Oles v. State

OLES, Appellant, Melvin of Texas. STATE

No. 764-98. of Texas.

Court of Criminal

May Houston,

Kurt Gumberger, appel- lant. Roch,

S. Elаine Asst. Atty., Dist. Hous- ton, Paul, Austin, Atty., Matthew State’s for the State.

OPINION PRICE, J., opinion delivered the McCORMICK, P.J., Court in which MEYERS, MANSFIELD, KELLER, HOLLAND, KEASLER, WOMACK and J.J., joined.

Appellant charged offense of murder. After a hearing, the trial court appellant’s pre-trial sup- denied motion to press Appellant initially pled evidence. guilty, during trial changed his plea guilty. accepted The trial court the plea twenty and sentenced years Appellant argued confinement. the trial appeal court erred suppression In a granting motion. published opinion, the Court of judgment affirmed the court. the trial (Tex.App.— Oles v. 965 S.W.2d 641 1998). st [1 Houston granted Dist.] We appellant’s petition to determine whether enforcement, without a war- rant, may test lawfully arrested and in for one per- in order to investigate offense second) (a son’s involvement in another offense, legitimate expectation circum- when there are no rightfully under the justify testing, stances to warrantless yet tested the'police, control nor there cause to test In its analysis, crime. Id. unrelated clothing for the second offense. legiti- test applied proving will affirm. We privacy, involving two mate (1) individual, by his queries: whether the Facts (subjec- conduct, actual has an exhibited in this ease. undisputed The facts are (2) tive) wheth- initially po- Appellant was detained at subjective expectation of er individual’s potential witness to a lice station as prepared privacy is оne that detention, During police murder. See (objectively) as reasonable. ap- an warrant issued for open discovered 442 (citing Maryland, id. Smith v. pellant’s pro- arrest on a to revoke motion 2577, 2580, 741, 99 61 L.Ed.2d police appellant bation. The arrested on State, (1979), Villarreal v. 935 S.W.2d warrant; not ar- outstanding did (Tex.Crim.App.1996) (plurality him for in- police rest the murder. The Appeals deter- opinion)). The Court of appellant’s clothing ventoried and stored appellant that affirmative- mined pursuant to this lawful There arrest. test, thus the ly prove prong either on within this evidence its trial court did not abuse discretion apparent immediately the naked Oles, suppress. the motion to denying later, eyе. Eight days with still appellant S.W.2d at 645. incarcerated to the revocation pursuant warrant, investigator an took decision, After this reconsideration en clothing to the medical examiner’s office to Oles, 965 banc was S.W.2d at requested. determine if it A contained blood traces. in a 5-4 request 645. This was denied serologist on appellant’s discovered blood Id. Andell an decision. Justice delivered shoes that matched the of the mur- blood from the of en opinion dissenting denial charged der police appellant victim. The reconsideration, banc in which Justice murder, with presently from which he ap- joined. dissenting opin Id. The O’Connor peals. one was re argued ion more test quired to that this search was determine Appeals’

Court of Decision It (emphasis original). Id. reasonable. published In a the minimum constitutional opinion, the Court of averred Appeals holding requirements affirmed trial court’s for warrantless search (1) suppression on will be probable the evidence.1 Oles cause evidence (2) State, exigent circumstances (Tex.App S.W.2d 641 uncovered and . -Hous 1998). (citing ton search. Cham Ap justifying st The Court [1 Dist.] 42, 52, right 90 S.Ct. peals every Maroney, held that the had bers v. (1970)). 1975, 1981, appellant’s clothing, it from This take him, keep exigent it in official incident case did not involve circumstances cause, court See id. at 644. It deter nor thus trial arrest. suppression mo granted should have mined issue be whether lawfully crime continued tion. Id. arrested one However, (Vernon Appellant's Supp.1998). the Court of brief before the Court of solely Consti- explained Appeals focused on the Federal that there were no circum- search, only on We will also focus to authorize a warrantless tutional issue. stances issue, provides illegal thus the search was under the Fourth Federal Constitutional Constitution, equal appellant at least an amount of Arti- Amendment of Federal Constitution, I, protection counter- § of as its Texas Constitution cle the Texas Code statutory ap- part, provisions do not articles 14.01 to 14.06 and the Criminal Procedure (Vernon Supp.1998) ply violation. 38.23 without a Fourth Amendment 1977 & article

