Johnson v. State

illogical the recognized for trial it was II. We using a certain stan- court to admit evidence provide guidance this is- Our statutes on admissibility, then to for but instruct dard 38.22, § provides pertinent sue. Article jury same the not to consider the evidence part: by a different jury unless the was convinced question In all as cases where a is raised Id. The standard that it was admissible. of a of an the voluntariness statement the instant ease. reasoning applies to same accused, indepen- court must make an the jury reasons, as finding dent in the absence the above I Accordingly, for the the statement was made under whether “beyond find that a reasonable doubt” would If the has voluntary admissibility conditions. statement aof confes- is the standard for voluntarily been to have been made found sion. as a matter of law and held admissible hearing

fact court in a in the ab- jury, the court an

sence of the must enter stating

order as its conclusion to whether made, voluntarily

or not the statement was finding by

.... Upon judge as a fact that the

matter of law and statement made, voluntarily pertaining was evidence JOHNSON, Lloyd Appellant, Ricardo may such matter submitted to jury and it shall be instructed that unless beyond a jury believes Texas, Appellee. The STATE of voluntarily doubt was that the statement made, jury shall consider such No. 1340-93. any purpose.... statement for Texas, Court Criminal 38.22, § Tex. art. 6. Code Crim.Proc.Ann. En Banc. always required

This article has that if the court finds the accused’s to be statement 15, Nov. 1995. voluntary, upon introduction evidence at 15, Rehearing Denied Nov. fact, trial jury before the trier of must be instructed it can consider the statement beyond

if it believes a reasonable doubt that 1965, voluntarily.2

it was made See Acts 2, 317, 722, p.

59th Leg., vol. ch. amended 659, Leg., p.

Acts 60th ch. 348, § Leg., p. Acts 65th ch. applied

I juries find standard in-

structive on this issue based the same

reasoning this used in Harrell (Tex.Crim.App.1994).

issue in Harrell concerned burden of

proof admissibility of extraneous offense

evidence. Id. at 155. We noted that admissibility by the trial court

standard for requirement with the that a consistent jury

trial not to consider court instruct unless it believes

extraneous offense evidence

beyond doubt the defen- a reasonable

dant offense. committed such Id. 38.22, (1896) jury. C.C.P. predecessors See Article 2. The to Article 6 do 1907; They require pre-trial Article C.C.P. amended (1925). Acts of raise this issue. neither specific hearing nor on voluntariness instructions Nation, Dallas, appellant. for John D. Abbott, Atty., Dal-' Dist. Robert P. Assist. Huttash, Austin, las, Atty., State’s Robert A. for State. PETITION APPELLANT’S

OPINION ON REVIEW FOR DISCRETIONARY WHITE, Judge. prior opinions

Our withdrawn. of appellant The trial court convicted possession aggravated of cocaine offense of See TEX. with the intent deliver. ANN. HEALTH SAFETY CODE & (c). 481.112(a) 481.102(3)(D), § On & submission, original this Court vacated the re judgment Appeals Court of of manded instant to the Court cause suppres Appeals appellant’s “to reconsider totality argument by reviewing sion arrest in appellant’s the circumstances Hodari, v. D.”1 Johnson light of California v. (Tex.Cr.App. at 127 1992). remand, Appeals On Court complied order Sit of this Court. banc, ting of Appeals en the Court affirmed v. conviction. Johnson appellant’s 1993). (Tex.App. This S.W.2d 708 — Dallas granted appellant’s petition for review. review, ground appellant for In his asserts: Appeals following

“The erred Hodari, D., holding in California 111 S.Ct. 1547 L.Ed.2d [499 621] [113 U.S. (1991) holding 690] meaning Article within the seized when 9 of the Texas Constitution either him officers confronted complex breezeway apartment pursued appellant.” officers when the Court of We will affirm the decision of Appeals. Hodari, L.Ed.2d 690 California

I. The decision Appeals of the Court of United States Constitution. Because we so, however, can do does not mean that we Appellant argued Ap- before the Court of precedent should do so. existing State peals that he was “stopped” “detained” or before the Fourth Amendment was made under TEX.CONST. Art. either when applicable to support the states does not arresting initially officers confronted him granting greater rights defendants breezeway or when the officers chased one, article they section nine than current- him and made a authority by shout- ly enjoy under the Fourth Amendment.”3 ing stop. at him to opinion,2 its the Dallas (emphasis supplied original.) Court of explained it understood “a seizure, one, of article section S.W.2d, Johnson nine, to occur police when the have intruded Though Heitman, yielding precedent to on the freedom of a momentarily citizen Appeals I, the Court of § held that Art. 9 detaining person. the approach The mere of provide does not protection appel- more police officers that does not interfere with lant than does the Fourth Amendment. one’s freedom of movement only and causes I, They § believed Art. does not show “an minimal inconvenience and loss of time is not provide greater intent to a protec-. defendant State, a S.W.2d, seizure.” Johnson v. tion under the state constitution than that 715; and cases cited therein. provided under the Fourth Amendment.

