Court of Criminal Appeals
No. PD-0722-19 9/23/20
Is a warrantless search of an individual’s luggage justified as a search incident to arrest even though the search occurred after the individual was handcuffed, moved to a new location inside the airport, and had no access to his bag?
Yes. When an arrestee is in actual possession of a receptacle at the time of, or reasonably contemporaneously to, his custodial arrest, and that receptacle must inevitably accompany him into custody, a warrantless search of that receptacle at or near the time of the arrest is reasonable under the Fourth Amendment as a search incident to the arrestee’s person. Such a search requires no greater justification than the fact of the lawful arrest itself. Application of this principle does not turn on the specific nature or character of the receptacle, but merely on whether it was in the arrestee’s possession at the time of arrest and whether it would inevitably accompany him into custody. Read Opinion.
Dissenting (Keller, P.J.):
“There is still the question of whether the requirements of the inventory-search doctrine would have been met if a search had been conducted at the station. In order for police to validly search a closed container during an inventory search, the arresting agency must have a policy or established routine authorizing such a search. The court of appeals’s statement that ‘the fact that the suitcases would have been inventoried when they accompanied [the defendant] to jail did not authorize their search at the airport office’ seems to assume that a valid inventory search would have been conducted, but the court of appeals does not appear to have actually addressed the issue. I would remand the case to the court of appeals to do so. I respectfully dissent.” Read Opinion.
Dissenting (Newell, J., joined by Hervey, J.):
“I acknowledge that the search at issue in this case might have been justified as a ‘present’ inventory search rather than as an ‘inevitable’ one, if that was what occurred. But that theory requires proof of an established departmental policy to inventory such property at the airport as well as proof that the policy was followed. The State did not make that argument to the trial court and the record doesn’t support it. I would not remand the case for the court of appeals to address an argument that the State isn’t even making. I would simply affirm the court of appeals opinion and wait for a case in which the issue is squarely presented. With these thoughts, I respectfully dissent.” Read Opinion.
Dissenting (Walker, J.):
“Today, this Court holds that a warrantless search of an individual’s luggage is justified as a search incident to arrest even though the search occurred after the individual was handcuffed, moved to a new location, and had no access to his bag. Because the purpose of the search incident to arrest exception is officer safety and evidence preservation, and neither purpose was threatened here, I disagree with the Court’s decision. Moreover, because there is no exception to the warrant requirement that can justify the search that occurred in this case, I believe this warrantless search was unreasonable and thus violated [the defendant]’s Fourth Amendment right to be free from unreasonable searches and seizures. Accordingly, I respectfully dissent.” Read Opinion.
One reason that there are four opinions in this case and a 5-4 split is Texas’s inflexible statutory exclusionary rule. Had the case been prosecuted in federal court there would be no litigable issue. The federal approach to the exclusionary rule does a better job of balancing the protections of the constitution against good faith actions of law enforcement.
Texas Courts of Appeals
Nos. 01-20-00276-CR; 00277-CR; 00338-CR through 00343-CR 9/17/20
Does the Harris County District Attorney have the statutory authority to file a state’s appeal from the inferior courts of Harris County, specifically, the county criminal courts at law?
Yes. Under Code of Criminal Procedure Art. 44.01(i), the “prosecuting attorney” for these appeals is the Harris County District Attorney because she “has the primary responsibility of prosecuting cases” in County Criminal Court at Law No. 8 of Harris County—where all the cases arise from. As the “prosecuting attorney,” it is her responsibility to “make an appeal” within 20 days of the date of the trial court’s order, which she did. Because the Harris County District Attorney timely filed notices of appeal from the county criminal court at law’s judgments in this case, the Court’s jurisdiction was properly invoked. Read Opinion.
It remains to be seen what the 14th Court of Appeals, the co-equal court, has to say about this issue.
No. 14-19-00386-CR 9/15/20
During the defendant’s punishment phase, was a 2002 police offense report describing an assault committed against the defendant’s wife—the decedent—erroneously admitted over the defense’s hearsay objection?
Yes. The Court concluded that if a police offense report (not included as part of a pre-sentence investigation) is offered into evidence during a jury punishment trial and the opponent objects on hearsay grounds, the proponent must establish the report’s admissibility through a sponsoring witness or applicable hearsay exception. Under Code of Criminal Procedure Art. 37.07 §3(a)(1), the court will evaluate whether the report, having been proven, is “relevant to sentencing.” Because the defendant timely asserted a hearsay objection to the police offense report and because the State did not establish its admissibility through a witness or by an applicable hearsay exception, the trial court erroneously admitted the offense report. Read Opinion.
Texas appellate courts at this time are very much devoted to textualism, and the State’s argument here that Article 37.07 dispensed with the Rules of Evidence during the punishment phase will test that devotion. Article 37.07 has been the battleground of much litigation involving textualism and purposivism and legal interpretation. See generally Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts at 3-28. The Court of Criminal Appeals should review this case and tell us whether the statute means what it says. The court’s harm analysis is weak—the defendant shot his wife at point-blank range, lied about it, and other admissible evidence showed his volatile nature and violence against her (and his children) on multiple occasions. This was a life case even without minor details of a misdemeanor assault that was otherwise properly proved up.