Standard Review initially an arrested accused. There is no reason to result different here. ruling on Generally, a trial court’s police lawfully appellant arrested pur- to suppress motion reviewed suant to an open Any warrant. abuse of discretion standard. Maddox See in a evidence discovered search incident to (Tex.Crim. State, 682 S.W.2d arrest, reasonably seized, if otherwise App.1985). the instant case suppressed merely should not be because presents us with a of law based than it relates to a different crime the one undisputed facts, apply thus we de novo eventually for which charged. review. Guzman (Tex.Crim.App.1997). This Court has held may initially analyze a clothing detainee’s inci Analysis to Marquez dent arrest. See State. 725 a impression This is case of first for this 217, (1987), denied, S.W.2d 234 cert. 484 questions Court legal presented and the 872, 201, U.S. 108 L.Ed.2d S.Ct. 98 152 First, are complex. varied and this Court case, In that was Marquez arrest must determine whether an arrestee re- and immediately transported ed to po the tains in any clothing An lice station. Id. him officer ordered to taken lawfully by police and inventoried noticing disrobe after there were Second, to an incident arrest.2 if we con- on his clothing blood stains and shoes. Id. exists, clude that such a privacy interest analysis verified that the Forensic blood we then if subsequent must determine a on clothing stains matched the victims’ warrant, search that clоthing without a Marquez charged blood and was with mur cause, probable “plain knowledge or view” affirming conviction, Id. In Marquez’ der. evidence, clothing’s relevance as vio- this Court held that warrantless “[t]he sei lates remaining privacy pro- interest suspect’s clothing subsequent zure a to tected the Fourth Amendment.3 arrest, custody in while deten tion, Initially, permissible.” we decide that it is of Id. The sole ratio consequence arrest supporting ruling nale citation ed for a different crime than one for opinion, to a United States Edwards, eventually which he was It is charged.4 United States v. and three cases beyond dispute that a firearm or controlled from this Court had also cited Ed substance found in incident to wards. 415 94 39 U.S. S.Ct. (1974); lawful arrest would not be re 771 suppressed, L.Ed.2d ‍‌​‌‌​​​​‌​‌​‌‌​​​​‌‌‌​​​‌​‌​‌​​‌​‌​‌​​‌‌‌​‌​‌‌‌​‍and see Russell v. State, gardless charge police on which 771 (Tex.Crim.App. S.W.2d precise ap- supported by particu- 2. The in reason for review stated oath or affirmation and larly place pellant’s petition describing the discretionary be searched.” for review is: U.S. IV. Const. Amend. enforcement, "whether without warrant, clothing may test the of a 4.Appellant to warn stresses distinction person lawfully custody arrested and in for police "pre-textual” stops may use investigate per- one offense in order suspects petty, order to arrest unrelated (a second) son’s involvement in another of- charges clothing searсh their subse then fense, when there are no circum- quent previously We re to the arrest. have justify testing, stances to the warrantless jected "slippery-slope” argument when probable there cause nor is to test the cloth- police probable cause have established State, for second offense.” S.W.2d arrest. See Garcia v. State, (Tex.Crim.App.1992), Crittenden provides perti- 3. The Fourth Amendment (Tex.Crim.App.1995). S.W.2d part, right people case, nent to be "[t]he In this it is uncontroverted that houses, persons, papers secure in their police appellant, had a valid warrant to arrest effects, against unreasonable searches and any subsequent similarly cases would re violated, seizures, shall not be and no war- quire valid cause arrest or the