In applying holding facts, to See interp. TEX.CONST. Art. com- (Vernon 1984) (“[T]he Appeals when, Court of mentary found language of I, Article Section 9 of the Texas Constitution “the officers walked around the corner into substantially the same as that used the. the breezeway, they did nothing that would Amendment.”).” [the Fourth] Johnson v. lead a person reasonable innocent to be- State, S.W.2d, 719-720; and sources lieve that he was not free to leave. Their cited therein. presence mere in this case did not consti- tute a authority. The officers’ Yet, Heitman, under Appeals the Court of presence way mere in no intruded on recognized interpretations it could look to of by momentarily Johnson’s freedom detain- advisory the Fourth Amendment Thus, ing him. Johnson was not seized I, interpreting Art. and not as control- under the Fourth Amendment or article ling authority. Where Court’s one, nine, section when the officers made interpretation of the Fourth Amendment presence their walking known into the public policy conflicts with Texas or our own breezeway and within the view of Johnson interpretations Constitution, of the Texas and the other two men.” precedent long Texas controls so as it does State, S.W.2d, Johnson v. not rights at 716. call for a restriction of provid- ed for a defendant under the Federal Consti- Appeals Court of then faced the issue Appeals sought tution. The Court of then to whether, 9,§ under appellant Art. underlying “examine the rationale the Su- seized when the officers showed their author- preme Court’s decision in Hodari and deter- ity by chasing appellant him shouting mine whether its conclusion is consistent stop. to Appeals began by The Court of precedent public poli- with Texas and sound analyzing pro- Art. to determine if it S.W.2d, cy.” Johnson v. at 720- protection vides more than Fourth Amendment on this issue: clearly gives authority “Heitman us Applying the definition of “seizure” in Ho- grant greater rights defendants under the dari to the text of Art. of Texas Appeals Constitution than afforded furthering that a determined interpretation of encouraging compliance po- of with a parties dispute 2. The (Tex.Cr.App. in the instant case do not 3. Heitman v. accuracy Appeals’ 1991). of the Court of account of background appellant. the factual of arrest Johnson, S.W.2d, See at 712-713. We will opinion. not recount those facts in this continued to flee authority in- When will not lice officer’s show officers, offi Appeals found the the Court fringe upon free from a citizen’s be on a effect cers’ did have coercive Ap- actions seizure. The Court an unreasonable Appeals “the appellant. The Court of held fleeing suspect stopped if a peals found that him ordering pursuit of Johnson officers’ a result the officer’s show of “as a of John stop not constitute seizure stop, then he did physically if he is forced to one, one, John son article section nine.” section be “seized” under article will S.W.2d, at 723-724. son v. ignore the long nine. As as he chooses to he will not be officer’s show Appeals Lastly, the Court of decided permitted claim the show complied he with appellant was seized when liberty.” interfered with his Johnson drawn, orders, guns their the officers’ with S.W.2d, drop stop. his “Clear- gun for him ly, a innocent would The Court of reasoned always leave two officers able to contest lawfulness of feel free to when will be court, stop.... him to always guns will drawn order the seizure the State required proving complied with the officers’ to meet the burden of When Johnson stopped, prong of the beyond orders and the second reasonable doubt had was, investigate. for was met and he suspicion reasonable to test seizure moment, Fourth under both the seized suspect “Requiring yield that a show one, section nine.” Amendment and article authority physically stopped by of or be Appeals appellant The of also found Court police being the before deemed “seized” and, dropped gun was when he the seized one, nine the article section serves Royal simultaneously, bag the con- Crown by encouraging compliance interest drugs. taining the police sacrificing the orders without suspect’s rights challenge constitutional Appeals The concluded that when of Court those the lawfulness of orders invoke appellant possession of the saw officers remedy.” statutory exclusionary handgun dropped response he it before State, S.W.2d, orders, “they probable cause to v. at 728. The their had Johnson unlawfully carrying a adopted of arrest for Appeals Court the conclusion Johnson The weapon they the time seized him.” reached in Hodari D. Court subsequent Appeals held the search to determine when a citizen is seized under Court of I, Royal bag § war- Art. 9. was “lawful Crown to a lawful arrest.” search incident rantless Appeals applied The Court of then this State, S.W.2d, at 724. Johnson v. ruling to the facts of instant case. When appellant the officers chased shouted Dispute this Before Court II. stop, him to their actions “constituted show above, has asked As that would lead a reasonable noted erred person Appeals us to if the innocent that he was not decide believe Hodari, D.4 in appellant complied on v. Had with when it relied free leave.” California Art. deciding appellant not seized under Appeals this show of Court of I, § police he when officers confronted could claim to have been seized. “either believed Rose, (Tex.App.— Appeals In S.W.2d 911 Courts of have relied State v. 4. Several other Hodari, 1992), Tyler Appeals to decide when a D. this the Court of resolved California cases, I, has In these seizure occurred. most of opinion, grounds. In issue Art. their on Appeals resolve Courts of were asked to these opinion Appeals stated that our grounds. disputes on Fourth Amendment See cause, appeal and abated the the instant which State, (Tex.App Taylor v. 820 S.W.2d 392 . —Hous Ap the cause to the Dallas Court remanded 1991); [14th Dist.] ton Mitchell v. reconsideration, peals led them to believe 1992), (Tex.App. Dist.] [1st —Houston "Hodari, weighing followed in should be refused; review Johnson 838 S.W.2d 906 challenges under the State and Federal both refused; 1992), (Tex.App. Corpus Christi review — Rose, S.W.2d, at Constitutions.” State v. (Tex.App.— Prodhomme v. S.W.2d 494 1992); Lookingbill 1993). (Tex.App. Corpus Christi — him breezeway in the apartment com- find that a place seizure has taken at the plex or pursued when appel- officers time a facing a show of lant.” authority believes he or she is not free to (the pre-Hodari, leave D. definition of sei- Appellant opinion attacks the of the Court zure) or, instead, at the time the has Appeals “inadequately as an reasoned re- actually yielded to the show of sponse important issues raised” in his (the physically Hodari, been yield forced to appeal. Appellant alleges Ap- the Court of Amendment). D. interpretation of the Fourth peals inadvertently “fused” arrests and in- so, In doing this Court will have decided vestigatory purposes detentions for of consti- whether seizure is to be defined it was analysis. tutional In this fusion of arrests under both the Fourth Amendment and Art. and investigatory detentions, appellant as- I, Hodari, D., § prior thereby maintain- serts the Court of moved mis- ing people for the of Texas a broader defini- occurring conduct prior to the time of an tion of seizure under Art. or will actual protection seizure outside the of Art. I, § seizure be defined under Art. 9 as the § 9. Hodari, Supreme Court in D. defined it un- case, appellant argues his arresting der the Fourth Today, Amendment. we articulate, officers lacked an reasonable sus- choose the interpretation latter of Art. picion to detain him for of investi- gation, probable and lacked the cause to ar- A. rest him at point they when confronted A plain reading comparison him in the breezeway. Appellant implies he language of the Fourth Amendment and was barred from prevailing upon argu- Art. 9 reveals no substantive difference. ment appeal by on direct Ap- Court of the, The Fourth protects Amendment peals’ ruling that he was not seized until he acquiesced arresting “right to the people officers’ of the to be secure in their authority. persons, houses, papers, effects, and against unreasonable searches and sei- Appellant urges this court to overrule the zures.” Appeals. brief, Court of In requests his he I, § protects Art. 9 rights this also a citizen’s Court not redefine seizure under Texas be, way law in the he saw the Court redefine seizure under the Fourth Amend- houses, in persons, papers “secure and Appellant ment. contends this Court should possessions, from all unreasonable seizures let the law prior stand as written or searches ...” Hodari, Court’s in decision D.: that A interpretation literal of the text of the a defendant has been seized before he or she I, Fourth § Amendment and Art. 9 reveals physically is if per- restrained a reasonable objective their fair meaning. The position son their they would believe were I, § Fourth Amendment and Art. 9 both appellant, not free to leave. To this is a (freedom protect the same from unrea- critical distinction argues because he that a seizures) sonable searches and to the same would not believe he was degree (persons, houses, papers, and ef- free to leave at the was con- time fects/possessions).5 However, this Court de- fronted officers in the breeze- cided Heitman that decisions of the Su- way apartment of the complex they or when preme interpreting Court the Fourth pursued him. binding Amendment are Texas I, interpretations § courts in their of Art. 9.

