Hulit v. State

оbjections argument have would sound, legally the fact remains that been reasonably as a could have chosen

defendant objections.

strategy His not make a such strategy His confess

plea guilty. was to work, mercy. and is

and ask for did not that he now chooses to avoid

understandable by turning consequences of his decision clear,

against counsel. But the law his

me, that a reversal on there should record. We have said more than once

lately that claims ineffective assistance usually appeal

cannot be evaluated on be the record will not reveal whether

cause defense counsel were made

decisions of

strategic reasons. See Jackson State. (Tex.Cr.App.1998); Oldham

S.W.2d (Tex.Cr.App.

1998). should have The Court holdings.

followed those to leave unreviewed

The Court’s decision Ap- Court of

the erroneous decision

peals appellant a trial gives new deserves, he he it also has not shown unjust

saddles his trial counsel with an find-

ing that he rendered ineffective assistance injustices, respectfully To

his client. these

dissent. HULIT, Appellant, Allen

Robert of Texas

The STATE

No. 877-97. Texas, Appeals of Criminal

Court of

En Banc.

Dec.

officer on an call. ambulance A woman —it reported was that there was a possi- woman bly having a attack in heart a vehicle at that Page address.” the first was officer to ar- pickup rive. He a truck “sitting found in the road, inside lane” of the service lane, marked for a turn about 50 feet back from the intersection. An individual with “long ponytail” hair in “slumped was over steering asleep Just like wheel. he was passed possibly out or had a heart attack something laying and was over the steer- ing engine running; wheel.” The truck’s was all up. rolled windows were There was no other road. traffic on the Page pulled around, his marked vehicle truck, behind the emergen- and activated his cy lights. main The officer’s concerns were “emergency point сoncerns at medical ... to make he was sure alive and well.” officers, police Page Like all Benbrook responder “first unit trained CPR and philosophy first police aid.” It was a department to be “service-oriented” and “help community out.” Officers used “citizen assist to record such activi- cards” ties. Worth, Alley, appellant. Richard Fort vehicle, Page got up out of his walked LeGault, DA, Danielle A. Assist. Fort truck, rapping and started on the window Worth, Paul, Austin, Atty., Matthew State’s (haver, to try to who awaken the he could for the State. now see At was a man. first the driver did officer, respond Doug at all. Another

Bird, arrived, kept rapping officers and both yelling OPINION at the at the window and driver up. eventually up pulled wake “He woke WOMACK, J., delivered opened the handle on the the door.” door Court, McCORMICK, P.J., in which disoriented, The driver to be seemed MANSFIELD, KELLER, HOLLAND, Page smelled an odor of alcohol about him. JJ., joined. okay, things The driver said “he was like This case calls on to decide us whether the step that.” One of the officers asked him to and seizure of the Texas vehicle, complied. out of the and the driver peace when a was violated offi- so, truck, As he did which had a standard cer went to the aid of a motorist who was gear, began not in transmission that was public high- unconscious his vehicle rolling backward. way. began investigation an officers I. parties stipulated that the driver DWI. April appellаnt, was the and that at a trial the About 2:00 a.m. on Officer testimony Page Depart- T.A. of the Benbrook Police State would offer additional about investigation to the the State dispatched ment was intersection of “would road of able to elicit in fact for the initial deten- westbound service Southwest tion.” Loop 820 “to assist another and Winscott (as driving intoxicated pellant was while for the offense appellant was indicted ruled), seizure was en- or whether the driving while intoxicated which was trial court crimi- previous suspicion that a

