Howard v. State, 617 S.W.2d 191

Howard v. State

617 S.W.2d 191

Tex. Crim. App.

1979

Check Treatment

*1 Dwayne HOWARD, Appellant, Edward Texas, Appellee.

The STATE of No. 56991. Texas, Court of Criminal Appeals of En Banc. Sept. 19, 1979. Rehearing Denied June Lowe, Austin,

Hugh appellant. S. for McMurtry, Atty., James L. Nate County Ewald, County Attys., Stark J. D. Asst. Austin, Huttash, Robert Atty., State’s Walker, Austin, Alfred Atty., Asst. State’s for the State.

OPINION

ODOM, Judge. This is an from a appeal conviction possession of less than two ounces of mari- huana. Punishment was assessed at a jail, fine and five days appеl- $100.00 placed lant was probation for twelve months. evening ap-

On the of February pellant companions and two female were in an area behind the Everett Hardware Store leaves, m., in Austin at p. lying 9:40 city police when were they approached by investigating he heard from noises group that area. The officer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍asked what one they doing thеre and answered, girls “Nothing.” They were all building ordered wall of the so they was then Appellant could be frisked. there, doing asked what he was and he said drinking he was beer. When asked if he *2 192 before, intelligible he said yes

had ever been arrested standards to guide “[l]ack[s] had, he were then burglary. All three (Baker with its those enforcement” Aus- placed loitering under arrest for under State, but in fact supra), v. affirmаtively they 23-9. After tin Ordinance assigns arresting legisla- to officer the car, in the a placed arrested give content and responsibility tive appel- of marihuana was taken from baggie defining meaning by to the ordinance one right lant’s sock. of its elements with the “fill in the blank” offending scope standard that makes the In ground appellant his first of error subjective chаllenges sup product the denial of his motion to conduct a of the officer’s was re press, contending the contraband of whether he finds the de- determination covered as a result of an unlawful arrest account of the circumstances tainee’s municipal ordi under unconstitutional found, be, in the officer’s which he is challenge nance. pro Thе ordinance under judgment, satisfactory.1 vides: Having found the ordinance under

“It any person shall be unlawful for patently to be appellant was arrested nighttime in city within the to be in the face, or public private buildings or about or on its we must deter unconstitutional per- premises, right where he has no pursu seized mine whether the contraband circum- suspicious mission to suр have been ant to that arrest should stances, give able to a being and without the trial court. pressed by account of the same.” satisfactory Michigan v. De In recent decision in substantially thfe same This ordinance 2627, 61 Fillippo, challenges to its approved form was over a rule the Court announced State, constitutionality in Sims of evidence introduction permitting the (Tex.Cr.App.). opinion, In that S.W.2d a law arrest under seized to an however, neglected we to consider the force, though subsequent it is then in even element of this offense of vagueness ly declared unconstitutional. give satisfactory being “without able to a however, possible excep recognize did “the standard, we account of the same.” This flagrantly grossly a law so tion of face, find, patently is unconstitutional of reason because it is “in that men of vague terms so to see its would be bound able guess intelligence necessarily common must more could be flaws.” What law applica- to its meaning at its and differ as than one State, tion ....” Baker v. 478 S.W.2d the task arresting officer that leaves to the Connally Gen- (Tex.Cr.App.) quoting one element giving content to Co., eral Construction scope of offense, deciding the and of 70 L.Ed. 322 according his prohibition, ordinance’s of what statutory designation There no a “satis what constitutes judgment of “satisfactory would constitute a account.” defend potential factory account” delegates un- practice, such a standard under which hold the ordinance ant? We to the unrestrained discretion guided and vagueness exhibits was arrested appellant what answers arresting officer to decide pru “any person of reasonable obvious are “satisfac- given potential arrestee should have been dence,” the evidence not. The and which are tory account[s]” suppressed. not only is that the ordinance result statute, prohibited prohibit susceptible new conduct of a narrow- 1. The ordinance is not act, legislative legislative intent. ing by severing and violate the invalid lan- construction State, creating guage, a new in Delorme v. The courts would be as was done prohibiting an of- (Tex.Cr.App.). conduct not theretofore element of S.W.2d 808 one “[I]f State, fense.” Hixon v. single constitutionally defec- offense is found fall, (concurring opinion). tive, (Tex.Cr.App.) sever the the offense must because to scope single broaden the element would of the search of the ing in Baker fruits Alternatively, we note that incident to an following illegal a knife seized arrest. supra, under an uncоnstitutional arrest finding reaffirms the now The Court prose- in a suppressed statute was ordered submission in that re- holding on a switch- unlawfully carrying cution for a conten- to address only We write gard. the soundness of blade knife. We reaffirm *3 respect with the by tion advanced State law, state the Baker rule as a matter of holding of the the alternative independent of the standard announced independently law.1 of state the exclusive basis Court on evi- hold that the DeFillippo, supra, and under an to an arrest dence seized incident 478 v. Baker Discerning that law is excludable (Tex.Cr.App.1972) 445 S.W.2d —from 19, Texas 1, See, Art. Sec. Texas law. two support much the drew Court —cited Constitution; 38.23,V.A.C.C.P. Art. of the Unit- Court Supreme of the opinions holdings,2 of its the State denying erred in ed for one Because the trial court States suppress, ground the was “bottomed on appellant’s motion have it that Baker would Rule’;” is sustained. error ‘Exclusionary federally forged the margin below noted in the holding the ergo, the cause ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is reversed and judgment The “good by the likewise circumscribed remanded. DeFillippo, Michigan v. faith” doctrine DOUGLAS, ONION, J.,P. and TOM G. 2627, 343 31, 61 L.Ed.2d 99 S.Ct. 443 U.S. DALLY, JJ., dissent. DAVIS mеrit the contention (1979). Whatever under the functioning solely Before the court en banc. have were we the exclusionary rule established MOTION OPINION ON STATE’S 643, Ohio, 367 U.S. Mapp v. by states REHEARING FOR (1961) need 1684, we 6 L.Ed.2d today. CLINTON, and do not decide Judge. found original On submission the Court abundantly makes opinion prior of the ordinance de- an essential element “as a is sound “Baker rule” clear that the 23-9, Austin nouncing “loitering,” Section independently of state law” matter 1967, which the officer upon Code of seized incident that “evidence holds appellant,