III. The definition of “seizure” State, S.W.2d, Heitman v. 815 at 690. Con- I, § under Art. 9. sequently, in the instant case the Court of case, In the instant this Court must and this Court have undertaken the requires I, resolve Art. 9 defining § whether us to task of “seizure” under Art. 9. Appeals comparison 5. We find the Court of to be well researched and reasoned. Johnson v. I, State, analysis S.W.2d, § of the Fourth Amendment and Art. 864 at 716-720. In provisions. in the two similarities be- dispute, a distinction the instant Eisenhauer, any similarity found Court of seizure under definitions

tween the merely a I, appears to be § the two Art. 9 would between Amendment and Fourth Eisenhauer interpretation historical fact. a literal product coincidence not be S.W.2d, State, In Autran v. language in the two comparison (Tex.Cr.App.1994), Art. between A valid distinction provisions. underly could an I, Amendment there had to be plurality § and the Fourth believed provisions of the histori- to be differ from a combination two ing result intent for the I, analysis § 9 and a of Art. would cal constitutional narrow construction because a ent policy is better I, Texas Texas specifically, § decision that and the Art. leave diverging path chosen from the Constitution, independent served generally, void Hodari, S.W.2d, meaning.6 Autran v. apply are not bound We Hodari, impossible to dis- practically holding in D. to our inter It would be I, alone, § Art. language, this Court is

pretation of Art. cern framed that by Supreme interpretations of the citizens who the intent bound if inter is little evidence provision. Constitution when There the United States I, § 9. Framers of Art. provisions of the Texas Constitution. preting the intent S.W.2d, Heitman, S.W.2d, we at 38. We at 690. Nor are Autran v. language of impression can that the obliged different.- “Because we with the left to.be rights I,- virtually to the lan- [grant greater identical defendants Art. Amendment. guage than afforded under of the Fourth Texas Constitution however, does Constitution] United States I, §. 9 in which Art. context historical (emphasis do so.” not mean that we should adopted might be of some was drafted S.W.2d, at original) Johnson v. a “sei of whether to a determination benefit meaning that is § 9 bears a zure” in Art. existing precedent before (cid:127)Texas in the origin in its from “seizure” distinct applicable to was made Fourth Amendment drafted Art. 9 was Fourth Amendment. granting to support did not state actions Rights did not the Bill of at a time when ac greater protections actions, from state defendants citizens from state protect individual I, enjoyed they § Art. 9 than tions under infringed their including actions which the Fourth from federal actions under searches free from unreasonable to be Johnson, Id., and cases cited Amendment. Mayor Balti Barron and seizures. See, also, Pet.) Brown v. 657 (7 243, therein. more, 672 8 L.Ed. 32 U.S. 797, (Tex.Cr.App.1983) at (1833). S.W.2d 799 — 807 protected right could be This (Clinton, J., concurring). After the Fourth and its arbitrary acts of the state applicable Newman, to the Amendment was made agents by a state constitution. Colorado, 338 U.S. Federalism”; States Indi- Protection The “Old Wolf (1949), until L.Ed. 1782 in an Rights by vidual State Constitution down, inter handed this Court Heitman was Passivity, 15 Conn. Era Federal language virtually identical of Art. preted time, the 21, 21 At that the fram- L.Rev. I, have § Fourth Amendment to 9 and the language chosé ers of the Texas Constitution State, 754 meaning. Eisenhauer v. the same I, § 9 that was almost identical for Art. (Tex.Cr.App.1988). 5.W.2d 159 Amendment. the Fourth conclude from lan It is not unreasonable compared has This Court framers of the Texas I, facts that § Amend these Art. 9 and the Fourth guage of I, § 9 to to draft Art. chose reason for Constitution attempt in an to discern the ment a We do not believe goal Constitution? meaning” United States “independent to be the 6. Is meaning” provisions "independent should be the analysis quest of the Texas all of the we, Ap- reviewing Courts of by Are and the court guiding light Constitution? effort a for each presume Constitution peals, that the Texas analysis of the Texas Constitution. in its meaning independent of the always have a must protect ment, Texas citizens from unreasonable ultimately even when it is unsuccess- ful_ by searches and seizures the state in remotely It apply, does not how- way they protected same ever, were from prospect unrea- policeman yell- of a sonable searches and seizures the federal ing, “Stop, in the name of the law.” at a government. they If grant had intended to fleeing form that continues to flee. That is greater protection to citizens from state ac- no seizure.” they enjoyed actions, tions than from federal Hodari, D., U.S., S.Ct., at at I, they then § could have drafted Art. 9 at 1550. that time to reflect that intent. Hodari, D., case, inas the instant This does mean that this Court’s urged defendant Supreme Court to rule reversed, decision in Heitman is to be that he was arrested when confronted that there will interpreting reversion to authority by police. show of But the I, § Art. lock-step Supreme 9 in with the declined, ruling requires an arrest ei- interpretation of the Fourth Amend physical against ther the use of force a sus- similarity ment. Because of the of the two or, absent, pect where that is submission to provisions, the Fourth Amendment decisions authority by the assertion of suspect. viewed, Court should be at desirable, think “We do not it even as a most, providing guidance interpreta matter, policy to stretch the Fourth I, However, § tions of Art. 9. if the Courts beyond beyond Amendment its words and and this Court decide to raise the meaning of arrest.” ceiling of the freedom of Texas citizens from seizures, unreasonable searches and it will be Hodari, D., U.S., S.Ct., by choosing done in individual cases to inter A appli- an without I, pret justified § in Art. a manner force, physical cation of to which a case, precedent facts of the state on the yield does not is not a seizure under the issue, and state considerations. Fourth Amendment. As Court did the context of B. the Fourth Amendment in Hodari Until the time of the decisions in Heitman ruling Court is left with the task of what a and, then, Hodari, D., interpreted this Court reasonable definition of “seizure” would be in the issue of when a seizure has occurred in case, the context of Art. In this we way the same as the Court: a appellate analysis find the court’s person has been seized when persuasive Fourth Amendment to be when position in his would believe he is not applied nothing to Art. 9. There is free to leave. Eisenhauer v. language of Art. to indicate (Tex.Cr.App.1988); provide the Texas Constitution would for a Mendenhall, United States v. definition of seizure that did not include a 554, 1877, at 100 S.Ct. at 64 L.Ed.2d requirement either that a submit to a (1980). demonstration of that or he be Hodari, D., In added the re- subjected force, physical to the use of quirement that a has not been seized order to be considered to have been seized. yielded until he has to a law enforcement officer’s show of or when officers Appellant proposes in the instant ease Hodari, physically limit his movement. See that he was seized when he was confronted U.S., 626-628, S.Ct., at at 1551. by breezeway, though in the even Hodari, explained The that a away sight he bolted and ran first of at the seizure, pursuant Amendment, to the Fourth officers, giving no indication of inten physical entails the use of force or submis- yield tion to to them. It would be ludicrous authority. sion to prove appellant to hold that these facts was readily yielded actually “The word “seizure” bears the seized before he to the or meaning laying applica- arresting stopped of a on of hands or ders of the officers and physical running away tion of force to restrain move- from them. also, ruling deviates Montano that