hanced two DWI convictions. based on reasonable 49.09(b). §§ 49.04 & He offi- being See Penal Code committed nal offense was suppress filed motion to evidence any a written of a violation of because presence cers’ of violation of the Defendant’s “because the Code, those Traffic such as section sei- rights against unreasonable search and standing vehicles stopping and regulate that solely zure Tex. Art. Sec. under Const. Ap- of highways. The Court on and streets 19; Crim. Proc. Ann. 10 and and Tex.Code for us on those issues peals made no decision 1.06, 38.21, 1.04, 1.05, Arts. 38.22 and 38.23.” to review. appellant The an earlier motion withdrew Appeals clearly identified the The Court of and which had invoked both state whether, an officer reason- “when issue as the court that constitutions. He told trial individual, safety ably of an that the believes “the Texas and law are the threatened, may perform public, is he or the that are before the Court this issues function, caretaking’ unrelated ‘community motion.” crime, by investigation of to the detection sup trial court denied the motion to The detaining without warrant.” the individual testimony press hearing after the evidence 709. Hulit v. 947 S.W.2d at summarized. stipulations and which we have by jury plead appellant The waived trial for re- that court’s basis Less clear was guilty. of ed The court assessed sentence Appeals The of solving the issue. Court years’ imprisonment, suspended peri for a appellant ex- correctly pointed out that the $1,250. years, fine od of 10 and a of The any complaint under the fed- pressly waived did not the sentence exceed recommendation statutes, pro- and was eral constitution appellant to which the and his Ibid. ceeding the Texas Constitution. attorney agreed. appeal had This is based ap- Appeals also criticized the The Court of appellant’s on the trial court’s denial of the summarizing one pellant erroneously for suppress motion evidence. Second constitution, opinions our on state Appeals affirmed. Hulit Court of state constitu- failing adequately brief his (Tex.App. Worth — Fort Ibid. refused to ground. tional 1997). why appellant” as to argument an “make granted appellant’s review of the We provide more would state constitution ground wеre in error that the lower courts it Id. at n. And it said protection. ‘community caretaking is no “because there jurisprudential “only his state would consider exception require- function’ warrant language Id. at arguments.” 709. This Appellant’s Petition ment under Texas law.” not, could, be construed think should but we Appeals would saying that state constitu- appellant’s not consider II. resolving it ground, and that was tional start what is It is well to make clear jurispru- state case on non-constitutional issue, The trial court and what is not. self-contained, common There is no dence. appellant detained when ruled that the was right to be free from jurisprudence of the law get appellant to out of officers asked the There could search and seizure. unlawful Appeals did not rule The Court of his truck. argument” on jurisprudential not be “state be- question of the detention on when that based on some that seizure granted have not review gan, and we statutory provision. We assume, without decid- it. shall consider We saying Appeals that it was think the Court appellant was when he ing, seized the Texas Constitution would step out his truck. told to arguments were light appellant’s it jurisprudence, and whether, on based point before the Nor is it an issue ar- any other constitutional identified, not invent was would there that we have of seizure guments for him. ap- suspicion to believe that reasonable appellant very exigent made clear in the such probable circumstances or relying solely district court that he was legitimate cause and is not a excep- thus the state requirement. constitution and laws. In court tion to the warrant [HJence arrest, he argument any has narrowed the basis of this search and seizure based there- per the state constitutional on search on is se unreasonable. seizure, as, summarizing argument his (citation omitted). Appellant’s Brief at adopt “This Court exception should as an appellant’s argu- The first sentence to Tex. Const. Art. Section the ‘commu- ment makes three distinct assertions: There nity caretaking’ adopted by function constitution; is a in the Court of Appellant’s below.” Brief exceptions recognized there are to the war- at 3. requirement; rant warrantless searches are finally identify Therefore we can pre- the per they se if unreasonable do not fall within cise issue that us: is before whether Article recognized a exception. We need not decide I, Section 9 of the Texas Constitution was point at this these whether assertions are the by detaining appel- violated the officers’ the holdings Supreme actual in lant without a warrant determine if he Harris, they or whether have been altered aid, needed first seizure which a the officers by jurisprudence past years, 50 performance community made in of a care- even оf a the relevance about function, taking unrelated to the detection or in a searches case about seizures.1 Harris is investigation of crime. about the Fourth Amendment to the United Constitution, “expressly and we have III. Court, analyzing that this when conclude[d] I, Article Section 9 of the Texas Constitu- I, Const., interpreting Art. Tex. will right recognizes tion of the people to be be bound Court decisions secure from all unreasonable seizures or addressing comparable Fourth Amend- n prove right searches. To his under that ment issue.” Heitman violated, section appellant presents was (Tex.Cr.App.1991). To decide argument: correct, appellant’s argument whether the is per Warrantless searches are se unreason we must decide his whether assertions are able fall recognized unless into a ex true for the Texas Constitution. ception requirement. warrant States, argues appellant [Harris v. The the war (1947) requirement L.Ed. ]. S.Ct. It is rant of the Texas Constitution exceptions well settled was was that the to the war violated when he seized without a require requirement rant warrant existence of under circumstances did not probable exigent exception. By cause and an circum fall within an established stance Id. alleged requirement,” to be valid. The “com “the warrant he a means re munity caretaking requires quirement function” no that a seizure authorized a statement, We will note that thе dissent’s "It is the Warrant Clause sent’s] assumes that is prohibi- predominant axiomatic that the Fourth Amendment’s .... clause However, against competing tion searches and perspective 'unreasonable seizures’ is a there 446), premised which, (post is on the Warrant Clause” practice on the Fourth Amendment in if wrong. theory, gained to have not in seems ascen- dancy. Terry As the Court in summarized silent Amendment is as to how the Rea- Ohio, 1, 88 20 L.Ed.2d sonableness Clause the Warrant Clause (1968), year decided one after a case another, Katz interact with nor is it one clear cites], inquiry "the [which the dissents central impor- clause should be considered the most (is) the under the Amendment reason- Fourth tant. the arrest context the manner in [I]n partic- circumstances of the ableness in all the which the Court has governmental per- ular invasion of a citizen’s relationship fairly between two clauses is security. sonal straightforward. other For searches and sei- zures, approaches adopted jurisprudence Both have been in Su- the Court’s has been preme opinions.” pin somewhat more difficult down. Christopher approaches Slobogin, & competing can Charles H. Whitebread Two be discerned (3d 1993). in the 129-30 ed. [like Court's cases. first the dis- Criminal Procedure seizures warrant, Rights prohibiting unreasonable in the absence of which the seizure searches, any application whatever if it were otherwise if it has would be unlawful even case, in no question in this Is there such a reasonable. the statute Legis- violated, of the Texas Constitu- way Section 9 and said act been is, examine the text of every way tion? We shall valid opinion, lature in our decisions, Constitution, prior refer to our 67 Tex. Hughes v. and constitutional.” law, history (1912). of the common consider 333, 361, 149 S.W. Cr. jurisprudence. Fourth Amendment consider clause Section Therefore the warrant indispens- that warrant does not mean Article Section reads: and seizure. A.J. to a valid search able per- shall be secure in their Thomas, Wynen “In- Ann Thomas and Van houses, sons, papers possessions, from Commentary,” 1 Anno- terpretive Vernon’s searches, and all unreasonable seizures Constitution tated Texas place, seize any to search or to any thing, without person or shall issue support give no Historical considerations be, describing nor them as near that the Texas to the contention cause, probable supported by oath without requirement of warrant imposes general or affirmation. law, At common seizure person. to seize Amendment,2 com- Section like (that arrest) is, when person permitted a two, independent The first prises clauses. that probable cause to believe an officer had recognizes right the to free from unrea- be committing, had the or commit- person was sonable seizures or searches. The second ted, felony, person was commit- a or that imposes on clause limits warrants. Neither involving ting a breach of the a misdemeanor requires a warrant or even a war- authorizes presence. peace in officer’s See Carroll say rant. The warrant clause does not when 156-57, States, 267 U.S. issue; issue, may or a warrant must when it (1925). The arrest 69 L.Ed. 543 says only may it when not issue. warrants common law statutes of Texas follow the (“no negative is cast in the warrant ... shall expand except the officer’s pattern, that issue”). even if a met And warrant authority by permitting arrest warrantless requirements of warrant clause minimum in the offi- any for committed misdemeanor cause, affidavit), probable (description, and it in- presence regardless of whether cer’s if the the warrant still would be unlawful and for certain peace,3 a breach of the volves that it authorized were seizure in the that are not committed misdemeanors reading unreasonable. The natural of Sec- presence.4 officer’s support appellant’s not asser- tion does requires a that, tion that a warrant for reason- recognized because of haveWe able seizure. seizure of the search and the similarities constitu provisions in the state and federal decisions, a prior In not found our we have tions, Supreme Court cases United States I, requirement 9. Section warrant authority interpreting mаy permissive be finding statute which re- constitutional a See Heitman the Texas Constitution. peace carriers offi- quired common to allow n. 22. But we do not at 690 shipments inspect their records cers to out, appellant’s citation persuasive the find intoxicating liquors, pointed this Court Supreme law from Fourth Amendment every search that our Constitution “It First, holding subject. only It is searches. inhibits. unreasonable requires a war- Amendment our Bill of that the Fourth that In our 14.01. In this Crim. Proc. art. right be in their See Tex.Code of the secure 2. "The houses, effects, against papers, un- Ameri persons, regard law is like the laws most Texas seizures, be shall not reasonable searches violated, H. Whitebread jurisdictions. See Charles can issue, upon and no Warrants shall Slobogin, Christopher Criminal Procedure cause, supported by probable Oath or affirma- (1993). n.73 tion, describing place be particularly searched, things persons be and the 14.03(a). art. Crim. Proc. See Tex.Code IV. amend. seized.” U.S. Const, is, rant appellant’s says, Fourth, brief a re- finding general requirement quirement searches. The Fourth exceptions, of a warrant to which there are Amendment require does not a warrant for a jurispru- Court has created a person seizure of a that does not involve an dential mare’s nest.9 many There are so intrusion into home. United States v. exceptions Wat- requirement the warrant son, 96 S.Ct. 46 L.Ed.2d most searches and seizures are conducted (1976). York, Payton v. New justified without warrants and under one of Cf. 63 L.Ed.2d 639 exceptions. Such a model of the Fourth Amendment mockery ‍‌‌‌​‌​‌‌​​‌​​​‌​‌‌‌​‌​‌​​‌‌​​​‌‌​‌‌​​​​​​​​​‌‌​​‍makes a supposed requirement, it interferes with a

Second, although the Supreme Court has more fine-tuned competing assessment frequently said that the Fourth Amendment interests at stake.10 For these reasons we imposes general warrant find the Court’s statements about a searches,5 these statements have often been requirement unpersuasive. followed the Court’s statements inquiry central under the Fourth Amend- It is our that Article Section 9 of ment is the reasonableness of the search or require- the Texas Constitution contains no seizure under totality of the circum- ment that a seizure or search be authorized stances.6 It is approach the latter which we warrant, by a a seizure or search find language consistent with the of Article that is otherwise reasonable will not be found Section 9 of the Texas Constitution. inbe violation of that section because it Third, historical research indicates that the was not authorized a warrant. sole, primary, Framers’ if not concern say This is not to that statutes which re- drafting the Fourth Amendment was avoid- quire warrants for seizure or search ing repetition prac- British colonial ignored. say Nor do we that the issuance of issuing tice of general warrants or warrants magistrate may a neutral not based suspicion.7 on bare Such warrants in totality be a factor of circumstances doubly pernicious were only because not judge which we whether a seizure or search authorized privacy intrusions on the of the was reasonable. colonists, they prevented civil redress shielding executing officers from civil