cause, issue, upon probable suppressed. rants shall evidence would be “Indeed, perceive what is 1983), denied, 1073, 104 difficult to cert. police examining about the (1984); unreasonable Stewart v. personal evidence those holding State, (Tex.Crim.App. they already of .the accused (Tex. effects 1981); Deal 508 S.W.2d 355 the result lawful in their Crim.App.1974). lawful arrest.” Edwards, In booked sus night, following but waited until the pect at instant The distinctions between labora morning to submit Mar of Edwards and case and the cases 805, 94 tory analysis. 415 U.S. at notably, Ed Most quez important. “in The Court held that S.Ct. at 1238. dealt with blood- Marquez wards and Edwards, like” the one in situation to the аr splattered clothing easily visible person, of a for at least a legal officer, the officer resting whereas ex reasonable time and to a reasonable case not see the blood instant tent, “own out takes arrestee’s view”. When protection of the realm of in days eight after his arrest was taken weapons, escape, terest means testing, the search the forensics lab 809, evidence.” 415 U.S. at 94 S.Ct. at original than the was more extensive apparently 1239-40.5 Edwards Court inventory. This at and arrest holding their on the view” based has caused search” distinction “second doctrine, stating conflicting among federal results it became that the ar- apparent “[w]hen courts, explainеd will below. state as for the ticles of were evidence Wayne LaFave, Also see R., SeaRch & rd crime for which was [appellant] 5.3(b) (3 Ed.1996). § Addition Seizure take, held, police to were entitled clear ally, Marquez Edwards and involved examine, them use preserve for as cause, probable while here the findings evidence, just they normally per- are appear did to have sufficient not mitted to seize evidence of a crime when to for a search war apply cause lawfully it is encountered.”6 clothing. Finally, the rant of (cita- 806, eight-day delay Id. 415 94 at 1238 U.S. S.Ct instant case involves an omitted). However, they certainly analysis ap tions and the between arrest open possibility expanding left this aforemen pellant’s clothing, where the only half-day de companion basis statement that cases involved tioned Therefore, lay. although Edwards paragraph: ended the same vomiting expel to pump” to Appellant 5. cautioned "stomach induce stresses Edwards Thus, against expanding holding capsules). its when it stated clear that this warn- case, ‘‘[w]e do conclude that the Warrant in but the issues envisioned Clause of Fourth Amendment is never against violative of a rather warned searches post applicable to the effects seizures of bodily person’s person, are inher- actual 808, arrestee.” 415 U.S. at 94 S.Ct. at appel- ently more violative than appended ain footnote to clothing. lant’s explained quotation, by conduct be tested such must justified arrest is also 6. A search incident to general proscription Fourth Amendment’s by right protect to himself from the officer’s against and seizures. unreasonable searches weapons the accused’s concealed (citing California, Id. n. Schmerber v. 384 9 of control. or within their immediate area 757, 1826, 86 16 908 U.S. S.Ct. L.Ed.2d Robinson, U.S. See United States (1966) (reasonable appel- require for to State (1973). As S.Ct. give prosecution lant blood test in criminal clearly appropriate argument in this not an intoxicated); driving Rochin for while cf. (the completely out of had been case clothes California, eight days before appellant’s control for (1952) (unreasonable State L.Ed. 183 search) appropriate we focus on more will capsules morphine attempt to extract force, precedent. by appellant's utilize mouth then conduct, Marquez provide the foundation for to he exhibited an actual sub- day’s ruling, clearly disposi- jective are not expectation privacy, gen- i.e. a of the presented preserve tive issues in the instant uine intention to something as (b) private; case. that circumstances ex- under prepared isted which by The Texas cases cited Marquez distinguishable on equally their facts from (citing reasonable. Smith case, unique presented by issues 735, 740, Maryland, 99 S.Ct. provide but one of them guidance does 2577, 2580, (1979)). 