To the extent investigative 581-582.(Tex.Cr.App.1992). An justified hold it is precedent, state we from a citizen policy encour- confrontation of of is a it serves detention because the citizen police orders. The officers wherein aging compliance with law enforcement tempo- of display and is legislature yields has fostered to a state investiga- suspects yield to a of an encouraging rarily for detained is authority. TEX.CODE CRIM. citizen which See is a seizure of the show tion. This (b). 38.04(a), and Art. Art. Amendment and PROC.ANN. under Fourth reviewed persua- detaining analysis by is if the principles the Court to determine suspicions on this issue. See Johnson officer’s sive law enforcement S.W.2d, at 722-723. reasonable. citizen are pur- appellant not seized for hold We analyzing an ar comparison, when yielded to a Art. until he poses of or Art. the Fourth Amendment rest under authority by offi- law enforcement show if reviewing court must determine yielded If had cers. probable officer had the law enforcement orders, have been he would not officers’ Because an arrest cause to arrest a citizen. physically stopped until he had been seized than an inves a more restrictive detention by the officers. or restrained detention, satisfy a must tigative the State greater proof and establish burden C. to arrest. probable had cause the officer complains Appellant also the Court investigative investigative de Appeals fused arrests detention Both an First, analysis. they seizures, did not arrest, in its tentions can be contrasted an “fuse”, be or otherwise blur the distinctions citizen and a law between a a confrontation tween, purposes of constitu A the two. For a seizure. officer that is not enforcement investigative analysis, ap both detentions permitted tional officer is law enforcement They either suspicion are seizures. and arrests proach a citizen without reviewing court questions a trial or reasonable because in order to ask probable or cause they constitutionally finds are based on a request a consent search. and even to 497-498, suspicion constitu adequate reasonable or on Royer, 460 U.S. Florida v. cause, tionally adequate probable respective 1319, 1323-1324, L.Ed.2d 229 103 S.Ct. They ly, they are unreasonable. both example, or citizen is free In this represent of a citizen law en away. a seizure Id. While ignore the officer and walk The differences between approach forcement officers. free to officer is law enforcement degree two are on the of intrusion questions, based the citizen is also citizen and ask seizures, involved in both and the different These questions. free to not answer justifications legal required long of each. as a rea consensual so encounters are disregard “to person would feel free sonable reviewing investigative de an When go Ho police and about his business.” law, or federal it is tention under either state S.Ct., dari, D., U.S., may accepted “law enforcement officers situation, required to is not In this the State briefly suspected of stop persons detain had either law enforcement officer prove the activity than is criminal on less information suspicion probable cause a reasonable constitutionally required probable cause questions. It and ask approach the citizen 803 S.W.2d to arrest.” Crockett investigative an neither was not a seizure: cases cited (Tex.Cr.App.1991); and at 311 nor an arrest. detention “Nevertheless, temporary even a therein. investigative detentions and permissible un Arrests this kind is not detention of the deten by the nature of distinguishable upon which the offi circumstances less the parame the constitutional tions involved and objectively support a reasonable rely cers their is, applied to determine actually ters which are person suspicion that the detained State, 816 S.W.2d Amores v. been, legality. See engaged in criminal or soon will be has See, (Tex.Cr.App.1991). Pursuant Id., activity.” cited therein. and cases procedural today, Fourth text of inventories. The issue our decision under the Amend- analytical investiga- Art. in either an was what framework should be ment and arrest, determining employed whether tive detention or an the seizure of when greater protec- provides until a reasonable citizen has not occurred Texas Constitution person would believe he or she was not free tion than the United States Constitution. leave, yielded to the and has When we decided Heitman v. physically officer’s show of or been (Tex.Cr.App.1991), Judge S.W.2d 681 McCor yield. forced dissented, criticizing majority mick for adopting independent the doctrine of state Second, this decision and the deci grounds analytical an for without framework Appeals impair sion of the Court of did not Id. application. its at 691. The 815 S.W.2d ability appellant’s pro to claim constitutional the Heitman problems caused I, § by Art. its decision that tection under provide failure to such a framework was yielded until he he was not seized dramatically Appeals’ seen in the Court of authority. Nothing in either deci show opinion in Autran. Autran v. abridge sion or will hinder defendant’s 1992). (Tex.App. constitutionality of a — Beaumont contest case, justices each of the three wrote seizure, investigative it is an deten whether separately, expressing their frustration in at tion or an arrest. He could still claim the interpret tempting to the Texas Constitution suspicion officers lacked a reasonable to de guidance from without some this Court. The investigation, him tain forcefully frustration was most stated probable cause to arrest him. The State Chief Justice Walker: proven would still need have that before appellant arresting By adopting ‘independent was seized the officers the doctrine of directions, suspicion grounds,’ had a reasonable and articulate state without the four- investigate, probable appeals parachut- cause to arrest. teen courts of have been Swamp, night, appellant The fact that can not claim he was ed into the Okefenokee compass. stopped running seized until he and threw without a gun bag down his does excuse Id., officers, arresting conduct or remove in Autran Consequently, opinion our protection of Art. part analytical an written to establish Appellant’s ground for review is overruled. employed by this framework to be judgment the Court appeals the courts of when asked to deter- affirmed. pro- mine whether the Texas Constitution greater protection than the vides United OVERSTREET, MALONEY, and Specifically, we stated: States Constitution. MEYERS, JJ., concur in the result. ... whether our Constitu- To determine BAIRD, Judge, concurring. provides greater protection tion than its following counterpart, we find the federal framework of Au Utilyzing analytical helpful, although independently factors tran v. (Tex.Cr.App. 887 S.W.2d 81 (A) dispositive: a textual examination of 1994), agree adopt I that we should the defi (B) provision; constitutional the Fram- nition of seizure announced California (C) intent; history application er’s R, (D) provision; compara- the constitutional L.Ed.2d 690 and, states; jurisprudence from other ble (E) practical policy considerations. I. added).1 (emphasis Id. 887 S.W.2d at 37 Autran presented and a both a substantive frequently cited for These factors have been procedural issue. The substantive issue was conducting indepen- greater protec- when an provided whether art. consideration analysis. Ibid. n. 6 con- dent state constitutional tion than the Fourth Amendment provide greater protection in the Notably, employed 1. the dissent in Autran the 9 did analytical to conclude art. context of inventories. same framework

237 III. Burnett and Neil (citing Greene Catherine McCabe, Swamp: Compass A in the Colman factors, I considering the Autran After A to Tactics in State Constitutional Guide 9 adopt for art. conclude we should 79- of seized utilized Challenges, purposes, Law 25 Tex.Tech L.Rev. the definition alleged resolving Supreme Court when (1993)).2 the today, plurality em- 104 And That Fourth Amendment. violations of the following in its anal- ploys the Autran factors is, person physi- is occurs when a a seizure ysis: constitu- a textual examination of the yield cally forced to or a reasonable ante, 232; provision, 912 at S.W.2d tional not free to leave and would believe he is 233-234; intent, ante, at Framer’s 912 S.W.2d authority. yields Hodari show history application and of the constitutional 624-29, 111 at 1550-52. 499 U.S. ante, 232-233; and, provision, 912 S.W.2d Bostick, also, Florida See practical policy considerations behind the 433-35, 2382, 2386, 115 L.Ed.2d 389 111 S.Ct. ante, provision, constitutional 912 S.W.2d at this, definition, appellant was Under Thus, plurality employs Au- 235. not seized. analytical tran ’s framework. comments, join judg- only I these With ment of the Court. II. dissent, plu- CLINTON, Judge