liability.8 Supreme Court cases which have holding We understand that our held that the Fourth Amendment was intend- means that Bill Rights Section of our of impose ed to a warrant are greater protection not does not offer to the indi well founded historical fact. Insofar as vidual than the Fourth Amendment to the Constitution, Section 9 of the Texas may Constitution United States and it offer preventing was directed at protection. the same evil that holding But our is the con the Fourth pre- Amendment was intended to struction is faithful to the Constitution vent, history of the adopted, Fourth Amendment which our have and it is our interpretation meaning. duty informs our interpret indepen- of its that Constitution States, 347, E.g., 5. v. United 389 U.S. constitutional fathers were not concerned Katz about 507, (1967) searches, (opinion S.Ct. 19 L.Ed.2d 576 of overreaching warrantless warrants”). but about Stewart, J.). States, See Johnson v. United 10, 367, (1948). 68 S.Ct. 92 L.Ed. 436 6. 7. dure 10-13 Constitutional is considerable historical Rabinowitz, Reed gin, 20 L.Ed.2d 889 E.g., Terry Charles Whitebread (1950). Criminal Amar, H. (1997); The v. Procedure Interpretation Ohio, (1968). Telford 392 U.S. 70 & Taylor, support See United States v. (3d. Christopher ed Criminal (1969) ("[0]ur Two 1993) ("There ....”); Studies 94 L.Ed. Slobo Proce Akhil 8. 9. police and lower Amendment, quirement Court has sown massive confusion ("By its continued adherence to the warrant re- Amar, Craig Bradley, See Whitebread and supra n. theory, though Mich. courts”). 7, Two Models at 13-16. L. Slobogin, supra Rev. not in 1475 (1985) among fact, n. of the holding there is no violation In our interpretations of federal courts. dent of the of Article VI Unit- Supremacy supra. Clause Heitman Constitution. ed States in this noted As case, interpreters does not mean that the Texas Heitman the final State courts are give Constitution cannot be are though their actions law even state constitution, protection than constitution. the federal under the federal reviewable It means that the Texas Constitution treaties, supreme court of or laws. interpreted independently. will Hulit be See truly highest in terms court state protections Its 947 S.W.2d at 709. a “lower body of law and is not lesser, may greater, or the same as those be in relation to the court” even of the federal constitution.11 It must follow States. mean- rulings (cid:127) Court’s Heitman, repeated we the dictum of the United ing of the Constitution “The constitution our sister court: federal law, but it is free or federal rights; sets the floor for individual or the state constitu- state laws LeCroy ceiling.” constitutions establish princi- violate any way that does not tion Hanlon, (Tex.Sup. ples law. of federal 1986). Court, respect all to our Sister With wrong. metaphor is The state we think its Rotunda, Nowak, D. Nel- J. John E. Ronald are constitutiоn and the federal constitution Law Young, son 1 Treatise on Constitutional legal building; parts of one each is its any We do not make shapes may own Their be structure. differ- rights appellant’s under federal about the ent, may parts. may their Each shield case, appellant has chosen In this law.12 ceiling rights the other does not. any in the federal consti- not to seek shelter may be than the floor of the other. one lower (In metaphor, he our architectural tution. Supremacy Because of the Clause of his facts under the able fit Constitution, United States a defendant who ceiling.) called on us to This case has federal to claim a the entitled give will him constitution decide whether our provision may greater pro- receive not. he wants. does shelter greatest pro- from that than the tection floor that, in ceiling Supremacy Clause means tection that the of the Texas Constitu- terms, persons always will be able give practical him. But not mean tion would that does ceilings greater right. has no to themselves of the Texas Constitution avail very litigants to and their important than federal This is that are lower those State, counsel, naturally re properly Tex. who are and constitution. See Welchek v. 93 (1922) (Article it But does not mean 247 524 Sec- sult-oriented. Cr. S.W. laws, court, faithfully can exclusionary interpreting to state tion 9 rule similar creates equal or protections that in find in them that found Fourth Amendment federal laws. exceed federal prosecutions). Courts, Theory 18 L. saying State Ga. that this and The dissent is mistaken in tional Rev. (1984). 179 as cannot our state constitution court affording protection than the federal consti- distinguished post at As a See 444-445. Maryland, tution. McCulloch v. 12. The dissent cites said, jurist Wheat.) 316, federalism (4 and leader of new Post L.Ed. 579 U.S. question, know, right is not whether state's taxing "The Maryland’s a fed- As we law its guarantee is same as or broader than But was to be unconstitutional. eral bank held counterpart violating Su- construing as federal is we are the state law right question preme is what Court. and seizure law. Texas' search applies appellant's rights it to the guarantee taking away means and how state’s is not may simply turn the same differ- The answer out offers case hand. the Fourth Amendment. ent, rights appellant, law is parallel, The state’s who it would under federal law. right greater. protective It is may prove to than federal whichever be more free to invoke Maryland protective. law may though law and be less the United States The state law also law. which, federally they if char- go were must on to decide taxed banks that case the court tered, law, pay tax was assuming whichever been choose to could claim under federal Linde, lower. A. E Pluribus —Constitu- raised." Hans MEYERS, Justice, police find that concurring.

We officers acted they reasonably apprоached the when vehicle precedents Our and those the United in appellant slumped which the was uncon replete are with ex public highway, scious on a awakened the permissible amples constitutionally police appellant, and asked him out step so depend which intrusions do not for their could see if he was in need of assistance. We reasonableness on a enforcement law motive. hold that Article Section 9 of the Texas Firemen, police officers, public and other of Constitution was not violated their ac lives, buildings pre ficials enter save this, by finding tions. We do that there personal injury, stop vent the destruction community care-taking exception is a to a Arizona, private property. Mincey whether, asking requirement, 385, 392-93, U.S. S.Ct. L.Ed.2d circumstances, totality from the after (1978); Janicek v. S.W.2d 687 public considering private interests (Tex.Crim.App.1982); Bray stake, that are at their action an (Tex.Crim.App.1980). They may unrea possession property private take left in sonable seizure. It was not. public places poses injury if it a threat of judgment of the Court of They causes inconvenience to other citizens. affirmed. may inspect property catalog seized protect safe-keeping

assure them from claims of selves misconduct. South Da McCORMICK, P.J., concurring filed a Opperman, kota v. opinion. (1976); Delgado 49 L.Ed.2d 1000 (Tex.Crim.App. 721-22 J., MEYERS, opinion. сoncurring filed a 1986). They may premises examine private compliance ensure businessmen to J., KELLER, opinion, concurring filed a public safety regulations. health and McCORMICK, P.J., joined. which governmental of these None intrusions is primarily purpose enforcing made for the PRICE, J., concurring filed a opinion, statutes, penal yet all are considered to be MEYERS, J., joined. which purposes reasonable for Fourth Amendment when undertaken a reasonable manner. BAIRD, J., dissenting opinion, filed a Clearly, propriety the constitutional of a OVERSTREET, J., joined. depend upon or seizure does not sus picion legitimate of a crime. role of McCORMICK, Presiding Judge, society government in our includes more concurring. penal just of its stat enforcement utes. join Judge Kel- Court’s concurring opinion. I this ler’s file short right emphasize I would that respond misconception at concurrence to to a free, extraordinary to except be dissenting opinion. in Judge work Baird’s circumstances, from official intrusions into dissenting opinion dissenting my This claims official personal their lives and from inter- opinion position v. Bauder State took the society ruptions their free is movement interpret is that this Court not “free to our government to fundamental our form providing protection.”1 Constitution as less way no of life. circumstances to our Under This is search or seizure considered incorrect.2 should State, (Tex. actually prоvides provision less 1. See Hulit v. 982 S.W.2d constitutional (Baird, J., 1998) citing Cr.App. dissenting) counterpart), protection Bauder than and at State, J., (Tex.Cr.App. concurring) (pointing v. S.W.2d 706-07 (Maloney, that out P.J., 1996) (McCormick, dissenting). dissenting opinion "interprets my Arti- in Bauder being narrower than the cle Section 14 as (McCor- Bauder, jeopardy provision of the Fifth Amend- double ment”). 2. See 921 S.W.2d at 706 fn. mick, P.J., (Texas' dissenting) jeopardy double (1961). Nevertheless, reaffirmed we have the reason for it is such reasonable unless Welchek, along with continuing vitality of importance outweighs it the de social that §I interpret to Article gree prerogative individual embarrassment or inconve our likely to v. Munici Amendment independent nience result. Camara from the Fourth Court, 523, 536-37, interpretation pal independent when an even (1967); Bray, 597 18 L.Ed.2d 930 the Texas to a conclusion that would lead balancing protec- at 769. This is test. S.W.2d confers less bright-line rule for each conceivable is not tion. Richardson applies. But does set of facts to which it language if the (Tex.Crim.App.1993): “Even agents of to a standard be observed all set § identical to that I 9 were Article including law enforcement government, Amendment, must construe that we Fourth responsible for over officers and courts according lights.” own Id. to our language legality seeing of their conduct. immediately fol- quotation That is at 948. holding in explaining our a footnote lowed comments, join Judge I Price’s With these Welchek, §I unlike finding that Article concurring opinion. Amendment, exclu- “embodies no the Fourth Justice, KELLER, concurring. (emphasis n. 3 sionary rule.” Id. at 948 mine). join majority sepa- opinion I but write rately respond to the criticisms advanced opinion concurring in Bauder In his dissenting Judge Judge opinion. Baird’s (Tex.Crim.App.1996), majority Baird that misinter- contends argued double Judge Clinton that Amendment,