61 L.Ed.2d 220 answering presented: the first question alone, standing “The arrest of appellant, However, an attempting arrestee not destroy [does] whatever in- prove prongs these two must additional terests she had in contents ly already overcome the expecta lowered purse, [but least for reason- does] tion of exists arrest and extent, able time and detainment situations. It is clear our legiti- subordinate interests to the those ruling Marquez this Court deter governmental mate interest in discover- mined the inven ing weapons preventing the destruc- partially toried items is lessened or dissi tion or secretion of evidence.” patеd, we could not have held that it valid to search and seize the Stewart v. Marquez, blood-stained shirt.7 S.W.2d Thus, do arrestees retain some Further, at 234. while an level of privacy interest the personal incarcerated, he has no of pri belongings effects or taken from inci- them vacy jail the cell or the he dent their arrest. finding State, wears within the cell. See v. Soria only begs question: the is this diminished 46, (Tex.Crim.App.1996), 60 expectation legitimate, of privacy in that it denied, 1253, 2414, cert. S.Ct. 117 prohibits from an searching ar- (1997). Thus, jail 138 L.Ed.2d 179 from a a restee’s or effects without war- expectation priva cell where he of has probable rant or cause? This is and in cy, regards to clothing previously by focusing best answerеd on what determined to outside the realm of Fourth designed Amendment is to protect. protection, Fourth an Amendment arres recently We held that the Fourth must prove tee that his conduct reflected a Amendment an safeguards individual’s genuine expectation intention of an of pri legitimate expectation of privacy from and vacy, would deem such an governmental unreasonable intrusions. expectation as reasonable un State, v. Villarreal 935 S.W.2d at 138. these der circumstances. Although Villarreal involved an accused’s expectation of privacy many another’s home Courts consider factors deter- distinguishable and is from mining this case on not an expectatiоn whether or fact, Villarreal, by privacy legitimate. affirmed the standard is See 935 omitted). (citations prove legiti- which an must Howev- S.W.2d 138 (a) expectation er, mate privacy: by many ‍‌​‌‌​​​​‌​‌​‌‌​​​​‌‌‌​​​‌​‌​‌​​‌​‌​‌​​‌‌‌​‌​‌‌‌​‍inapplicable of these factors are justification (Tex.Crim.App.1994) It is immaterial what em- S.W.2d 851 887 (third ployed finding party may to a properly lowered consent search privacy, inventory authority whether it is standard he over when has control and use station, searched), denied, practice booking plain premises view cert. exception, argu- potential or others. Another U.S. 115 S.Ct. 131 L.Ed.2d 198 ment could be that the Regardless why appellant’s expec consent to search, diminished, authority control substantially tation of ap over the items to be searched. See United remains diminished until Matlock, 164, 171, reflecting pellant expec States v. an can exhibit conduct (1974); privacy. v. Garcia tation of exigent circum- bar, jail cause or tence of largely because the case stances. by storage facility operated cell places com- simply enforcement agree courts federal state Several privacy. with notions of