In Clinton attacks the Judge, dissenting. rality’s independent analysis, constitutional precious little of its plurality devotes stating role— the Court “all but abdicates its cause, in this con- attention to the real issue only discretionary its role as a review court— cluding passing will follow almost we ” Post, as ‘the caretaker of Texas law.’ construing precedent in Fourth Amendment (quoting S.W.2d at 237-238 Arcila v. protection against un- our own constitutional (Tex.Cr.App.1992)). Such plurality S.W.2d search and seizure. The understanding opinion almost no coming reflects criticism seems rather odd difficulty specific complexity and' author of Crittenden v. S.W.2d question before us. The reason Crittenden, majori- (Tex.Cr.App.1995). In adopting Supreme plurality gives for ty ignored of this Court the considerations and, ultimately, precedent is shallow indefen- pleads today, adopted the dissent attempt to examine alter- sible. No is made “objective Appeals’ Fifth Circuit Court of scholarly commentators or native views approach” pretextual simply arrests on the jurisdic- appellate courts in other opinions of Id., “judicial basis of convenience.” squarely that have faced the difficult tions (Baird, J., Thus, dissenting). S.W.2d at question momentous of how best inter- but critical dissent’s desire to “review the analogs. pret their own Fourth Amendment scholars, response legal ascertain what Today all abdicates its role— the Court but judges jurisdictions have ... other said discretionary court— only role as a review its then, ultimately, lights,” follow our own Arcila v. caretaker of Texas law[.]” as “the Post, diametrically op- S.W.2d (Tex.Cr.App.1992). position in I posed to this Court’s Crittenden.3 dissent. exception my stating important Judge his Clinton takes It is to note deciding position "diametrically opposed” considered several of these factors in dissent is D., namely, My the common sense definition Post at n.*. observa- he took in Crittenden. “seized,” approaches taken reading opinions the historical borne out of those tion is courts, scholarly several articles description my is tame when one considers policy considerations. Judge six members of this Clinton accused See, being “intellectually dishonest.” Court of (Tex.Cr.App. truth, Cook v. the dissent is less of an evaluation of J., 1995) (Clinton, concurring). Judge Clinton independent the factors critical to constitutional he his cake and eat it too. I think analysis generalized can not have and more of a attack on protests much. too Hodari D. if

I. for us. Even we the Texas Constitution example persuasive, find the federal meaning The issue in this cause is the own, adopt it is still this Court that it as our “seizure,” which, scope of a if it is “unreason Moreover, I, § construes Article 9. we do able,” I, § will violate Article 9 of the Texas Supreme precedent “diverge” not from Court short, appellant Constitution. was choose not to on those occasions when we contemplation in “seized” of our state consti interpretation the Fourth follow its provision? It decided be tutional has been I, construing in our own Article Amendment low, granted review of the and we have lights,” § simply “follow our own as is We question, that was not “seized” for Eisenhauer v. prerogative. our exclusive purposes Fourth Amendment to the State, 159, 167 (Tex.Cr.App.1988) least as that 754 S.W.2d United States Constitution —at v. (Clinton, J., Olson provision authoritatively by dissenting), citing construed Supreme 756, in (Tex.Cr.App.1969) (Opin the United States Court 484 S.W.2d Califor D., 621, v. nia Hodari rehearing). interpret on we it ion Whether it 113 L.Ed.2d 690 When indepen not, differently we cannot avoid I, 9,§ interpretation comes of Article to our I, § dently construing Article construing Supreme decisions of the Court finally plurality does come to When certainly persua- the Fourth Amendment are decide whether we should construe “seizure” sive, just certainly binding, but as au- way under Article 9 in the same Heitman thority. Supreme did for Richardson (Tex.Cr.App.1991); n. in it Fourth Amendment devotes (Tex.Cr.App.1993). 865 S.W.2d analysis. pages than In the less two only fitting It is that we should consult the plurality in fact that we end the decides decision in Hodari D. guidance. That we adopt interpre- should in no wise constrained to follow say, tation of “seizure.” That is to we should precedent construing Fourth Amendment authority hold that it takes both a show of however, analog, our own state constitutional and a submission to that show of Heitman, bears no rehearsal. At least since it can said that a seizure has before it is a truism. simple, singular occurred. The reason is Nevertheless, today expends plurality Texas, viz: that we have a policy in greater misguided part of its effort Code, 38.04, evidenced V.T.C.A. Penal what cir discourse about whether and under encourage police authority. to to submission “diverg[e] should from cumstances this Court Interpreting Article line with the path chosen Court” in Hodari D. will facilitate holding pub- that Op. at 233. issues of search and seizure. policy. lic seems to think that when Heit- plurality significant prob- There are at least three man independently recognized obligation our First, reasoning. it is not at lems with this 9,§ to construe Article it meant we are encourage all clear that Texas has a obligated provi a construction of that to find police submission unlawful the Fourth Amend sion that differs from §if indication. It least not 38.04 is the analog. Op. ment n. 6. Our recent § 38.04 for a is an offense under Crittenden opinion in peace from a officer whom he knows is flee (Tex.Cr.App.1995) have estab should trying him. Subsection to arrest or detain beyond peradventure this Court lished (b) exception it an provision of that makes differently § 9 than “will not read Article authority purport- offense that the particular Fourth Amendment in a con Id., has no ing to make the arrest or detention we can.” simply n. text because opinion In her for the lawful basis to do so. doubt 8. But no one on the Court should Lagarde appeals, noted Indeed, court Justice we duty now can. we are bound (unlike exception today’s plurality), but ex- indepen interpret our state constitution “supports plained that 38.04 nevertheless interpretation dently Supreme Court from yielding of authori- policy of to a show choice. The analogs. federal We have no lawful, challenging interpret ty, whether or not has no state ac the from undue encroachment in court.” Johnson of the seizure lawfulness public a so-called cording to the dictates of (Tex.App.— exigen the 1993). however, unequivocally that elevates policy explain, She did not Dallas the interests cies of the state over who chooses to suspect a on the street how Supreme Court Not even the individual. authority police will be to unlawful submit this, be really in Hodari D.. It would did au challenge lawfulness of that able to the say Supreme Court to that the more accurate submitted, thority, presumably, having since by-product of an incidental observed that as evading arrest or charged be with he will not “seizure,” “com of the word its construction Indeed, if statute at all! detention under the stop be pliance police [would] orders to with exception to 38.04 would anything, at 111 S.Ct. encouraged.” 499 U.S. encourage suspect a to resist an seem to 1551, 113 at 698. Their construction L.Ed.2d authority. This is true unlawful show of they fact that not turn on the of the word did unlawful, because, authority if the show of have this incidental effect. it would believed may confident he can either: suspect be Nevertheless, encourage to uncritical submis 2) 1) successfully escape; or in the event he police authority is the sole reason sion to fail, successfully try escape but should gives prefer the Hodari today’s plurality law; challenge the seizure a court of later plurality Thus the draws D. construction. 3) and, successfully escape or even both boundary imperative individual of an charged apprehended and should he later be exclusively according “public poli to a detention, successfully evading arrest or cy” collective from which that serves charge that in court. indeed Texas defend If requires protection the first the individual encourage has a submission to un attempt perform place. It does even authority, proof. § 38.04 is no lawful ubiquitous “balancing” of the interests Second, if such a even Texas has against of the collective. individual those highly unlikely that policy, it strikes me as new, stunningly downright Orwelli This is a I, § interpreting “seizure” under Article 9 to an, theory interpretation! of constitutional require police a submission to a show policy. that In Hodari will serve II. itself, D. Court observed held for In Hodari D. the “policemen ‘Stop!’expecting do not command that, physical absent an actual the first time ignored, give hoping to to be chase be person, an individual is not restraint of the outrun[.]” U.S. at Amend- purposes of the Fourth “seized” for Similarly I think 113 L.Ed.2d at 698. should authority unless he by police a show of ment enough who is to flee a bold words, fleeing In a actually submits. other from a show of whether suspect, and suspect is not a “seized” not, expect certainly lawful or does not does — during flight is not he discards contraband hope caught. he does not be Since —to subject police illegality, the fruit of deemed definition, by any it is expect to be “seized” exclusionary rule. to the Fourth Amendment unlikely circumscribing constitu- that our “seizure” in this cause is whether The issue word, assuming meaning tional even requires submission Article 9 also it, any bearing on knew about would have he so, authority. If then to a to run. As Professor his decision whether fleeing suspect contraband discarded “Conferring upon the observed: LaFave has subject statutory exclusion- to our will not be discretion to commence police unfettered 38.23, in Article ary rule embodied likely hardly seems to reduce chases of the Fourth Amend- Students V.A.C.C.P. (cid:127) on which willingness of or the occasions invariably Hodari D. to consider ment almost public would seek to elude members of the departure the trend represent a radical from LaFave, police.” and Sei- 3 W. Search defining jurisprudence Supreme Court 9.2A(d) (Supple.1995) zure independently In con- scope of a “seizure.” wheth- struing we must decide Article