prets protection jeopardy provision conferred more in this Fourth Amendment is an issue counterpart. arguing, In so than its federal case, pur- and the does not interpreta- emphasized independent he port interpret Appel- that Amendment. provisions is a tion of state constitutional § solely upon lant has relied Article I street, two-way and that this Court can and court, Appeals, before trial Court of provisions consti- of the state has upon Discretionary Petition for Re- now 9)§I as confer- (specifically tution Article simply view. This is not a Fourth Amend- their federal coun- ring protection less ment case. terparts: fact, attempts are, disagree But the to make this a free dissent We finding Fourth Amendment case. He contends it comes Supreme Court when Supremacy protection this Court violates the Clause in our state constitution. less that, held, instance, § interpret I 9 of the Texas unlike when we Article We have Amendment, § conferring I Article Fourth exclusionary A rule. claim of than the Fourth Amendment the United brooks brought un- illegal Cоnstitution. The dissent’s conten- or seizure § 9 avail the criminal tion flawed for several reasons. Article I would der nothing all it not at were defendant First, recognized its long Pro- of the Code Criminal Article 38.23 constitution ability to the state cedure, exclusionary statutory rule. our providing protection than its federal likely to For this reason defendant held counterpart. Long ago, we under the the Fourth Amendment invoke the Fourth Amendment —con 9—unlike Fourteenth incorporation doctrine of the exclusionary rule. tains no Welchek negate not But that would Amendment. (Tex. 524, 271, 529 247 S.W. 93 Tex.Crim. § Texas I 9 of the that Article the fact Crim.App.1922). doing, we found that so protective no- is less Constitution —and protection than §I 9 conferred including the States Su- body, Welchek, counterpart. 247 S.W. its federal otherwise. can tell this Court preme Court course, preceded the Of Welchek at 528-529. Bauder, (Clinton, conc at J. Fourth application of the Supreme Court’s Ohio, and cita urring)(brackets, quotation marks Mapp v. States in Amendment omitted). 1684, 643, 1081 tions 6 L.Ed.2d 367 U.S. Second, Finally, the dissent confuses two distinct the dissent overlooks the fact that (1) concepts: possession rights most are rights imple- fewer those that must be by request: citizenry upon mented state’s than the United States confers, (2) recognition system adjudication The at work in Tex- that a state constitutional confers as, generally throughout the United counterpart than a federal States, chiefly by array characterized an (1) provision. Concept violates optional rules are liti- (2) Supremacy concept Clause but does gants. This is consistent with an adver- possess not. rights guar- Citizens must process sarial in judge, which the trial by Constitution, anteed the United States referee, institutional enforces rules of con- (and but the state constitution need not tention when asked to do so be) conferring the vehicle for rights. those litigant whose benefit rule exists. Instead, the United States Constitution itself example, kind, For a certain evidence of protections confers upon those a state’s citi- hearsay, might upon such as be excluded zenry. point This is illustrated the Ore- request party aof to the lawsuit. The trial gon Supreme Court in remand its own, judge duty to exclude it on his Supreme from the in Oregon Court decision probably and would fall into error if he did. 667, 2083, v. Kennedy, 456 U.S. 102 S.Ct. objection, Once admitted without such evi- (1982): L.Ed.2d 416 enjoys equal dence a status to that all other admissible evidence. argues, correctly, The diversity necessarily does not mean that state con- (Tex. Marin v. S.W.2d guarantees always stitutional are more (citation omitted). Crim.App.1993) “All but stringent Supreme decisions rights thought the most fundamental are their counterparts. federal A upon by be if party forfeited not insisted guarantee may state’s view of its own in- they belong.” whom Id. 279. Forfeita- stringent, deed be less in which case the rights many ble include of constitutional оri- state remains bound whatever is the gin. Id. And Fourth Amendment claims fall contemporary federal Or it type rule. be within the of claims that are forfeited party timely requests same as federal rule the time of unless a constitu- decision, protections tional Little v. the state court’s which of involved. course (Tex.Crim.App.1988). prevent guarantee does not that the state’s again differ will when the United States in appellant present case could Supreme interpretation Court revises its protections have invoked counterpart. point the is not by request. Having requested Amendment guarantees that a state’s constitutional are 9, however, protection only under Article protective particular appli- more or less appellant any protections forfeited he was cations, but that meant to were entitled to under the Fourth Amendment. genuine guaran- independent remain protections The Fourth Amendment were against govern- tees misuse of the state’s available; simply appellant chose to avail independent powers, truly mental himself of of Texas is not them. State rising falling tides of federal case law obligated protections to offer those same specifics. both in method and its own constitution. Kennedy, State Or. P.2d (Or.1983).1 McCORMICK, P.J., joins erally Kennedy,

1. The cites the dissent Court's decision Kennedy Oregon support position for his quotation L.Ed.2d but the above also shows Supremacy prevents Court, that the interpreting Clause a state from Oregon ‍‌‌‌​‌​‌‌​​‌​​​‌​‌‌‌​‌​‌​​‌‌​​​‌‌​‌‌​​​​​​​​​‌‌​​‍Supreme on remand of that the protec- own in a less constitution case, very did not the dissent’s inter- share tive manner than the United States Constitution. pretation the United States Court’s only nothing Not there the text of that opinion. position, support gen- the dissent's see

441 PRICE, Justice, concurring. its does the tion to citizens than federal constitution, greater get still its citizens only judgment concur of the ma- protection of the federal constitution.2 Of jority. course, protection its gives if less The majority indicates that it is now inter- constitution, citizens does the federal I, § preting Article 9 of the Texas Constitu- for normally must ask then a defendant that to provide protection tion to the citizens get greater protection in order to it. of Texas than does the Fourth Amendment appellant finds that Certainly, Constitution. United States protec- get greater instant case does interpretation, as a matter state court is because he tion federal constitution to interpret free its as it constitution sees fit. it; instead, he (and has has not asked for practical result of this our what protection the state constitu- asked obviously “Sister Court” meant when it stat- Ante, 433-434, 437. What ma- tion. that ed the federal constitution sets the floor however, jority recognize, why fails to rights, for individual and state constitutions 437) fifty For more than appellant has this. done ceiling, establish the see ante at if is that now, years repeatedly gives greater this Court stated interpretation protection its constitution, that the “search and seizure” its than does the federal citizens federalism, gives Texas Constitution citizens Tex- then a matter of its citizens get protection;1 greater the same as the Fourth and to the ex- Amend- ment,3 interpretation gives give greater protec- tent and that them 1.See, Robins, State, e.g., Shopping Cooper California); & v. PruneYard v. Gillett Ctr. v. Robins v. 74, 81, 2040, (Rob 2035, 361, (Tex.Crim.App.1979) 447 U.S. 100 S.Ct. 64 588 S.W.2d erts, 367 (1980) Clinton, (citing Cooper California, J., 741 dissenting, by Phillips L.Ed.2d v. joined 788, 58, State, JJ.) 386 U.S. 87 S.Ct. 17 (citing California, L.Ed.2d 730 Cooper v. v. Milton Johnson, 73, (1967)); Connecticut v. 460 81 U.S. (Tex.Crim.App.1977) 549 & v. S.W.2d 190 Olson 9, 9, 969, n. (1983) State, 103 S.Ct. 974 n. 74 L.Ed.2d 823 (Tex.Crim.App.1972)); 484 S.W.2d 756 opinion) (citing (plurality Shop- 471, State, PruneYard (Tex.App. v. 484 Reeves 969 S.W.2d Robins, Hass, 714, ping Oregon v. v. Hass, Ctr. 420 U.S. 1998, h.) Oregon pet. (citing v. Waco 1215, (1975) Cooper 95 43 S.Ct. L.Ed.2d 570 & v. York); Cooper v. v. & Sibron New California 96, California); Michigan Mosley, v. 423 U.S. 63, State, (Tex.App.-Cor 65 Jones v. 867 S.W.2d 120, 321, 334, (1975) 46 L.Ed.2d 96 S.Ct. 313 1993, ref'd) (citing Cooper pus pet. v. Christi (Brennan, Marshall, J., J.) dissenting, joined State); Engelk & v. State v. Heitman California ing, Hass, (citing Oregon Lego Twomey, v. v. 404 U.S. 213, (Tex.App.-Houston [1st 771 S.W.2d 218 477, 619, (1972) 92 S.Ct. 30 L.Ed.2d 618 & J., 1989) (Dunn, dissenting) (citing City Dist.] Celia, Cooper California); United States v. v. 568 Inc., 283, Castle, Mesquite v. U.S. 455 Aladdin’s 1266, (9th Cir.1977) (citing F.2d n. 1279 9 Coo- 1070, (1982), Oregon 152 v. 102 S.Ct. 71 L.Ed.2d Valenzuela, California); per v. United States v. rev’d, California), Cooper Hass & 817 S.W.2d v. 273, Cir.1975) (9th (citing Cooper 546 275 v. F.2d (Tex.Crim.App.1991). 64 Brisendine, 528, People & 13 v. Cal.3d California 315, (Cal. 1975)); Cal.Rptr. 119 531 P.2d 1099 Examiners, See, e.g., v. Bd. Medical Davis Of Hall, 1229, v. 543 F.2d n. 17 United States 1246 525, (D.N.J.1980) (citing F.Supp. 497 528 Prune- (9th J., Cir.1976) (Duniway, concurring) (citing Cooper Shopping & v. Yаrd Ctr. v. Robins Califor- cert, denied, 1075, Cooper v. California), 429 U.S. 31, nia); State, (Tex. 36 Autran v. 887 S.W.2d 814, (1977); 97 793 S.Ct. 50 L.Ed.2d (citing Crim.App.1994) (plurality opinion) Prune- 1309, Getter, (E.D.Pa. F.Supp. 560 States v. 1314 Robins, Hass, Oregon Shopping v. v. Yard Center 1983) California, (citing Cooper v. PruneYard State); Cooper v. v. & Heitman Kami California Robins, Oregon Shopping v. v. & Ctr. Hass Davis State, 156, (Tex.App.-Dallas v. 694 S.W.2d 159 Examiners), v. Bd. Medical 'd sub nom. aff Of 1985, ref'd) California). Cooper pet. (citing v. Cir.1984), DeMaise, (3rd v. 745 F.2d 49 United States denied, 1109, 786, 469 U.S. 105 rt. ce State, 272, See, (1985); State, e.g., v. 803 S.W.2d 288 Johnson v. Bower L.Ed.2d State, (citing v. 887, (Tex.Crim.App.1990) Eisenhauer (citing (Tex.Crim.App.1989) S.W.2d State, (Tex.Crim.App.1988), propo Cooper 754 S.W.2d 159 California); v. Milton 549 S.W.2d v. 190, 9 of the Texas Constitution (Tex.Crim.App.1977) (citing Oregon sition v. Hass, York, California, of the Federal Con Cooper the Fourth Amendment v. Sibron v. New same”), (1968) aspects the 20 L.Ed.2d stitution are "in all material 88 S.Ct. Hoinville, denied, People v. 191 Colo. 553 P.2d cert. & State, (1991); (Colo.1976)); Gordon v. v. L.Ed.2d 1078 Crittenden (Baird, J., (plurality (Tex.Crim.App.1990) (Tex.Crim.App.1995) dissent opinion) (citing & ing) (citing State Osban 815 S.W.2d 681 Eisenhauer Heitman (Tex.Crim.App.1986), and Shopping 726 S.W.2d 107 (Tex.Crim.App.1991), PruneYard Center