monly associated States conclusion. See United with this example, completely inapplicable For Cir.1974) (defen- (2d Jenkins, 496 F.2d 57 whether the situation consider per- had traffic violation dant arrested for possessory in- property him, had a including accused from effects taken sonal invaded, or in the whether he safe- place terest that were inventoried currency, invaded. checked legitimately place days within the later officer keeping; seven case, against “bait “invaded” is serial numbers place currency’s In this id. robbery; court held money” from a recent operated by the officers storage area numbers were seen but these investigating the accused—who himself Ed- under upheld the search recorded ability area if he has no to enter the even wards); Phillips, United States so wanted. (8 Cir.1979) (personal effects F.2d th to this applicable of the factors are Some arrest; upon defendant were taken from situation, however, such as whether in an envel- placed later these effects were control complete had dominion or accused envelope’s contents ope; still later from his right to exclude others incriminating note were examined and pre- belongings, whether he took normal found; under upheld Ed- customarily by taken seek- cautions those Johnson, ); wards United States priva- whether his claim of privacy, or (9 Cir.1987) (court upheld F.2d 1065 th historical cy notions is consistent signif- “expectation when privacy. weigh See id. These factors all when inventory earlier icantly reduced” against finding pri- of an money not recorded at serial numbers casе, vacy present as strik- but none inventory by police); first later verified Bible, ingly involving as the one historical notions 175 Ariz. 858 P.2d State v. (court (1993) imaginable seizure and privacy. upheld police No situation charge on different alien to the notion of than an ar- of clothes arrested; “authorities cell, one defendant sitting jail completely sepa- in a restee had properly tested that which merely lawfully rated from his effects that are their State v. Wil possession”); come into by very po- controlled and inventoried (1991) liam, 248 Kan. 807 P.2d 1292 lice are him. investigating (second look not limited to cases where it recognize item as officers observe and It is doubtful these situations Wheeler, later); State v. 128 N.H. evidence any appellant subjec would harbor a (boots (1986) lawfully A.2d 289 tive belief that inventoried items are still lawfully against tested seized and later that im private Notwithstanding to him.8 scene); prints at different crime Contreras application probability, based (Tex.App v. S.W.2d . -Cor above, it is certain nearly factors described refd) 1992, pet. (police not pus Christi not this would belief for required fingerprints to obtain warrant reasonable these situa arrest). appellant at or shoes seized inevitably This to conclu tions. leads Nevertheless, agree it to examine not all courts to proper sion that “second look”. their con breadth clothing validly proper and test within regardlеss The Fifth Circuit has held an arres- custody, trol of the exis- and appellant these clothes posited tent that considered Court of subjective by belief all intent private, shown such it is at clear not pick up asking family to friends or members by objectively reasonable would be considered facility. at clothes for him the detention his However, society. if this in- even shows privacy rights tee’s dissipated items quirement reasoning for a warrant. This by police. law, inventoried States does not United follow relevant case how- (5 Cir.1988) Thompson, th F.2d ever. The Edwards Court could have eas- (keys plain taken from' at held ily exception justi- defendant arrest are that the view later identified as him linking evidence to fied the seizure of clothing, Edward’s dynamite; person lawfully Rather, court ar- held it did not do merely so. it alluded rested no has explicitly idea—without ever utiliz- privacy respect property properly with ing term view” and invok- taken inventory by from his its well precedent established —and Grill, police); United States 484 F.2d then somewhat undercut this conclusion (5 Cir.1973) th (key taken from defen- asserting broad statement that it dant at arrest that later linked anything wrong defendant would be difficult to find suppressed; crime police searching something they reasonable with the expectation of an breached offi- Similarly, have under their control. taking cer’s a second look at matter did exigent Edwards Court not discuss which exрectation of par- any least playing circumstances as role in its indeed, tially dissipated). decision; In both Grill and difficult see how Thompson, the Fifth Circuit held that the the facts of finding Edwards would allow a second search was no more intrusive than circumstances since the police search, thereby initial distinguishing had the under their control and precedent, these cases from its own Brett in no danger losing were imminent (5 States, F.2d United th evidence. The inherent with the flaw anal- Cir.1969). Brett, In an officer ysis searched DAntorio and is that Brett both pocket jeans watch of Brett’s three relieve of his to prove arrestee burden days packet his existing legitimate expectation after arrest found a heroin; containing trace amounts of Fourth privacy. The Amendment is not a pocket during origi- magic searched wand privacy rights that creates inventory. nal Id. The Fifth previously where there were determined to (1) none, Circuit determined that this search was nor dissipated should restore more extensive than one performed rights appellants without providing some (2) his actual arrest inventory, plain legitimate evidence that harbored ex- applicable Therefore, view was not due pectations to the trace of privacy. once it is found, (3) amounts of heroin no exi- police lawfully determined that seized the gent arrestee, disposal circumstances warranted the of an personal effects his expec- requirement. the warrant Id. There- tation of diminished those fore, determined the court that the second until can and effects he does exhibit sub- conduct, search violated appellant’s rights jective under his expectations through the Fourth Amendment. also the presumably Id.See at time of release from (Alaska D’Antorio 837 P.2d 727 detainment or Further- incarceration. 1992) (second more, App., glance not if applicable exceptions dissipated the the later examination more than expectation privacy (weapons, intensive of at arrest first). etc.) evidence, secretion or destruction of releаse, removed the at time of thus respectfully disagrees This Court the circumstances compel finding a analysis. with The DAntorio and expectation would be rea- grant pro Brett Courts defendant more sonable. simply tection he is incar already because cerated; a search that was Reviewing at this search under a circumstances, illegal totality becomes the evidence was of there is because the vir tually not in cir exigent appellant view” nor were no evidence that harbored present that nullified the re- of expectation privacy cumstances his