Finally, plurality that the would it is odd departure, or to the Hodari provision er to emulate interpret a constitutional choose to Supreme Court stay the course of earlier manifestly designed protect the individual eases, every indication which we have shown submission that show of may before it be said that a “seizure” has following up reaching until now. In short, “seizure,” occurred. no decision, there is we should scrutinize the methodolo- words, subject if Justice Scalia’s “the does in gy reasoning Supreme Court D., yield.” supra, Hodari 499 at U.S. itself, response review the critical Hodari 626, 1550, 111 S.Ct. at 113 at L.Ed.2d scholars, judges legal ascertain what in jurisdictions other have said when called holding Justice Scalia based his on adopt reject upon to or the Hodari D. exam- law, meaning of in “seizure” the common then, ple, ultimately, “follow our own noting understanding, person that that a lights.” supra, See Richardson v. at thing “actually or was not “seized” until Id., 948-951. To that endeavor I now turn. [brought] physical within control.” 499 624, 1550, 113 111 U.S. at S.Ct. at L.Ed.2d at unperturbed by Hodari D. 696. He was the fact that an attempted seizure was also unlawful at com presented in The issue Hodari D. was law, many mon since common law “made basically police pursuit whether of a unlawful, things very of which few were ele approach repre who flees their mere Id., proscriptions.” vated constitutional sents a “seizure” under the Fourth Amend 626, 2, 1550, 2, 499 U.S. at n. 111 S.Ct. at n. apparently anticipated ment. It was that the 697, L.Ed.2d at n. 2. then 113 He turned Supreme would decide whether such Court “seizure,” plain meaning of the word objective pursuit then-extant test for met the concluding remotely apply that does not “[i]t determining whether an individual has been prospect policeman yelling ... a seized for Fourth Amendment that ‘Stop, fleeing in the name of the law!’ at a was first articulated in United v. Men States that form continues to flee. That is no sei- denhall, 544, 1870, 446 100 64 U.S. S.Ct. charge zure.” To the dissenter’s that this (1980) (Plurality Opinion). L.Ed.2d 497 approach ignored fact that literal Supreme “conclude[d] There the Court that a States, concept of “seizure” Katz v. United person meaning has ‘seized’ within the been 347, 507, 389 U.S. 88 S.Ct. 19 L.Ed.2d 576 if, in view of of the Fourth Amendment (1967) Ohio, 1, Terry v. 392 U.S. 88 S.Ct. surrounding all of the circumstances the inci 1868, (1968), ground- 20 L.Ed.2d 889 was not dent, person a reasonable would have be common-law, ready ed Scalia had a Id., lieved that he was not free to leave.” unquestionably expanded response. Katz 554, 100 1877, 446 at at 64 L.Ed.2d U.S. S.Ct. concept upon the common law of the “sei- at later 509. The Mendenhall test was res, things, holding as it did that a zure” of Court, adopted by majority a illegally telephone could be conversation appearances apotheosis all and was But “seized” under the Fourth Amendment. analysis. Fourth Amendment “seizure” See reject common law purport it did not 491, Royer, Florida v. 460 103 U.S. S.Ct. Id., person. 499 concept of “seizure” of the (1983) 1319, (Plurality Opin 75 L.Ed.2d 229 627, 1551, 3, 3, at n. 111 at n. 113 U.S. S.Ct. ion); 210, Delgado, I.N.S. U.S. 698, Terry factually in- L.Ed.2d at n. 3. 1758, (1984); Michigan 80 L.Ed.2d 247 S.Ct. volved a submission to a show Chesternut, 1975, 567, 486 U.S. 108 S.Ct. things and was therefore all consistent 100 L.Ed.2d 565 interpretation of with a literal constitutional Appearances deceiving. person. Instead of To Hodari D.’s can be “seizure” of the Id. ap- applying straightforward argument Mendenhall that this new formulation of “sei- Mendenhall artic- proach, added another zure” was at odds with the ulation, replied: layer analysis. In essence the Court Scalia that, here, physical actual rely upon held the absence of seeking “In that test contact, enough respondent carefully. it is not to effectuate it It fails to read if,’ ‘only says person Fourth Amendment “seizure” that a has been seized ‘whenever’; that “a it have made a show of such not that he has been seized sufficient, necessary, not a would have believed states a but precisely, more must also condition for seizure —or he was not free to leave.” There scope the Fourth Amendment through a ‘show of But “the for a seizure effected ” authority.’ vary with the state of mind [should] being approached.” particular individual Id., 1551, 628, at at S.Ct. Chesternut, Michigan supra, 486 U.S. at Finally, re- L.Ed.2d at Justice Scalia 1980, 574, at 572. 100 L.Ed.2d 108 S.Ct. approach marked that his was at least consis- be, rather, on the conduct focus should opinions, prior tent with two Otherwise, lot of “coercive late, of the officer. early and one viz: Hester v. United one “go States, intimidating” police behavior will 44 S.Ct. 68 L.Ed. U.S. (1924), Inyo County, supra, U.S. and Brower v. unchecked.” L.Ed.2d 628 U.S. 109 S.Ct. 113 L.Ed.2d Id., 628-29, (1989), respectively. 499 at contrary U.S. to the deterrent “[t]he This runs 1552, 111 at 113 at 699. Be- exclusionary S.Ct. L.Ed.2d purposes of rule” to “dis- complied D. cause Hodari had not improper part of eourag[e] behavior” on police Id., 646, at at police. 499 U.S. S.Ct. illegally held had not been “seized” under he 1561, Indeed, the ma- 113 L.Ed.2d at 710. the Fourth Amendment. may positively encourage jority’s new rule dissent, engage displays in of graphically police