442 protection.4 Clearly, ableness, appellant asked for the court relied several cases to protection only under the Texas Constitution community caretaking duty find that the of because, relying on our case law of more police exception officers is a reasonable fifty years, reasonably he believed that requirement warrant the Texas Con- get he would at least the same amount of Applying stitution.5 Id. at 710-711. that protection granted by as that the federal ease, Appellant’s standard the court deter- constitutiоn, perhaps and even more. To brief, mined that intrusion warrantless “pull rug now out” from appellant Page Officer was reasonable. Id. at 711. say gets and that he than that had, Page Based on the information along granted by may the federal constitution itself observations, Page with his reasonably could present some ques serious constitutional Appellant that prob- assume had a medical Ramos, 616, parte tions. See Ex 977 S.W.2d lem and needed immediate assistance. Id. (Tex.Crim.App.1998) 616-617 (Relying on agree. I, § art. 19 to hold that literal Tex.Const. I, application § 9 states: art. Tex.Code CRIM.Proc. to applicant deny 11.071 would him “due people per- shall be secure in their land”). course the law of the houses, sons, papers possessions, and from Nevertheless, judgment I concur in the searches, all unreasonable seizures or and majority, precedent, based on as well as any place, no warrant to search or to seize ground on the actually granted for review any person thing, shall issue without this In affirming appellant’s Court. convic be, describing near them as nor tion, the Court of that a stop held cause, probable supported by without oath permissible objec when the officer has an or affirmation. tively believing reasonable basis for that the similarly provides The Fourth Amendment posed motorist danger to himself or the right against that have a to be secure public, or was otherwise in need of immedi unreasonable searches seizures. Gener- State, ate assistance. Hulit v. 947 S.W.2d 707, ally, per warrantless searches are se 1997, 711 unrea- (Tex.App. pet. Worth —Fort However, granted). exceptions sonable. Noting that the some to the touchstone of the and, by implication, recognized. Fourth Amendment are Art. I, Constitution, § 9 of the exceptions Texas is reason- cornerstone to these stating State, justified); that "... where the federal and state search was 643, Ward v. 659 S.W.2d provisions (Tex.Crim.App.1983)(relying are in all material as 646 on federal same, pects precedent inventory holding this Court is that an free 'follow the Supreme was in violation of position lead’ neither United States or where Constitutions); State, logical v. 657 equitable Texas Brown S.W.2d appears has a and it basis 797, (plurality opinion) (Tex.Crim.App.1983) 799 our own state interests will also be served ...” (“[For] forty years I, almost this adopting purposes and therefore of Article opted harmony 9, our Constitution in law); § a standard enunciated in federal case opinions interpreting with the State, Court’s 887, v. (Tex.Cr.App. Bower 769 S.W.2d 903 the Fourth Amendment. We shall continue on 1989) (following (plurality opinion) Brown v. path statutorily until as we such time are State, (Tex.Crim.App.1983), 657 S.W.2d 797 otherwise”); constitutionally mandated do holding Art. is to be State, 299, Crowell v. 343, 180 S.W.2d Tex.Crim. opinions interpreting Court’s ‍‌‌‌​‌​‌‌​​‌​​​‌​‌‌‌​‌​‌​​‌‌​​​‌‌​‌‌​​​​​​​​​‌‌​​‍("Art. 9, (Tex.Crim.App.1944) Sec. Amendment), denied, 927, Fourth cert. State, the Constitution of this and the 4th 3266, (1989); S.Ct. 106 L.Ed.2d 611 Eisen are, Amendment to the Federal Constitution State, (Tex. v. hauer 754 S.W.2d 164-165 same”). aspects, all material Crim.App.1988) (plurality opinion) (relying on precedent holding “totality State, ( 4. Heitman v. 815 S.W.2d 681 Tex.Crim. applicable test circumstances” in deter State, (Tex. App.1991); Autran v. 887 S.W.2d 31 mining search, probable cause for a warrantless Crim.App.1994) (plurality opinion). stating today’s opinion that "... is made to stay step with the federal constitutional model determinations”), denied, probable Dombrowski, cause cert. Cady v. (1973); 488 U.S. (1988); L.Ed.2d Brimage 37 L.Ed.2d 706 Osban v. (Tex.Crim.App.1996); McDonald (Tex.Crim.App.1986) (citing (Tex.App. Fort Brown State and Worth S.W.2d 784 relying precedent pet.). on federal that a police involv ally applied actions must meet reasonableness to vehicles and situations the in requirement exceptions Both are rooted ing of the motorists. Constitutions. reasonableness and an under a foundation of Appellant contends without that reason- in standing duty police the and of the role suspicion a able been commit- crime has public general protecting individuals and the committed, ted or about to be police is Wayne R. in non-criminal situations. See validly stop or detain a This motorist. LaFave, §§ 7.4 6.6 & and Seaboh Seizure light community contention is untenable in (3rd ed.1996). expectations of the police role of officers and case, In the was frequency the with police which are involved actions in that the officer’s correct concerning in non-criminal interaction traffic objectively rea- be evaluated under an should regulation investigation and of accidents. Crittenden sonable standard review. See United Court discussed (Tex.Crim.App.1995) 899 S.W.2d frequent the contact which occurs between objective legal evaluating (adopting test for motorists, police noting because stop of Art. police vehicle under basis regulation the extensive of motor vehicles 9). constitutionally stop A or detention is frequency and traffic and the which a objec- permissible when officer has an vehicle can become or in an disabled involved tively believing reasonable basis for there is public highways, police accident officers police an immediate need for assistance. and motorists are often in contact for reasons Thus, case, appropriate in this standard Dombrowski, unrelated to crime. an Page of review as to whether Officer had Thus, police often Ap- objectively believing reasonable basis for what, term, “engage in for want of a better help danger pellant posed needed a and/or may be community caretaking described as public Guzman v. himself de novo. functions, totally detection, divorced from the (Tex.Crim.App.1997). 955 S.W.2d 85 investigation, acquisition of evidence relat- ing to the violation undisputed Page of a criminаl statute.” facts show that acted Id, Indeed, in expect police reasonably approaching Appellant’s citizens officers vehicle patrol highways determining Appellant who was in and streets assist whether them, necessary, Page responded to part duty if to need of assistance. a of the possible protect of a vic- public. dispatch serve and radio heart attack slumped Appellant in a He tim vehicle. saw Brimage, recognized this Court wheel, steering initially over the unre- approved community caretaking exception public highway vehicle on sponsive in a to the warrant of the Texas and engine running. reasonably Page with the slightly United States Constitutions in a dif- situation, inquire con- continued into the ferent, context, analogous known as the emergency might cerned that medical exist. emergency Brimage, doctrine. Viewing objectively actions these under an at 500-501. We determined that the war- standard, Page properly. reasonable acted entry rantless defendant’s house door, opened Page Appellant After by police lawful because information learned strong odor of and then smelled alcohol missing might showed that a woman be locat- investigated properly further. These facts ed inside the defendant’s Id. at 501- house. intrusion demonstrate warrantless held that 503. We based on information by Page objectively was аn reasonable exer- reasonably gathered, police could had community caretaking cise of his function. emergency an conclude that existed because reasons, foregoing For the concur possibility there was a reasonable miss- judgment majority. assistance, injured, ing woman was need possibly located somewhere inside MEYERS, J., joins. Id. at 502-503. house. BAIRD, J., opinion, a.dissenting delivered emergency typically doctrine is most OVERSTREET, joined J. buildings,