based his to arrest authority law is ex- an unconstitutional arrest under motion for In its impermissibly vague. statu own law.” Our under Texas cludable that the ordi- rehearing the State concedes and its was enacted exclusionary rule3 tory unconstitutional,” ar- but “facially nance is long be adopted constitutional bases4 flagrant- gues that it is not “so v. Ohio, supra, and Gonzales Mapp v. fore of rea- ly unconstitutional that 401, 187 S.W.2d State, 148 Tex.Cr.R. would be bound to see its sonable early of their example flaws,” (1945), in exclud- is but one as the held it was Court 223, L.Ed.2d 142 grant Appellant 379 U.S. 85 S.Ct. has to vacate filed a motion (1964).” rеhearing, invoking his construction of Court 12(d). original Though Rule submission the V.A.C.C.P., 38.23, along with a series 3. Article panel importance of was to a the Legisla- by Thirty ninth of related measures by the issues warranted raised consideration protect against inva- ture to Court; only opinion the full it rendered the original privacy, en- dates back to its sions of 12(d) applicable. handed dоwn. Rule is not State, in 1925. See Sherow actment The motion to denied. vacate is making (1927) Tex.Cr.R. exclusionary rule application of our first State, supra, 2. Baker v. at 449: State, 93 marking demise of Welchek invalid, appellant being arrest of 247 S.W. Tex.Cr.R. overruling appellant’s mo- court erred in trial suppress search. tion to the fruits of that Rights, I, Constitu- Bill 9 and §§ 4. Article Sibron v. New tion of Ohio, (1968); 20 L.Ed.2d 917 Bеck Today we confirm viability.5 the continued This apparently question rhetorical leaves vitality exclusionary impression of the Texas rule that this statute fits within argument made rejecting “grossly unconstitution- State. exception al” in DeFillippo.1 referred to rehearing motion for is de- State’s of this application “excep- The isolation and nied. tion” is not whаt was intended clearly DeFillippo. Court DAVIS, Judge, dissenting. W. C. In DeFillippo, supra, the saying goes The old that “the criminal addressed which is the identical issue now free because the is en- before this Constable erred” Court. defend- p. ant was 10:00 m. larged by alley this case to situations where the seen in an at with process taking err. woman who was in the Constable does not On submis- cаlled sion, pants her Police were to the majority of this Court down. held *4 a call having location received con- of after City Austin statute was uncon- cerning The persons. defend- intoxicated stitutional and that evidence seized in a city ordi- ant was under a Detroit arrested search incident to arrest under that un- nance provided: which was constitutional ordinance inadmissible.

