between the the Fourth Amendment was inadmissible ments, ultimately but concluded that the contin federal court. The Court then justified alone exclu- amplify importance the feder ued Specifically, plurality employed sion. subsequent rule in al two (1) language contending that the Constitu- cases, Ag- Gouled v.. United States17 and exclusion; (2) tion mandated the Constitu- States,18 nello v. United both of required judicial to protect tion exclusion that, pursuant prin found exclusion (3) governmental integrity; ciple emanating from intersection of reme- compels Constitution exclusion as a Amendments, the Fourth and Fifth a de dy and deterrent. As to the first conten- not move trial for fendant need before tion, wrote, exclu- Justice Clark “that the return of order to have it sionary rule an part essential both early cases thus demon excluded. The and Fourteenth Amendments is strate that the federal doctrine of exclu cases, only prior dictate logical not Constitution, has sion its roots very good it also As but makes sense.”20 (with though exception of Silverthome contention, Clark second holding) not in Lumber Co.’s professed, importantly, More Amendment alone. early any did cases [njothing destroy government can exclusionary rule was an hold than its failure to observe quickly more explicit or constitu constitutional element worse, laws, disregard of its own its tionally remedy. compelled charter of its own existence. decision, ... Our founded on reason that the

It was not until Ohio19 truth, more gives to the individual no exclusionary applied against rule was guaran- than that the Constitution which In four found process, States. Justices him, no police tees to the officer less Amendment did fact than that to which honest law enforce- application Mapp, In require rule. and, courts, entitled, to ment is suspected for a man of a police, looking area, judicial necessary integrity in the so bombing recent Cleveland 643, 1684, 182, 40 S.Ct. 64 L.Ed. 319 19. 367 U.S. 16. (1920). (1961). 17. 255 U.S. 41 S.Ct. 65 L.Ed. Id. at 81 S.Ct.

18. 269 U.S. 70 L.Ed.

H3 based on evidence derived justice.21 questions were true administration of search or seizure. from an unreasonable contention, Justice And as to the third majority for the Justice Powell’s “that described the rule as command Clark purpose”25 “broad deterrent explained the clear, this Court has held which concluded that rule and constitutionally required— specific, judicially remedy created “the rule is a judicially implied if safe- even —deterrent safeguard Fourth Amendment designed to insistence which the guard without through deterrent ef rights generally its Fourth Amendment would have been re- fect, personal constitutional rather than ‘a duced to form words.’”22 Justice aggrieved.”26 Justice right party reversal, Black the fifth vote for supplied in ma this conclusion his Powell reiterated accept plurality’s con- but refused Powell,27 in Stone v. jority opinion tentions that the Fourth Amendment alone corpus relief is Rather, that federal habeas held exclusion. Justice Black required claiming a Fourth prisoner unavailable to a constitutionally com- found exclusion to be trial, at his where Amendment violation pelled only “when the Fourth Amend- op provided a full and fair ment’s ban unreasonable searches the state has Amend portunity litigate the Fourth together and seizures is considered with personal against com- ment claim: “the rule is not the Fifth Amendment’s ban Thus, right. It is not calculated to pelled self-incrimination.”23 even as constitutional injury privacy of the ushered in the modern redress the Warren Court seizure, law, any era of Fourth Amendment it still had victim of the search or ”28 too late.’ firmly by majority ‘reparation held vote that the comes position emphat most required itself state Court’s modern Leon,29 apply exclusionary rule. ic in States v. which estab courts to United “good exception faith” lished the federal majorities More recent requirement. There the warrant have retained the Fourth Amendment ex- White, Court, opinion by in an majorities, clusionary rule. Those same stated: however, plainly rejected specific propositions for which the Language opinions of this Court Black,