applied to such as houses or other whether, community granted private premises. The caretak- review determine We I, § ing exception applicable gener- 9 of the Constitu- to this ease Texas tion, there is “community care-taking made, Authority func- shall under the exception tion” to the requirement.1 States, shall be the addressing appellant’s specific Without Land; Judges every Law of the and the review, ground thereby, any holds: Thing State shall be bound any the Laws Constitution or State to ... Article Section 9 of the Texas Con- Contrary notwithstanding. the stitution was not by violated [the their police this, officers’] actions. We do by VI, also, Art. Mary- cl. 2. See McCulloch finding that there is community care- land, 427, (1819) 4 4 Wheat. L.Ed. 579 taking exception to requirement, a warrant (State with law in conflict Federal law is by whether, but asking totality from the effect). major without are There two Su- circumstances, considering after premacy problems majority with Clause public private and interests are opinion. stake, their action was an unreasonable First, legal consequence it of no is whether seizure. not. is Judges “... on this Court find the Su majority Ante at 437. disregards The preme Court’s statements about a warrant Clause, Supremacy the Fourth Amendment (ante requirement 436), unpersuasive” be Constitution, of the United States and Su- by Supreme pre cause we are bound Court preme precedent to hold there is no interpreting cedent United States Consti , actual warrant under the Texas tution. State 959 S.W.2d Guzman Constitution, 436, only ante at an ethereal (Tex.Cr.App.1998).2 In a unanimous requirement a or seizure be “reason- Stevens, authored Justice the Su able.” This is incorrect. The United States preme explained: Supreme Court has ... Supremacy The Clause forbids state requiring Amendment as that searches and courts to themselves from dissociate feder- warrant, pursuant legal seizures be to a or a disagreement al law with because its exception requirement. to the warrant Be- recognize content the supe- refusal to I, § cause art. 9 of the Texas Constitution authority rior of its source. provide protection must at least the same as Rose, By Through Howlett and Rowlett Fourth Amendment to the United States 356, 371, 2430, 2440, Constitution, including warrants or valid le- L.Ed.2d 332 gal exceptions requirement, to the warrant major prob- Supremacy The second Clause dissent. presented by majority opinion lеm is that

I. because the Fourth Amendment clear there is a Court are Supremacy Clause requirement, warrant the Texas Constitution Supremacy Clause a clear is directive require protection. must at least the same to this Court that we are bound State, Pursuant to Heitman v. interpre- United States its (discussed infra), (Tex.Cr.App.1991) we tation the United States Court: interpret are free to the Texas Constitution Constitution, greater This bestowing protection Laws of the as than its fed- pur- interpret counterpart, United States shall made in eral cannot we made, thereof; protection.3 suance and all affording Treaties less granted ground appellant's 3.Judge disagrees, stating: 1. We re- “The second Keller dissent's long view: flawed this Court has contention is ... recognized ability interpret the state consti failing The Court of find erred providing protection its feder tution as that the trial erred abused court its discre- (Keller, counterpart.” al Ante at J. concur overruling appellant’s tion suppress motions ring). precedent statement she cites As for this there evidence because is no “com- S.W. 93 Tex.Crim. Welchek v. munity care-taking exception to function" (Tex.Cr.App.1922); Richardson v. (Entire record). requirement. and, Judge (Tex.Cr.App.1993); Clin S.W.2d 944 emphasis supplied concurring opinion 2. All unless otherwise indi- ton’s in Bauder v. (Clinton, (Tex.Cr.App.1996) J. cated. protection the Texas exclusively on the lies II. I, § provides argues art. Cоnstitution and Requirement

Warrant protection Fourth Amend- greater than the disagrees con- argument under the ment. Appellant makes no majori- Instead, stop there. The but does not he re- tention Constitution. United States Welckek). interpretation primary goal in the concurring)(also relying But these give is to ascertain proposition that for the citations do not stand apparent voters who intent can the Texas Constitution effect to the this Court providing of the framers adopted than its federal counter- it. intention ”[T]he part. importance little of but constitution —the question being, intend Importantly, prior what did the decided real Welchek was Ohio, language Mapp by adopting constitutional] sub- [the 367 U.S. 81 S.Ct. v. (1961) (Extended the Fourth L.Ed.2d 1081 mitted to them?” exclusionary prosecutions Appeals, to Amendment rule v. Fourteenth Court of Lanford Therefore, also, courts.) 581, was de- 585(Tex.Cr.App.l993). state when Welchek See cided, guarantees (McCormick, had not Fourth Amendment 921 S.W.2d at 708 Bauder v. yet citizenry the Texas in been extended to P.J., dissenting). also, proceedings. Richardson, state court do, See Colora- Judge Keller also cites Wolf 25, 1359, Welchek, 338 U.S. 69 S.Ct. 93 L.Ed. 1782 Richardson, merely cited In we (1949). Accordingly, necessary for the it was early holding, but as an exam- not for its actual exclusionary to have an rule State Constitution pie its own constitu- where this Court Consequently, when Welchekwas decid- either. ed, independent the federal constitution. tion I, provide protection § art. 9 did not less fact, citation of Welchek other than the tenuous Constitution, simply it the United being supra pre-incorporation of (explained as provided the same. States), to the Rich- the Fourth Amendment the Welchek, Subsequent to there has been no need opinion that this Court makes no mention ardson I, having exclusionary § as an to art. as liberty interpret the State constitution is at to exclusionary provided rule because our rule is protection. affording Texans less by Tex.Code Proc. Ann. art. for statute. Crim. Judge Lastly, Judge on Clinton’s Keller relies explain: 38.23. Commentators Welchek in Bauder which cites concurrence not, however, legislature Texas did find interpret our position is free to the this Court straightforward [Welchek] the ing court’s reason- providing protection. Inter- Constitution as palatable policy. to be as a matter of state point estingly, Judge out that Clin- Keller fails explained Dawson’s article on As in Professor Judge by position hotly was contested ton's rule, statutory exclusionary when the Texas McCormick: immediately legislature met in went to it opportunity as an would use this case also work on 'an ambitious effort to undo Welcheck lay good. For at least Heitman to rest for result was article 727a of the [Welchek].’ The generally years followed the this Court Procedure, prede- 1925 Code Criminal Supreme Court in United States lead of the to the current article 38.23. cessor provisions interpreting of our Constitu- similar Paul, Surmounting the Matthew W. Thoms of question that these ... There can be tion Inteipretive Proposed Article 38.23: A Guideline proper constitutional decisions strike Rule, Statutory Exclusionary the Texas all constitu- between the freedoms balance tions, 1994). L.Rev.309, Baylor (Spring federal, to secure are intended provides insight Paul also into Matthew legitimate prosecutorial law enforce- import reasoning for the refusal to Welchek of this The federalization ment interests. juris- exclusionary rule into Texas constitutional procedural criminal and substantive State’s principle prudence: "... foundation for the should, prac- and 1960s law in the 1950s plain language court’s decision was matter, independent preclude any State tical In other words: "... Constitution." Ibid. Texas analysis point cannot ... This provision in the Texas Constitution there is no overemphasized. and the other This Court unlawfully provides seized evidence is the 1950s and in the nation since state courts However, in criminal trials.” Ibid. inadmissible Supreme fed- have had follow 1960s § warrants. Art. same cannot be said for Heitman, in ef- decisions. eral constitutional fect, provides: Supreme disagree us with allows persons, secure in their shall be The houses, protection" finding for crimi- "more Court in possessions, all un- papers and from However, our State Constitution. searches, nals under and no war- seizures or reasonable Supreme disagree are not we any any person place, or to seize to search rant free protection" finding "less it comes to Court when describing thing, them shall issue without pro- cause, than that be, in our Constitution criminals probable nor without near as for vided by Constitution. the Federal by supported affirmation. oath or (McCor- Therefore, I, 9, face, 921 S.W.2d at 706-707 clearly Bauder intends on its art. P.J., Judge mick, dissenting). Surprisingly, has ex- and this Court a warrant today. joins majority McCormick plained ty oversteps its bounds interpreting Supreme art. Court’s statements about a I, § 9 of the Texas affording Constitution as requirement unpersuasive. than its counterpart: Federal objection- Ante at language 435-436. This holding is our that Article Section 9 many able on levels. of the Texas Constitution contains no re- quirement that a seizure or search be au- A. warrant, thorized and that a seizure First, is axiomatic that the Fourth or search that is otherwise reasonable will prohibition against Amendment’s unreason not be found to be violation of that premised able searches and seizures section because it authorized Warrant Clause. Almeida-Sanchez v. Unit warrant. States, ed 413 U.S. 93 S.Ct. Ante at 436. The is based on the (1973); States, L.Ed.2d 596 Katz majority’s mischaracterization of the Fourth 347, 357, 389 U.S. 88 S.Ct. Despite Amendment. the Warrant Clause of (1967); and, L.Ed.2d Camara v. Munici Amendment and Court, pal 528 — precedent, contends: 1727, 1730, (1967).4 pre 18 L.Ed.2d 930 As [United States] Court cases position, majori cedent for maverick which have held that the Fourth Amend- law, ty relies not on the on a of but series law ment was impose intended to a warrant review articles and academic treatises which requirement are not well founded histor- may precedential be but instructive have I, ical fact. Insofar as Article Section 9 of authority.5 the Texas Constitution was directed at