I agree original opinion that the was correct “When officer has reasonable in holding the Austin un- behavior vagrancy statute cause to that the of an believe constitutional, investigation but I write further to disassociate individual warrants may myself ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stop for misapplication activity, from the Court’s of criminal the question and It shall be Michigan DeFillippo, person. such pursuant stopped unlawful (1979) person for any and Baker State, identify to this him- section to refuse to (Tex.Cr.App.1972). 478 S.W.2d 445 added) self.” submission, (Emphasis opinion original the on it is stated, offhandedly Austin statute, This stat- like the ute,2 suffers from the same re- infirmity [Supreme] DeFillippo], Court [in as ferred submission however, recognize did possible ‘the ex- officer the “leavpng] arresting task of the grossly flagrantly of a law so ception giving of- content to one element the unconstitutional of rea- was fense.” ordinance found The Detroit sonable would be to see bound subsequent to be DeFil- unconstitutional its flaws’. What law be more could arrest, lippo’s the of the yet, determination flagrantly grossly unconstitutional not unconstitutionality statute’s did fore- than one that leaves to the offi- arresting admissibility close the of evi- issue of the giving cer the task content to one dence to an arrest under pursuant seized deciding element of the and of that statute. scope the of the prohibition, ordinance’s judgment according DeFillippo to his of what to this was arrested identify him- ‘satisfactory constitutes a account’ ordinance when he refused potential defendant?” self. A to this arrest subsequent search will beat in not be to a “This cause be reversed and remanded 1977 should held standard testimony high Judges in because of the admission of the rela- for the 1965.” was too (Tex.Cr.App. upon appellant’s per- See Sims 391 S.W.2d 63 tive to what was found son, 1965). having been found samе virtue of his 727a, warrant, unlawful arrest without a Art. provides: (1925)...” 2. The ordinance C.C.P. any person within “It shall unlawful for be interesting, city nighttime in or It is as the State the public in the about observes to be premises, buildings rehearing portion private or motion “that the of the permission right or ordinance now held to be was where he has no circumstances, flagrantly suspicious not so under bеing without satisfactory give as to account of command the attention the Honorable able to Judges cop in 1965. of this Court The on the the same.” revealed a in his package of marihuana Court held subse- that the charged not with pocket. DeFillippo quently was determined of the Detroit invalidity ordinance, vagueness grounds violation did but was ordinancе on not validity undermine the of the arrest made marihuana, with possession of the as was ordinance, for violation of that and that the in this case. in the evidence discovered search should recognized first suppressed. have been (1) established principles that: an officer rehearing, this On court reaffirmed person search without a warrant was position taken evidence seized arrested, (2) validly constitutionality inadmissible because the Austin ordinance a search incident to an arrest does not de- fit the DeFillippo “grossly pend on whether there is an indication that exception, in that it al- unconstitutional” person possessed weapons; evidence or lowed the officer to determine arresting rather, arrest, the fact of the stand- lawful given whether the arrested had ing alone authorizes a search. pres- of his “satisfactory officer a account” The Supreme Court next turned to the ence. The Detroit ordinance also allowed issue of whether an arrest made under a and un- arresting “unguided officer the statute, which was subsequently declared to restrained” discretion to whether determine unconstitutional, was a valid arrest. “given behavior further inves- warrants The Court identified the issue as follows: statute, as did the tigation.” The Detroit good “Whether an arrest made in faith intelligible Austin lacked stan- *5 reliance on an which at the those with its en- guide dards to time had not been declared unconstitu- forcement; however, tional, is regardless subsequent valid of a and fla- “grossly did not find that it was judicial determination of its unconstitu- unconstitutional. grantly” tionality.” which the Court upon The other case Turning to the facts in DeFillippo, Su- holding supra. is Baker v. bases its preme Court found that police case, that it was In that the Court held had abundant probable cause to believe that suppress error not to the knife seized as a DeFillippo was committing