In Stevens il to “unlawful Justice disturbing frighten lustrated the ramifications of the countless innocent force that will majority’s holding surrendering privacy when he observed “that a citizens into whatever may police weapon may officer now fire his at an rights they still have.” Id. Justice implicate innocent citizen and not the Fourth “A court more sensitive Stevens concluded: long as tar Amendment — as he misses his the Fourth Amendment to the of Id., 630, 1552, get.” at at U.S. S.Ct. greater society would insist on rewards to seeming 113 L.Ed.2d at 699-700. This decreeing it to- before the sacrifice makes anomaly majority’s he attributed to the over 1562, 648, day.” at Id. 499 U.S. at S.Ct. method of Fourth in- ly-parsing Amendment at 711. 113 L.Ed.2d terpretation, by a method once embraced States, Court in Olmstead v. United 277 U.S. Response The Critical and Judicial 438, 564, (1928), 48 S.Ct. 72 L.Ed. 944 but response critical flat-rejected in since cases such as Katz and opinion in D. has been one of Court’s Hodari Id., 632-637, Terry. 499 U.S. at 111 S.Ct. at varying For the shades of condemnation. 1554-1556, 113 L.Ed.2d at 701-704. He ar- part the scholars have echoed and am- most gued adequately that Mendenhall framed a Perhaps plified concerns. Justice Stevens’ “seizure,” complete determining test at in Profes- the most adamant his criticism is least as that word had come to be understood LaFave, supra, at 139-145. sor LaFave. See Terry, since Katz and viz: that a “seizure” majority argues forcefully that the LaFave may objectively has occurred whenever it opinion split in D. to hairs Hodari erred- (Mendenhall’s “only said if’ formulation not- battery of between the common-law offenses withstanding) liberty “that is be- [a citizen’s] (not (a “seizure”) “seizure”), and assault Id., ing significant way.” in a restrained is agreeing Stevens that “this with Justice 1558, 113 U.S. at 111 S.Ct. at L.Ed.2d at dichotomy which ‘should take on consti- advantage 706. The of the Mendenhall test Id., 141, quoting at tutional dimensions.’” objectivity. police It “allows the is its 1553, 113 111 S.Ct. at 499 U.S. in conduct determine advance whether the (Stevens, J., dissenting). To L.Ed.2d at 700 contemplated implicate the Fourth will at all to define “sei- consult the common-law Id., 643-644, 111 Amendment.” U.S. with the 708-709, zure” is inconsistent citing S.Ct. at L.Ed.2d States, approach in Chesternut, Katz United Michigan v. D. supra. Id. LaFave accuses the Hodari 1975, 1980, 100 L.Ed.2d majority misrepresenting signifi- true view, of majority’s an officer Under supportive of it cites as cance case gauge whether he has “seized” an indi must 141-142, (viz: Hester), id., at vidual, Brower and approaching conduct in his own by the him, ignoring those cases cited to it. and of but the individual’s reaction descriptions garding his to avoid unwarranted dissent for their broader encounters); Note, Precedent for Hodari protection against un- Fourth Amendment Supreme Court It Ex “liberty,” Modern Cases — Does of reasonable “seizure” terms Hodari, Analysis ist? An movement,” “personal secu- “freedom of California (1991) (noting T.Marshall L.Rev. 171 Id., rity.” anomaly affording expansive con more is LaFave also maintains the Court res, un stitutional definition “seizure” to requiring submis- unrealistic believe D.). Katz, carpus, than to under Hodari der danger sion to will reduce the Indeed, reasonably diligent research failed to police pursuits. inherent single uncover a commentator who seemed to Grounding on the the definition “seizure” approve of the Hodari D. construction. reaction of the citizen instead of the conduct fairness, all it should be noted that several of try likely encourage police D. the above commentators believed Hodari flee, provoke hope generat- him to in the inconsistent, to be not so much with the ing during the chase. To this ex- evidence itself, language of the Fourth Amendment ruling actually tent the Court’s exclusionary policy of the with the deterrent flight imposes the risk that enhances rights rule which Fourth Amendment Id., Finally, public. at 143-144. Says A vouchsafed. Conservative Court See D. it becomes less and less clear to Hodari That”, 1342-43; “Goodbye supra, All to really citizen that he does have a to Precedent For Hodari in Modern away police from a encounter that is not walk Cases, supra, at 182. also See Califor probable or rea- supported either cause D., supra, nia v. Hodari 499 U.S. at suspicion. long This is so because as sonable (Stevens, 113 L.Ed.2d at 710 S.Ct. “submit,” police as a citizen does not officer J., dissenting). do well to remember We may badger him him follow and continue to rights protected that whether the Fourth will, until the citizen “consents” to do his Amendment have been violated is distinct enjoying protection of the without ever question whether the federal exclu Amendment, arguably Fourth since no “sei- sionary ought apply. v. rule United States Id., occurred. at 145. LaFave zure” has Leon, 897, 906, 104 3405, 3412, U.S. that all of anomalies stem believes these 677, 688 82 L.Ed.2d “literal-minded,” excessively com- from an judicial response has been no warmer. The mon-law bound construction of the word “sei- appears every far state court of It that so zure.” address whether to embrace last resort similar Other commentators have raised its state Hodari D. for own See, Clancy, e.g., T. The Future of concerns. analog to do so. has declined constitutional Analysis Fourth Amendment Seizure after 635, Oquendo, v. 223 Conn. See State Bostick, Hodari D. and 28 Am.Crim.L.Rev. (Conn.1992); Quino, v. A.2d 1300 State (1991) (Hodari D. is inconsistent (1992); Matter Haw. 840 P.2d 358 “seizure,” prior defining misdirects caselaw (Minn. E.D.J., N.W.2d 779 Welfare of 1993); police upon reaction rather than focus citizen (La. Tucker, 626 So.2d State misconduct); conduct, encourages police 1993). Holmes, People v. 81 N.Y.2d Cf. Note, Fourth Amendment — Protection (N.Y.1993) 459, 619 N.E.2d 396 601 N.Y.S.2d the Person: Against Unreasonable Seizure of predicat- police pursuit must be (holding that New(?) For The Common Law Arrest Test apparently as upon suspicion, ed Seizure, Criminology 747 82 J.Crim.L. & law, without reference to a matter of state (1992) (Hodari encourage police D. mis will D.). any It said that Hodari cannot be conduct); Note, Says A Conservative Court particularly opinions provides a extend- these Forges All a New “Goodbye to That” and exegesis of the merits or demerits of the ed in the Law of Order analysis. “seizure” It is at Supreme Court’s Seizure — California (1992) (Hodari clear, however, La.L.Rev. 1821 Hodari states that our sister least rath misplaces harmony believing focus citizen reaction that the in relative are conduct); is insuffi- police than Fourth Amendment construction er Cases, protect rights of their ciently Leading 105 Harv.L.Rev. broad Court — (1991) (Hodari v. Tuck- “left alone.” See State citizen re- citizens to be D. confuses er, give protection people’s supra, weight authority is want to “more at 711. The people’s in their items than to inter squarely against Hodari D.. interest persons?” in their Precedent For est Lights” “Our Own Cases, supra, at in Modem yet, surely pre is not 178. And this Court go background, how should we Given methodology Katz! pared to abandon the independent obligation about our to construe reasonably Having stayed course of a I, § Perhaps “seizure” under Article 9? it is I, § of Article 9 so far — a liberal construction It begin best to with a disclaimer. will solicitous of the course that is at least as say interpret do to that we should “seizure” inviolability it is of the of the individual as broadly under Article 9 because such a exigencies state — we should not devi of the keeping construction is in with the deterrent ate from it now. rule, exclusionary as some have suggested. See ante Whether opt reasonably liberal con- Once we for a occurred, “seizure” has and whether result- 9,§ the criticisms of struction of Article has, ing evidence should be excluded if it compelling seem the Hodari D —tractors Leon, separate questions. United States First, enough. require to a submission supra. rightly We cannot decide that police authority may it be said before just conduct constitutes a “seizure” because scrutiny a “seizure” has occurred shifts egregious enough any think it seems that we state’s from the conduct —the thereby ought evidence obtained to be ex- individu- representative the reflex of the —to exclusionary cluded. That would allow the al, supposed whom Article 9 is event, wag dog. tail to the “seizure” protecting place. It thus fails to the first exclusionary we do not have a constitutional inquiry make into the character of state- rule Texas. See Brown v. test, sponsored conduct. The Mendenhall (Clin- (Tex.Cr.App.1983) 803-804 contrast, pressure is a measure of the level of ton, J., concurring, on remand from United bear, police bring on and thus focuses Court), citing quoting States behavior. If a reasonable State, Welchek v. 93 Tex.Cr.R. 247 S.W. would not feel free to leave under the circum- agree Whether or not we stances, is then even the who runs that, physical absent con- mental, physi- weight under a if not actual tact, requires a “seizure” submission to a cal, coercion. And if a communication can be gleaned must be States, “seized,” supra, Katz v. United I, § text of Article 9 itself. really say a can we “seizure” cannot Second, notwithstanding communicated? Ultimately choosing the issue boils down delaying optimism, naive Justice Scalia’s methodology interpreta- of constitutional until actual submission moment “seizure” tion. Shall we follow the likely will en- to a show of occurs newly-revived approach literal-minded provoke flight way of courage police to as a construing provi- our own search and seizure po- producing promotes This evidence. former, sion? Or shall we retain the more intimidation, any countervailing without lice expansive approach, Mendenhall with which public. to the Thus the reduction of risk satisfied, perfectly we were at least as “public policy” espoused by Hodari law, right up matter of Fourth Amendment eagerly, uncritically, by a albeit endorsed E.g., until was decided? Daniels majority today, a sham. of this Court is (Tex.Cr.App.1986); 718 S.W.2d (Tex.Cr. Holladay For these reasons we should adhere my determining under Arti- App.1991). In view the latter methodolo- Mendenhall test for whether, restraint, stands, gy preferable. currently physical As it cle absent (and adopted place. should do Supreme Court has a narrow a “seizure” has taken We dubious) so, exclusionary understanding seems “seizure” because person, exclu- tethered to the common-law. At the call for it —we have no constitutional I, § sionary policy an under Article 9. We same time it continues to entertain under- standing of “seizure” in contexts that is should do so because to construe “seizure” other way appropriate an balance be- not tied to the common-law at all. Katz v. strikes States, supra. Why individual’s to be free United would this Court tween the governmental intrusion and unwarranted often-legitimate need to intrude