Mapp plurality, and Justice con- Justices has sometimes individual tended. is a implied Calandra,24 necessary corollary States v. United Amendment, Ohio, Mapp v. Court held that a witness summoned to appear grand jury may before a not refuse (1961); Olmstead v. Unit questions ground

to answer that the 659-60, 81 S.Ct. 1684. 26. Id. 21. Id. at 648, (quoting S.Ct. Silvert

22. Id. at 81 1684 3037, 465, 96 S.Ct. 49 L.Ed.2d 27. 428 U.S. Co., 392, at 40 horne Lumber 251 U.S. S.Ct. (1976). 1067 182). 486, J., 662, (Black, (quoting 96 S.Ct. 3037 Linkletter 28. Id. at 23. at 81 S.Ct. 1684 concur- Id. 618, 637, 1731, Walker, ring). 85 S.Ct. 381 U.S. v. (1965)). 14 338, 613, 38 L.Ed.2d 561 24. 414 U.S. 94 S.Ct. (1974). 3405, 897, L.Ed.2d 104 S.Ct. 82 29. 468 U.S. (1984). 677 348, 25. Id. at 94 S.Ct.613. 114 States, 438, 462-63,

ed held exclusionary 277 U.S. 48 S.Ct. which rule did 564, (1928), 72 L.Ed. 944 that the rule or apply probation pro- not revocation conjunction required by the of the is Thomas, ceedings. Court, Justice for the Fifth Amendments. emphasized repeatedly “[w]e wrote have Ohio, v. 661-62, supra, 1684 81 S.Ct. government’s use of evidence (Black, J., concurring); Agnello v. Unit the Fourth States, 20, 4, ed 33-34, 269 46 U.S. S.Ct. not Amendment does itself violate the implications 70 L.Ed. 145 These exclusionary Constitution.... rule is not need detain us The Fifth long. judicially means il- deterring created has theory Amendment not withstood legal searches and seizures.”32 time, critical analysis or test of see continued, “[mjoreover, Thomas Maryland, Andresen 463, 96 rule is than consti- prudential rather 2737, (1976), L.Ed.2d S.Ct. 49 627 mandated, tutionally we held it have Amendment, “has never applicable only where its deterrence proscribe the intro interpreted been outweigh its social benefits ‘substantial illegally duction of all most costs.’”33 As Court’s persons.” proceedings all Powell, explications origins recent Stone 428 96 (1976).30 3037, rule, S.Ct. purpose exclusionary these modern cases that therefore control clearly Finally, reaffirmed inquiry precedent governing our into Pennsylvania recently principle most Scott,31 Board Probation and Parole v. instant matter.34 905-06, (1997) (recognizing prophy 30. Id. at 104 S.Ct. 944 P.2d 274 3405. lactic, constitutional, not nature of the Fourth 357, 2014, 31. 524 U.S. holding Amendment rule but 344 re that the New Mexico Constitution does exclusion); quire Richardson v. 841 32. Id. at 118 S.Ct. 2014. 603, (Okla.Ct.Crim.App.1992) P.2d 604 (recognizing that the Oklahoma Constitution Leon, (quoting Id. at illegal exclusion for searches and U.S. at seizures but that the Fourth Amendment does Many recognized state courts also Christensen, not); State v. 244 Mont. holding principle, modern (1990) (recognizing that P.2d judicially- Amendment rule is judicially-created “exclusionary rule is a rem prophylactic created and not a constitutional edy right”). personal and not a See, e.g., Motor Admn. v. mandate. Vehicle severing The modern trend Fourth Amend Richards, 58, 65 356 Md. 739 A.2d judicially-created ment from remedies (1999) (explaining emphasized re "[w]e have has, nonetheless, scholarly received criticism. ob peatedly that the State's use of evidence See, Heffernan, e.g., C. William The Fourth tained in violation of the Fourth Amendment Remedy, As A Constitutional Constitution.”); violate the itself (2000) (arguing for the Geo. L.J. 858-59 Revenue, Riche v. Director S.W.2d right); reintegration remedy (Mo. 1999) (recognizing Baldwin, Due Process and the Fletcher N. Court has held that the Fourth Amendment Justification, Exclusionary Integrity exclusion); Rule: require Colorado does Ahart v. 505, (1987) (arguing Corrections, Servs., 539 that 39 U. Dept. Div. Adult 964 Fla. L.Rev. wrongly 517, (Colo.1998) was the Calandra-Leon line cases (recognizing P.2d 520 that 9, decided); Kamisar, supra note at 565 judicially-created is a the rule Turner, 19, (same); & Robert C. remedy); Thomas S. Schrock State v. 257 Kan. 891 Welsh, 317, same); Exclusionary (1995) Up Calandra: The (recognizing From P.2d 319 809, Requirement, a 59 Marquart, Rule as Constitutional State v. 123 N.M. 945 P.2d 308, (“when 251, (1974) 1027, denied, 626, 309 (App.), 1029 cert. 123 N.M. Minn. L.Rev.