HI the side, eye. And because with the naked in the clothing that was store legitimately handle and society police nor there evidence that police, is shoes, of shoes the inside the even the reasonable under would deem such belief officers, so police exposed would be has failed Appellant circumstances. these ex- would establishing appellant proof his to meet burden of the against inspection privacy of pectation privacy of in this expectation a legitimate of either. portion the shoes of that Therefore, clothing clothing.9 encompassed protection is under the en- is whether question The real and the search of the Fourth Amendment would may tests that perform forcement valid. clothing was reasonablе and that a information them to discover enable give naked-eye would not examination reasons, judgment the foregoing the For ques- I answer the them. believe is affirmed. the Court of Supreme I two is find “yes,” tion give useful appear to cases that Court J.J., KELLER and JOHNSON the matter. In United States guidance on concurring opinions. delivered Jacobsen, S.Ct. ‍‌​‌‌​​​​‌​‌​‌‌​​​​‌‌‌​​​‌​‌​‌​​‌​‌​‌​​‌‌‌​‌​‌‌‌​‍KELLER, J., concurring delivered this (1984), agents private for a opinion. (Federal in accor- Express), mail carrier appellant is whether question The here regarding a company policy dance claims, had a reasonable opened a cardboard insurance type against testing the Id. paper. in brown at wrapped package If he had no reason- They conducted. plas- discovered 1652. S.Ct. privacy, then there was able white bags containing powder. zip-lock tic implicating no “search" the Fourth agents notified Express The Federal id. Amendment, (DEA), and so of search Drug Agency Enforcement warrants or circumstances be- scene. dispatched agent a DEA And, only comes irrelevant. because the opened plastic The agent Id. DEA appellant complains evidence which amount of the a trace bags and obtained shoes, testing found on blood 111- each of them. powder from of other items of irrelevant subsequently per- He inquiry. question actually our The only powder chemicаl field test on the formed a us, then, before whether to be cocaine. Id. that revealed un- shoes for blood constitutes a “search” 104 S.Ct. 1652.