state’s prevent or vindicate crime and

order citizenry.

thereby protect its

III. course, Lagarde’s agree,

I with Justice that we should not inter

observation below

pret protectively than the Article 9 more just can.

Fourth Amendment because we State, supra, at 718. See Critten

Johnson instance, supra.

den v. In this howev

er, supra, I as in Richardson v. believe prot construe Article 9 more

we should

ectively.* I hold that an individual is would

“seized” under Article 9 whenever person in his circumstances would leave, he tries to

not feel free to whether anyway I

leave or not. would then remand appeals for further

the cause to the court of

proceedings that hold not inconsistent with

ing. not, I

Because the Court does dissent. Texas, Appellant,

The STATE of THOMPSON, Appellees.

James Lee Texas, Appellant,

The STATE of PERRY, Appellees.

Robert Clarence 14-94-01191-CR,

Nos. 14-94-01192-CR. Texas, Appeals of

Court of Dist.). (14th Houston 26, 1995.

Oct. * however, insist, concurring opinion continues to rehearing, we have de- In his motion for which present origi- my position cause is "diamet- complains in the day, appellant that our nied this rically opposed opinion I wrote for the day, to" the opinion, withdraw this devot- nal which we matters, 899 S.W.2d 668 unjustifiable collateral Crittenden ed attention to of col- (Tex.Cr.App.1995). In the further interest including judges' opinions of “the individual response more than legiality, I will forbear effort to tone down each other." rhetoric, In an explanatory simply text opinions the reader to the to refer these substitute we have issued Crittenden, supra, at 673 & n. 8. today. only hope and footnote the effort succeeds. I can

Case Details

Case Name: Johnson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 15, 1995

Citation: 912 S.W.2d 227

Docket Number: 1340-93

Court Abbreviation: Tex. Crim. App.