H5 exclusion and III. judi- as a have instead the rule described In accordance with Fourth Amendment cially prophylactic. created Based this text, I history precedent, hold would I analysis, would fur- that the Fourth Amendment not re- does in ther hold the error that because quire the of evidence as exclusion error,36 trial case was non-constitutional a result an unreasonable search sei- appropriate is that con- foremost, zure.35 such an First exclu- 44.2(b), requiring appellate tained in Rule sionary rule is absent from the constitu- to disregard courts non-constitutional er- addition, tional text. In its historical rights.37 rors that do not affect substantial background that indicates serve, authority, appellant Amendment was meant much Despite modern like common law of search seizure in urges us to our decision follow Holcomb constitutionalized, State,38 as a limitation v. which found that the admission state action gathering intolerable error illegally seized evidence was “of (for which, violation, such, evidence cases of As constitutional dimension.”39 “the exist), gov- other not as a may remedies error not declared to be harmless erning judicial decisions to admit or ex- reviewing error unless the court is able Finally, clude such evidence. modern declare it was harmless a Holcomb, rejected cases have the notion that reasonable though, doubt.”40 1544, successfully search and seizure conduct is 117 137 L.Ed.2d 718 unreasonable, (1997); 170, challenged [the as 994 S.W.2d defendant] Gonzales right a process (Tex.Crim.App.1999). ap- has due does exclusion of the 171 n. Nor evidence, disputed suggest pellant type exclusion is the that this is only expression judi analysis. concrete See which adverse that defies harmless error id. at cial review of unreasonable 171-72. search and sei take.”). zure can Tex.R.App. 44.2(b). P. 35. The State does now contend that the September evidence from vehi- (Tex.Crim.App.1972), 38. 484 cert. S.W.2d 929 Rather, properly cle admitted. search was denied, 1404, 940, 93 S.Ct. U.S. simply the State contends that its admission was not constitutional error. I therefore as- sume, deciding, without Court of 39. Id. at 934. Appeals correctly Sep- determined that the 11, tember 1997 search and seizure violated 40. Id. I am aware of Court’s the Fourth Amendment and that the fruits of Carolina, Bumper decisions v. North that search were inadmissible at trial. See 543, 1788, U.S. 88 S.Ct. 1684; Mapp, 367 U.S. at 81 S.Ct. Tex (1968) Maroney, Chambers v. U.S. 38.23(a). Crim. P.Code Art. 26 L.Ed.2d 419 (nor he, Appellant argue Bumper could The Court that "consent” that held structural, only successfully) opposed given police that this is after the have asserted trial, Fulminante, they justify See cannot error. have a warrant a Arizona upheld U.S. search. the Court Chambers (1991) (distinguishing trial errors seizure and admission into from struc- ultimate by stating petitioner’s tural errors that structural error is of ammunition from the home. cases, "beyond applied within "defect in the framework which the In both the Court proceeds, simply trial rather than error in a reasonable doubt” standard of harmless er- an review, Indeed, itself.”). concluding Bumper that process ror trial neither recog- in that Court nor this Court has ever erroneous admission of rifle case harmless, nized was not and in Chambers that ad- the erroneous admission unconstitu- ammunition, error, tionally if evidence as structural error. mission States, However, nothing in harmless. there is those See Johnson v. United prog separated was decided before Calandra its be for [from Constitution] eny, purposes applying all of which have held that harm- exacting the Consti less tution does categorically require less error test” under 44.2.42 Rule Howev- er, I exclusion of evidence obtained via an ille with disagree Corpus Christi addition, or In gal analysis search seizure. Hol Article 38.23 court’s issue. predates mechanism, comb our modern law is a statutory of error not a constitu- analysis one, and its in tional any predicated bifurcated harm crimi error there- It analyzed nal cases. therefore clear on to us must be under the standard of quoted language from Holcomb con errors. non-constitutional We flicts with modern Fourth law have that Article held 38.22 errors are jurisprudence. subject Texas If analysis with criminal to the harm for non-con- errors,43 today, though allowed to after our decision even that stat- stand stitutional protect among designed it would work much mischief lower ute was involving in in courts cases erroneous articulated Miranda. If a defendant admission evidence obtained violation wishes to invoke the of harm standard errors, I he Amendment. would there must find a consti- language tutionally fore disavow that Holcomb based rule to do so. my proposed is inconsistent with hold Finally, appellant upon relies Dicker- ing in this case. son persuade v. United States44 to us Appellant protec- also that the is constitution- relies Dickerson, ally of Article required. tions 38.23 of the Code of Crimi- the United application nal Procedure and its in Brown States Court held that Mi- State,41 Corpus protections v. familiar are constitu- where the Christi Court randa’s tional found that the statute “cannot in nature and thus could not be harmless.”). suggest question vitality prop- cases to that the can Whatever these maintain, though, only analysis fuels the current dispute. er harm was an issue in cases jurisprudential disconnect Court arrived at those conclusions in a most were, Bumper manner, Court because and Chambers perfunctory offering no like Holcomb decided our there In-