preventing the same evil that the Fourth

Amendment prevent, was intended to the B. history of the Fourth Amendment informs majority -wrongly interprets Because the interpretation our its meaning. of Amendment, the Fourth its conclusions are ... finding general a requirement of fatally holding, flawed. As a basis for its the a exceptions, warrant which there are majority proposes: the Supreme juris- created a [ijnsofar I, ... as Article Section of the prudential mare’s ‍‌‌‌​‌​‌‌​​‌​​​‌​‌‌‌​‌​‌​​‌‌​​​‌‌​‌‌​​​​​​​​​‌‌​​‍nest. There are so pre- Texas Constitution was directed at many exceptions requirement to the that venting the same evil that the Fourth most searches and seizures are conduct- prevent, Amendment was intended ed justified without warrants and history of the Fourth Amendment informs exceptions. one of the Such a model of I, interpretation § our of its [art. 9] the Fourth Amendment not makes meaning. mockery supposed of requirement,

it interferes with a more fine-tuned Ante at The as- 435-436. fault this conclusion competing sessment of the majority’s interests lies in interpretation at of Fourth stake. For history.6 these reasons we majority the Amendment The refers to find majority Judge majority 4. The classifies this statement "... Baird that the contends "wrong.” authority at 1. Amendment, Ante 434 n. The relied misinterprets the Fourth Ohio, upon Terry is this classification case, Fourth is issue Amendment not an in this (1968). L.Ed.2d majority purport does not However, Teny inapplicable merely because it that Amendment." "stop exception established a and frisk" to the (Keller, concurring). Ante at 439 J. can How requirement. Judge Keller such make a statement when the majority says: history "... of the Fourth See, 435-436, 2, 6, 7, citing 5. Ante at fn. & 8 Amar, interpretation [art. Amendment informs our itsof Akhil Reed THE CONSTITUTION AND I, (1997); Clearly § meaning." 9] Ante at 435-436. CRIMINAL PROCEDURE 10-13 Telford Taylor, majority premises position regarding TWO STUDIES IN CONSTITUTIONAL its art (1969); and, Craig INTERPRETATION41 Brad- interpretation 9 on its of the Fourth Amend- Amendment, ley, Two Models the Fourth of ment: (1985). MICH.L.REV. requirement ... there Is such in Article requirement] [warrant Section 9 of the Texas statement, regard Judge In to this Keller’s con- posits: currence tempted to Rights. Judges Bill of of framers of the Fourth the intent formulating way” Amendment, other when stating, “... “look the historical research hamper dis- rules that primary, Fourth Amendment if not indicates that the Framers’ In criminals. covery apprehension of sole, drafting Fourth Amend- concern in judges should not spite temptation, British avoiding repetition ment was judgments to Amar’s rely upon issuing general practice of warrants colonial Professor right at Ante, narrow the substantive suspicion.” or warrants based bare Amar’s Fourth Amendment. core majority then contends that history the Amend- statements on “Supreme which have held Court cases neglect historic events several ment to im- was intended the Fourth Amendment pro- He legal his conclusions. undermine pose are not well a warrant Ibid, the Amend- interpretation of a facile vides majori- founded in historical fact.” omitted). (footnotes ment’s text legal posi- ty relies on commentaries why commen- explain Maclin, Complexity those tion but fails Tracey Review, are opposing are correct and views taries A Historical Amendment: offers these incorrect. While B.U.L.Rev. 973-74 fact, my indepen- commentaries as historical fact, have found the other historians myriad opposing dent research discovers require a specifically framers to intent of the specifically criti- viewpoints, some which the work William Specifically, warrant. majority’s sources. cize the Cuddihy dispels many of Amar’s theories. majority’s Id., Significantly, reliance on 934-939. Justice B.U.L.Rev. suspect. Cuddihy’s Amar is at 436 n. Akhil Reed Ante work as “one O’Connor described legal analyses origi commented that 6. One scholar has exhaustive of the most analyses are not meaning Amar’s Fourth Amendment Amendment ever nal of the Fourth incomplete only partisan and one-sided. School District undertaken.” Vernonia 47J 2386, Cloud, 669, Searching Through History: 646, Morgan Acton, 115 S.Ct. 515 U.S. (1995)(O’Connor, J., History, U. Chi. L.Rev. Searching 2398, 63 L.Ed.2d 564 132 (1996). 1707, legal Another com- Cuddihy, 1739-1743 The Fourth dissenting)(citing W. Meaning Original Origins mentator stated: Amendment: (1990)(Ph.D. Grad some, at Claremont dissertation For the Fourth Amendment not School)).7 provisions of the uate “respectable” one of the particularly general warrant were es of the Weshall the text of the Constitution? Constitution, examine decisions, generation, prior the Framers’ refer our con- vivid in the minds of law, history other of the and con- the Framers viewed sider the common and not because jurisprudence. general any sider the Fourth Amendment less unreason- searches kinds general at 435. was Ante "Prohibition of the able. general larger extinguish part scheme to understanding of the war- 7. Justice O’Connor’s categorically.” searches relying preeminent requirement, ex- rant important, indication there is no More Amendment, history pert on the Fourth opposi- that the Framers' historical materials faulty major- premise than the far different solely general from stemmed tion to searches ity: single they out officials to allowed the fact reasons, arbitrary and thus individuals for Amend- the Framers of the Fourth ... what simply them reasonable officials could render strongly opposed, limited ex- ment most every by making to extend their search to sure is, ..., general ceptions searches—that were every person given in a in a area or house warrant, general by by writ of assis- searches although gener- contrary, given group. On the statute, tance, by any other similar broad arbitrary, they typically were al searches were Although, ironically, authority_ such war- searches, invariably general so. Some rants, writs, required typically in- and statutes arguably example, evenhanded were requirements suspicion, ... such dividualized Indeed, Cuddihy’s de- kind. "door-to-door” largely subjective and unenforceable. were suggests scriptions of a few blanket searches authority Accordingly, various forms of these may more worri- have been considered unrestrained,” "virtually practice led in general sure, typical search. some than "general," To be searches ... hence all, Clause, Perhaps telling in the as reflected Amendment, most Warrant Fourth Clause, way particular Warrant by general text of the only searches prohibits name gener- to curb the abuses of only Framers chose the abus- because But that warrants. 448 cannot, I also,