der the Fourth Amendment. held that the defen- package had dant’s interest person’s

The outside of shoes while frustrated actions constantly exposed largely worn are to the been the Fourth agents, to whom public. appellant private arrested and When 120-121, incarcerated, apply. Id. at did not police obtained lawful Amendment government The actions of his shoes. 104 S.Ct. 1652. possession of Given legitimate infringed constantly exposed agents of the shoes are outside did government agents could not have because public, visually not, handling and package privacy against of reasonable contents, shoes, anything that its learn inspection inspecting of the on the out- visual analysis clothing prop- Ap- in their of uripersuaded by 9. Court of We are "[i]ndeed, custody, dissenting opinion erly their and peals’ requires that a sub- within perceive what is unreasonable was difficult to sequent test to establish that this search holding examining and as prove about the Once fails reasonable. personal of the accused privacy legitimate, evidence those effects he is not that his interest already in their lawful protection Amend- that afforded the of Fourth Edwards, legitimate of a lawful arrest.” at his as result ment until the time which 806, at 94 S.Ct. at 1238. privacy The were interest restored. already obtaining had not been during learned not information available to the private search. Id. The Court further eye. held Serology naked DNA are that the chemical test infringed expec- designed to determine presence of of privacy tation that was willing to blood and whether blood matches a recognize as reasonable because the test particular person. It unlikely seems only designed to determine whether a person any can have privacy expectation contraband, powder the white was illegal concerning presence blood his which no has legitimate interest clothing and it seems еven likely less 122-124, in Id. at possessing. 104 S.Ct. society would reasonable a 1652. privacy concerning whether The other case of interest involves an blood matches a known crime victim. inspection of aerial Dow Chemical Plant. comments, join I majori- With these States, Dow Chemical Co. United ty opinion. 106 S.Ct. 90 L.Ed.2d 226 Chemical, In Dow the Environ- (EPA) mental Agency Protection “em- JOHNSON, J., concurring filed opinion. ployed a photographer, commercial aerial floor-mounted, using standard precision JOHNSON, Judge, concurring. camera, mapping aerial take photo- I in judgment concur of the Court. graphs facility from altitudes of I express write separately reservations 12,000, 3,000, 1,200 Id. feet.” at about the breаdth of the holding. 1819. Simple magnification photographs permit would identifica- majority The first considers “whether an power tion of lines as small aas half-inch expectation of any arrestee retains in at diameter. Id. 106 S.Ct. 1819.1 in clothing lawfully taken and inventoried Supreme The Court held that the aerial Ante, by police incident arrest.” 106. inspection was not “search” under the majority The concludes arrestees do Fourth Amendment. 106 S.Ct. retain some level of such situa- stated, The Supreme 1819. Court howev- tions, and then holds that is no there rea- er, a very different case would be son to have a different result than in here presented government if the had used which cases in a search incident to аrrest electronic penetrate “[a]n device to walls of a discovery leads to firearm or con- or windows so as to hear record confi- substance, trolled which would not be sup- ” dential discussions.... Id. (ellipsis pressed. Id. at there 106. inserted). brackets significant between those differences cases Jacobsen, present As case in- case, including and the instant the obvious expectations volves that have a search than being distinctions rather largely by legitimate been frustrated seizure, arrest, incident to being privacy expectation means. Whatever ap- search, inventory being and not general, pellant had his evidence, gun, drug, easily-seen or other in particular, his shoes may which lead to different results. largely legitimate after his frustrated A arrest and the lawful critical whether the search confiscation And, clothing. after appellant’s clothing1 eight days both Jacobsen and Chemical, present Dow authorities in the arrest was incident to his arrest. The capable compares case used a form case technology majority initially however, noted that the 1. References to include power part lines were observable in because his shoes. markings objects of other ‍‌​‌‌​​​​‌​‌​‌‌​​​​‌‌‌​​​‌​‌​‌​​‌​‌​‌​​‌‌‌​‌​‌‌‌​‍distinctive that magnifi- of size could not be that seen under Id. cation. 238 n. 106 S.Ct. 1819.