whether was constitutional error. before cases, deed, line of Calandra-Stone-Leon-Scott Bumper solely Mapp, supra, relied clearly apply the held that failure to Chapman California, 386 U.S. exclusionary rule does not violate the Consti- (1967), S.Ct. while supra accompanying tution. See Part II and simply Chambers that the stated Court Thus, explicit- while the has not notes. prepared "not to differ with two courts ly portions Bumper, overruled the Cham- below” that that if there had held were error here, Chapman bers at its issue modern evidence, admitting it was harmless severely undermine Fourth Amendment cases beyond a Chapman, reasonable doubt. application of the constitutional Court's course, that, held "before constitu- federal error rule in those cases. harmless, tional can be held the court able must be to declare a belief that it was State, (Tex. 41. Brown v. S.W.2d harmless a reasonable doubt.” Id. App. Corpus Christi added). — (emphasis Therefore I am forced Bumper conclude that ma- Chambers 42. Mat271. jorities thought any error in the trial cases court's admission of evidence those (Tex. 999 S.W.2d Moore subject was federal constitutional error Fulminante, Crim.App.1999). Chapman. rule of See (citing 111 S.Ct. 1246 Chambers among authority a list for the of cases proposition errors that "most constitutional

H7 reaffirmed, nounced, Dickerson by superseded Congress.45 a mere act of majority opinion majority; The Chief Justice’s of- from a came Court ulti- upon fered several reasons for the Court’s Clark’s insistence the Fourth Amend- First, ap- mate conclusion. exclusionary gar- Court for the ment bases states, plied something Second, it plurality Mapp. the rule to the in only nered cannot do viola- absent constitutional while Miranda recog- violations have been Second, tion.46 the Court stated that its by Supreme cognizable nized Court as Miranda’s conclusion about constitutional corpus, violations based habeas by prior recog- status was buttressed its exclusionary rule the Fourth Amendment’s nition that Miranda challenges could be cogni- generally have been found be not corpus proceedings.47 mounted in habeas Third, Dickerson involved an act of zable. Third, specific language Miranda itself Congress in to discard Miranda’s sought suggests majority thought that “the by holding making voluntariness the sole announcing a constitutional rule.”48 determining to admit test whether Fourth, Court Miranda invited police by criminal statements made to de- legislative “protect action to the constitu- case, however, fendants.52 the instant right against tional coerced self-incrimi- Ap- neither this nor the nation” where such action was at least as peals’ discard opinion seeks to effective as the Miranda warnings them- exclusionary simply rule. We are eval- Fifth, subsequent selves.49 cases have uating scope the nature and of the rule “referred to Miranda’s constitutional un- purposes applying our law of reversible stare decisis derpinnings.” Finally, error; intact, the rule remains both under Miranda’s weighed preserving favor of all, precedent and Article 38.23. After protections they have “become contrary implication, it appellant’s embedded in police practice routine to Mapp’s exclusionary reaffirmation of the point where the warnings have be- application against rule and its the states part come of our national culture.”51 legal have been “embedded our Mapp plurality’s culture,” Dicker- why