While my this late hour of Oregon Kennedy, 730 See 456 667, tenure on Court, 681, 2092, this present honorable a U.S. 72 complete (1982) (state discussion of the L.Ed.2d 428 intent of the fram- constitutions drafting provide ers when can Amendment, rights additional for their citi zens); Shopping cannot PruneYard Center v. Rob go unchallenged let the bold asser- ins, 2035, 2040, 100 proffered by tions S.Ct. majority. majori- (1980) (state sovereign L.Ed.2d 741 right ty chooses to rely plain on the language adopt own its Constitution individual Amendment, of the Fourth Supreme Court expansive liberties more than those con precedent, precedent. Instead, our own Constitution); and, ferred the Federal partisan articles, it relies on never acknowl- (Tex. Hanlon, LeCroy v. 713 S.W.2d edges contrary positions, and deny works to 1986)(the federal constitution sets the floor rights basic civil to the inhabitants Texas. rights; for individual es constitutions ceiling). tablish the We held the Texas Con III. may greater protection stitution afford than Heitman v. State — New Federalism Heitman, counterpart. federal S.W.2d at 690.8 State, presented Heitman v. we were question I, with the § of whether art. majority completely misstates Heit- provided greater protection than the man standing proposition Fourth for the that this explained § Amendment. We can traditionally providing art. 9 as protection this Court had treated art. 9 the than the same Fourth Amendment: Heitman, as the Fourth Amendment. As the noted State, S.W.2d at citing 682-88 case, Gordon v. Heitman does not mean that S.W.2d (Tex.Cr.App.1990)(plurality); Texas be Constitution cannot State, (Tex.Cr. Johnson v. 803 S.W.2d give App.1990); Bower v. 769 S.W.2d 887 constitution. means that the Texas (Tex.Cr.App.1989) (plurality), interpreted indepen- cert. be denied will dently. See 106 L.Ed.2d Hulit 611; lesser, protections great- 709. Its Eisenhauer v. er, (Tex.Cr.App.1988) (plurality); the same as those of the federal Brown v. State, constitution. (Tex.Cr.App.1983) 657 S.W.2d 797 (Opinion on Remand from the United States precedent Ante at 436. As for this state- Court); State, Supreme and Crowell v. 147 ment, exclusively relies on the Tex.Cr.R. 180 S.W.2d 343 Hulit, lower court’s in 947 S.W.2d at Heitmаn Court announced that under our 709. Not is this statement inaccurate system of reject federalism we “are to free and violative of the Supremacy Federal holdings long federal as as state action Clause, does it reprehensible highest is for the below the pro minimum standards Court in the to interpret Texas our State fall vided protections.” constitutional gives constitution a manner Texans which Id., citing Cooper v. rights Cali- less than the But rest nation. fornia, underpinnings sug- U.S. 17 L.Ed.2d neither nor its Heitman sea, by implication, general al all warrants —and for were searches at where warrants im- impose practical required, Congress searches—was not to a novel "even- and thus not requirement; searching only handedness” it was to retain the nonetheless limited officials to suspicion requirement ships individualized con- those and vessels “in [a collector] warrant, typical general any goods, tained in the suspect to shall have to wares reason requirement meaningful subject make that forceable, duty and en- or merchandise to shall be con- instance, by raising required for cealed.” Id., 669-71, suspicion objective level of individualized to 515 U.S. at 115 S.Ct. at 2398-99. Const., So, probable cause. See Arndt. Heitman, example, Congress greater protec when the we same Since have found State, proposed the Fourth Amendment authorized tion on two occasions. Autran duty goods (Tex.Cr.App.1994) oрinion); (plurality collectors to search for concealed S.W.2d duties, and, (Tex. subject import specific warrants Richardson v. 865 S.W.2d 944 land; required Cr.App.1993). were but even searches provi- two that the who assert Texas court of those gest interpret is free to this Court I, § Fourth Amend- 9 and the providing protection [art. less sions as Constitution interests diseernibly different rights counterpart. ment] address than its Federal fewer be- Heitman, reality, any line of demarcation ... clearly ex- contrary, [i]n To the we provisions constitutional tween the two plained: rights and protection of individual terms recognize constitutions we that state authority is upon governmental restrictions guaran- rights cannot subtract from Federal- explaining the New illusory.”). In Constitution, but teed the United States ism, court opined that state opponents provide rights to their additional can Court’s unhappy with judges, citizens. decisions defendants, rights limiting decisions protections represent the minimum protections invoke state would ‘The which a state must afford citizens. in conflict to reach alternate results in order floor for indi- federal constitution sets the Supreme Court’s decisions. with the rights; state constitutions establish vidual ceiling.’ 9 of our Today, by “that Section (internal Heitman, citation 815 S.W.2d at 690 protec- greater Rights Bill does not offer omitted). also, State, 898 See Smith v. than the Fourth individual tion (Tex.Cr.App.1995); Autran S.W.2d United States Constitu- Amendment tion, protection,” ante offer less and, opinion); (Tex.Cr.App.1994)(plurality 437, majority in a New engaging is “new” (Tex.Cr. 865 S.W.2d 944 Richardson by diminishing our state constitu- Federalism fact, App.1993). my research does Heit- guarantees. The same critics of tional single reveal a ease where this Court has outraged equally man should be providing our construed majority’s constitu- attempt to protection rights or fewer than the United protections affording tional majority fails to Constitution. The counterpart, in to avoid its federal order majori cite a ease. What was clear to providing such precedent. If Supreme Court today’s ty of in Heitman is lost on this Court state constitution rights more under our majority. rights activism, surely judicial providing less The condemna- realm. that same within

IV. the New by Herasimehuk over proffered tion applies equal force to Federalism The “new” New Federalism today: history in American “The term ‘federalism’ require judges should restraint Judicial traditionally coordi law referred values and forgo legislating their own relationship power nate and distribution their rights into of fundamental views states and the nation between the individual judge ... No constitutions state’s Herasimehuk, government.” Cathleen al “knight-errant” “philosopher-king” Legislation Judicial The New Federalism: his legislating with a mandate armed Appeals, 68 by the Texas Court Criminal through creative constitutional own values (1990).9 this When Tex.L.Rev. omitted). (footnotes interpretation, Heitman, cries of “New Feder issued heard, as were accusations alism” were Herasimehuk, Tex.L.Rev. at 1518. judges the work of activist Heitman was expand V. using the state constitution See, e.g. Herasim protections. constitutional Conclusion and, chuk, W. Paul and supra; Matthew the fed- year students learn that Horn, First law Jeffrey Heitman v. State: Van individual floor for Unanswered, constitution sets the Mary’s eral 23 St. Question Left establish rights constitutions and state “the ball is (1992)(stating that L.J. 929 opinion). 1994)(plurality (Tex.Cr.App. Federalism complete discussion New For 9. Autran see Const, See, VI, 2; ceiling. art. cl.

Heitman, and, 690; LeCroy 815 S.W.2d at

Hanlon, By S.W.2d at art.

I, § require 9 does not that a warrant, majori

seizure authorized

ty longer of this Court no reaches for the ceiling stoops but instead

dig a constitutional basement wherein the

Texas Constitution is housed floor below the

of the Fourth Amendment. Texans should protections enjoyed have less than those of the other 49 states.

Believing has not failed

appellant, every Texas, person I am

duty lodge bound to this dissent.

OVERSTREET, J., joins opinion. Gibson, Adkins, L.L.P., Wayne Ochsner & NATIONAL ATHLETIC COLLEGIATE Sturdivant, Amarillo, Lafferty, P. Todd 0. ASSOCIATION and Texas Tech appellants. University, Appellants, Carr, Fouts, Wolfe, L.L.P., Hunt & Donald Bellair, Hunt, Amarillo, Gary ap- M. M. pellee. Casey ‍‌‌‌​‌​‌‌​​‌​​​‌​‌‌‌​‌​‌​​‌‌​​​‌‌​‌‌​​​​​​​​​‌‌​​‍JONES, Appellee. Joel C.J., BOYD, Before and DODSON and

No. 07-96-0424-CV. REAVIS, JJ. Texas, Court of DODSON, Amarillo. Justice. Collegiate The National Athletic Associa-

Feb. (the NCAA) appeals tion trial from the injunction temporary court’s rendered Joel (Jones) Casey declaratory judgment Jones’s damage brought against action (Tech). University NCAA and Texas Tech injunction appeal is set aside and the dismissed moot.

The record shows that the NCAA is voluntary, unincorporated association col- universities, leges conferences, affiliated associations and other institu- educational public university tions. Tech is a member institution the NCAA. Jones a student Tech and a member of its foot-

Case Details

Case Name: Hulit v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 16, 1998

Citation: 982 S.W.2d 431

Docket Number: 877-97

Court Abbreviation: Tex. Crim. App.