H3 (1987), under which so- that circumstances existed Marquez subjec- recognize to his ciety рrepared “[t]he in this Court held that war- was which of a sub- reasonable. suspect’s expectation rantless seizure tive arrest, in or sequent Ante, to while at 108. Id. at 284. permissible.” detention is majority’s the conclusion agree I sei- demonstrates that the Marquez While objec- society may arrest suspect’s clothing upon of a zure pri- any of tively the legitimate, question the instant

was I am appellant may have. vacy which appellant’s case is whether the search of majority requires ap- the concerned clothing eight days permissible. later was of pellant to show an Edwards, majority also cites The prevents. the In in a manner that state a war- upheld which case, of instant be- the circumstances clothing ap- rantless seizure defendant’s custody prevented appellant ing state arrest, ten hours after when proximately subjective ex- exhibiting from an actual substitute became available. clothing. his The pectation of 107; Edwards, id. at United States suggests that appeals appellant court of 1234, 1236, 801, 94 could have shown such a belief in Marquez, As L.Ed.2d family or to by asking friends members holding Edwards Court based their on the clothing at detention fa- retrieve his Ante, “plain view” doctrine. at 107. How- cility. by doing appellant so ever, there no view” evi- was such circumstances, exigent would create thus appellant’s clothing dence of blood on or he prevent. the seаrch seeks to justifying in the shoes instant case. may allow Additionally, practice such for Edwards, Marquez on Based similarly different treatment situated apparent appellant’s seizure of inmates, upon depending whether clothing upon legitimate. How- was family willing or members have friends ever, the of appellant’s clothing search was their clothing. and able to retrieve until performed eight days after encourage A to practice better would be arrest, although delay such does not auto- enforcement officials to secure a valid matically render the results search appel- searching search warrant before “[A]n inadmissible. incidental search can сlothing, by sci- physically lant’s either or delayed suspect be and conducted after the testing, subsequently entific a search jailed, has been if least there some appears “incident to arrest.” There doing reasonable basis so.” McCor- why could not no reason a search warrant (3d § mick on 172 at Evidence in cus- Appellant have been obtained. was ed.1972) Edwards). (citing The exigency prevent- there no tody, thus whether there was a reason- thus becomes war- obtaining a search state explanation delay eight days able appellant’s clothing rant. finding justify sufficient to 19, 1995, January until performed was not “in- appellant’s clothing performed January on eight days after his arrest сident'to arrest.” The state offered time Surely this was sufficient explanation, attempt such nor did the state warrant, especially both a secure since justify by the search cause order prop- and court were warrant evidence, believe that clothes were occasions erly obtained two other existed. circumstances instant case. by majority, noted the standard As hearing, Officer by prove legiti- During suppression must which (a) Tabor, County -withthe Harris mate includes detective conduct, that he had Department, an actual testified he exhibited Sheriff’s (b) privacy; obtained a search warrant subjective expectation blood. comments, He further testified the war- With these I concur in the signed rant by magistrate judgment Janu- of the Court.

ary day appellant’s one after

arrest. based upon underly- exhibit, it appears magistrate that the

actually signed this warrant on January

27, 1995, after the testing appellant’s

clothing. This supported conclusion is inclusion of those results tests in

the allegations in the application for the

search County warrant. The Harris Dis- parte Ray PATTERSON, Ex Cecil Attorney’s trict separate Office used a Applicant. court sample order obtain a of appel- 72,866. No.

lant’s hair. Like the search warrant appli- cation, supported the motion request Court of Criminal Texas. for the with allegations order that “blood May 1999. on [appellant’s] shoe ... was determined to be consistent with the complain- that of

ant through DNA analysis.” Given that

the state twice sought judicial authoriza- searches,

tion of other it could not have unreasonably

been judicial onerous seek delayed

authorization ap-

pellant’s clothing. Securing search war-

rant for the of appellant’s clothing

seems to little enough to ask to ensure

the integrity investigation and to challenge

forestall a such this.

Finally, finding that “doubtful

these any appellant situations that would

harbor a belief that inventoried private

items are still to him” and that it is

“nearly certain that would not rec-

ognize belief reason-

able,” majority concludes “[t]his

inevitably leads the conclusion that it is

proper examine test cloth-

ing validly within their control and custo-

dy, regardless of the existence of Ante,

cause or circumstances.”

109. While examination of this

clothing may justified, have been I think it necessary look at the circumstances rely individual ‍‌​‌‌​​​​‌​‌​‌‌​​​​‌‌‌​​​‌​‌​‌​​‌​‌​‌​​‌‌‌​‌​‌‌‌​‍cases rather than on such generalization. broad As the Edwards, stated “the Fourth

Amendment should not be extended to in-

validate the and seizure the cir- Edwards, cumstances this case.”

U.S. 800 at 94 S.Ct. 1234 at added.)

L.Ed.2d (Emphasis

Case Details

Case Name: Oles v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 26, 1999

Citation: 993 S.W.2d 103

Docket Number: 764-98

Court Abbreviation: Tex. Crim. App.