Four factors dicta demonstrate son persuade First, concerning me here. the constitutional basis for the Miranda constitutional rule that Finally, although an- rule.53 it is true that the 45. Id. at 120 S.Ct. 2326. Clause rather than the Fourth Amend- cess may process requires ment. It be that due an remedy 46. Id. at to vindicate Amend- 2326. effective process ment Because due often violations. 47. from other created Id. 2333 n. 120 S.Ct. 2326. derives its force law, law, any violation of the even state statu- law, tory process Id. at could be framed as a due S.Ct. 2326. Nevertheless, violation. federal courts do not Chapman-like analysis 49. Id. conduct a for non-con- may explanation errors. The stitutional process incorporates n. 5. that due often its own Id. analysis component harm as a of the constitu- See, example, 51. Id. at 120 S.Ct. 2326. tional violation. United Bagley, States v. § 52. See 18 U.S.C. 3501. If an rights is rule to vindicate Fourth Amendment possible explanation 53. A requirement, for the process a due then the apparent concerning justified imposing Court’s ambivalence Court would be such States, requirement status rule is the rule but a different may might component apply, the Due Pro- as a roots in not directly Fourth Amendment was Dickerson, appellant

issue points

nothing in opin- either the Chief Justice’s

ion or Justice dissent that Scalia’s so much

as alludes to the Fourth Mapp or Amend- spe-

ment rule. Without such language,

cific appellant relegated to

merely speculating that the current Court plurality view the man-

would like

ner as the Miranda rule. I

Therefore would hold rule claim must analyzed under the standard for

non-constitutional errors found in Rule

44.2(b). I respectfully dissent. INC., FORGE, Appellant,

CHURCHILL BROWN, Appellee.

Joann Hamilton

No. 03-99-00031-CV. Texas,

Austin. 18, 1999.

Nov.

Released for Nov. Publication process reasonably slight process pedigree the due One could but a effect.” A due issue. exclusionary rule conclude that for the Fourth Amendment the standard non-constitu- may explain why adequately promotes help errors deter- Fourth Amend- tional also cognizable generally ment rence for which Fourth Amendment ex- violations are clusionary just as of State corpus, violations rule was fashioned: deterrence habeas corpus simply where law raised on implicated rationale is not the review- cannot be habeas ing they also as due court "has that" the tainted could be framed fair assurance jury, process evidence "did not influence the or had violations.

Case Details

Case Name: Hernandez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 14, 2001

Citation: 60 S.W.3d 106

Docket Number: 861-00

Court Abbreviation: Tex. Crim. App.