an offense. an uncon- result of an arrest authorized The Court stated: However, the stitutional statute. prop- relies for this upon cases which Baker “A prudent officer, in the course of deter- ap- from the law distinguishable osition are mining whether defendant had commit- or not plicable in this case. Whether Baker ted an offense under all the circumstanc- federally forged ‘Ex- was “bottomed on the record, es shown should not have ”, stated therein: Rule’ this Court clusionary been required anticipate that court invalid, being would later hold the unconsti- ordinance “The arrest of overruling appel- tutional. the trial court erred in suppress the fruits lant’s motion Pоlice are charged to enforce laws until York, 392 that search. v. New Sibron and unless they are declared unconstitu- 20 L.Ed.2d 917 S.Ct. tional. The enactment of a law foreclos- Ohio, (1968); 379 U.S. S.Ct. Beck v. es speculation by enforcement officers (1964).” concerning its constitutionality —with possible DeFillippo distin exception of a law so Court in any per- unconstitutional that case from the guished holding cases, son of New reasonable would be line of such as Sibron bound to see its Society supra, flaws. would be which held to be ill of a police upon served if its officers took it authorized the search statutes which without themselves to determine which laws are ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cause and probable without in such constitutionally and which are enti- said a valid warrant. The Court required sup added) cases, tled to Rule (Emphasis Exclusionary enforcement.” pression of obtained a result of subsequent evidence as result of the search to the arrest a search to an unconstitutional appli- is not rendered through inadmissible statute. The Supreme Court illustrated the Michigan DeFillippo, supra. cation of distinctiоn to be made in these cases in I, Article 9 of the Sec. Texas Constitution Illinois, 85, 100 Ybarra v. provides: 62 L.Ed.2d 238 The Court stated in per- in their people shall be secure footnote 11 opinion: of that sons, houses, possessions,from papers and Michigan “Our decision last Term in searches, and all unreasonable seizures or DeFillippo, [supra], point does not in а or to any place, no warrant to search different direction. There we held that shall issue thing, seize the Fourth and Fourteenth Amendments near as describing without them not been violated an arrest based ha<d cause, supported by probable nor without police probable on a officer’s cause to oath or affirmation.” believe suspeсt had committed or to this Commentary As the Interpretive was committing substantive criminal notes: Section though creating even the statute guarantee “This section does not the offense subsequently was declared seizures, only but where all searches and Here, unconstitutional. offi- constitute government the acts of the Ill.Rev.Stat., cers strength acted on the unreаsonable search and seizure. 108-9, ch. Sec. but that statute does defined, there- is not term ‘unreasonable’ not define the elements of a substantive fore, or not becomes what reasonable criminal offense under state law. The added) judicial (Emphasis question.” purports statute instead to authorize the holding of the ma- Apparently, under the policе in some circumstances to make that a jority in this the determination probable searches and seizures without subsequent to an statute is unconstitutional cause and without search warrants. This causes arrest and that statute search under law, therefore, state within falls the cate- to at- of a search” “unreasonableness gory purporting of statutes to authorize tach and relate the time back to cause, probable searches without search. inval- Court has not hesitated to hold

id as authority for unconstitutional I dissent. See, searches. e. v. Puerto g., Torres 2425, Rico, 465, U.S. DAVIS, McCOR- DALLY and TOM G. 1; L.Ed.2d Almeida-Sanchez United MICK, JJ., dissent. join in this States, 2535, U.S. S.Ct. 596; v. New Sibron 20 L.Ed.2d (Tex. In Ramsey Al

Cr.App.1979), quoting this from stated, meida-Sanchez, supra, BROWN, Appellant, Clifford James rulе is purpose exclusionary “If the conduct, unlawful then police to deter Texas, Appellee. The STATE from a search should evidence obtained No. 65431. if it can be said that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍suppressed only be law officer had knowl- enforcement Texas, Appeals Criminal charged with edge, may properly Panel No. 3. was unconsti- knowledge, that the search March under the Fourth Amendment.” tutional Rehearing July Denied this where arrest, made a valid

which at that time had not been declared

unconstitutional, evidence seized as a