Dissenting Opinion
(dissenting).
I would reverse the Court of Criminal Appeals.
Thomas Taylor was convicted of larceny of two automobile tires and two car wheels. The Court of Criminal Aрpeals reversed his conviction on the ground that the tires and wheels were obtained by an illegal search. Taylor filed a motion to suppress, which included a ground that the State had pro
“A. Henry [Henry O’Mary, deputy sheriff for Lamar County] came into my house with search wаrrant to search for some tires and stolen property, which he showed me a warrant and while he was talking the tires were found and brought around to the front of the trailer and he asked me to come out' and the tires werе there and this guy from Martin Chevrolet was there. They asked me if I had seen them before and I said no and he identified them, I guess, as being his.” [Emphasis added.]
The Court of Criminal Appeals, in its opinion, made a finding that:
“There was no evidence adduced by the State as to the contents of the instrument in the hands of the officer at the time he appеared at defendant’s home.”
It appears to me that the Court of Criminal Appeals may have inadvertеntly overlooked the testimony of Taylor himself to the effect that there was a search warrant and that the officers were looking for “some tires and stolen property.” I think therefore, that the existence of а warrant was adequately shown.
Unquestionably, it was proper for the trial court, upon proof of the loss оf the search warrant, to take parol evidence relating to it. Thomas v. State,
The Court of Criminal Appeals states thаt “For aught appearing, the instrument in the hands of the chief of police was a nullity and the search and seizure violated defendant’s constitutional rights and was without authority of law.” This holding, it seems to me, ignores the fact that therе was sufficient evidence that a search warrant was, in fact, shown to Taylor. Furthermore, it misplaces the burden of proof. The burden of establishing that the search was improper and that the evidence secured thereby shоuld be suppressed was clearly on Taylor, the moving party. United States v. Gera,
“There is one final question. The defendant maintains that he was unfairly prejudiced by being saddled with the burden of proof during his hearing on his motion to suppress evidence. During the hearing the judge stated it was his opinion that defendant, as the moving party, bore the burden of proof. At the end оf the hearing, the district judge stated that he was willing to withdraw his opinion on burden of proof, and, giving the defendant the benеfit of the doubt, he still ruled against the motion to suppress. We see no reversible error.
“As is true in so many other situations, the burdens of persuasion and of producing evidence in motions for the suppression of evidence hаve been badly confused. The burden of persuasion is properly and permanently placed upon the shoulders of the moving party. When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case. Nardone v. United States, 1939,308 U.S. 338 ,60 S.Ct. 266 ,84 L.Ed. 307 ; Joseph v. United States, 5 Cir. 1956,239 F.2d 524 ; Wilson v. United States, 10 Cir. 1955,218 F.2d 754 ; United States v. Walker, supra; United States v. Okawa, D.C.Haw. 1961,26 F.R.D. 384 . In the areas of coerced confessions and illegаl searches and seizures this rule is reinforced by the usual presumption of proper police conduсt. 1 Wharton’s Criminal Evidence 238 (1955); 22A C.J.S. Criminal Law § 589(1), p. 355.
*778 “The moving party must also bear the burden of producing evidence. If the essеntial evidence is not brought to light the motion must fail. It is true, however, that in asserting an illegal arrest the defendant must satisfy this burdеn by showing that the arrest was made without a warrant. While an arrest pursuant to a warrant is prima facie evidence of probable cause, Chin Kay v. United States, 9 Cir. 1962,311 F.2d 317 , 321; Batten v. United States, 5 Cir. 1951,188 F.2d 75 , 77, the prosecutor should be forced to come forward with evidencе of probable cause in the absence of a warrant. Plazola v. United States, 9 Cir. 1961,291 F.2d 56 , 58; Wrightson v. United States, 1951,95 U.S.App.D.C. 390 ,222 F.2d 556 . Without such a rule there would be little reason fоr law enforcement agencies to bother with the formality of a warrant. Furthermore, the evidence comprising probable cause is particularly within the knowledge and control of the arresting agencies.”
In United States v. Various Gambling Devices,
“. . . Since claimant concedes that the seizure was made under warrant, he bears the burden of establishing the illegality of the search. United States v. Crane,445 F.2d 509 (5th Cir. 1971); United States v. Thompson,421 F.2d 373 (5th Cir. 1970), vacated on other grounds,400 U.S. 17 ,91 S.Ct. 122 ,27 L.Ed.2d 17 .”'
Additionally, public officials are presumed to perform their duties. This rule is so well founded, and has bеen a part of our jurisprudence for so long, and is so universally recognized, that it needs no citation of authority. Harris v. State,
For a better understanding of the facts, I examined the original record in this case. Based upon that examination, I believe that the Court of Criminal Appeals erroneously held that the trial court was in error in refusing to grant the defendant’s motion to suppress. Consequently, I would reverse.
I do not discuss the other holding of the Court of Criminal Appeals that the defendant did not have to object, during the trial, to the admission of the tires and wheels into evidence. I do note that the Court of Criminal Appeals refused to follow Carpenter v. State,
Lead Opinion
Writ quashed as improvidently granted.