770 S.W.2d 930 (Tex.App. - San Antonio 1989), 04-87-00443, Moberg v. State

Docket Nº04-87-00443-CR, 04-87-00444-CR.
Citation770 S.W.2d 930
Party NameRay MOBERG, Appellant, v. The STATE of Texas, Appellee.
Case DateMay 10, 1989
CourtCourt of Appeals of Texas

Page 930

770 S.W.2d 930 (Tex.App. —San Antonio 1989)

Ray MOBERG, Appellant,

v.

The STATE of Texas, Appellee.

Nos. 04-87-00443-CR, 04-87-00444-CR.

Court of Appeals of Texas, Fourth District, San Antonio

May 10, 1989

Rehearing Denied June 7, 1989.

David R. Weiner, San Antonio, for appellant.

Fred G. Rodriguez, Tina Tussay, Jay Brandon, Criminal Dist. Attys., San Antonio, for appellee.

Before PEEPLES, BIERY and CARR, JJ.

OPINION

PEEPLES, Justice.

After the trial court denied his motions to suppress the fruits of a search, appellant Ray Moberg pleaded guilty to two separate charges of sexual assault of a child. Pursuant to a plea bargain, he was sentenced to consecutive twenty-year terms for each offense. Having preserved his right to appeal the court's rulings, he contends that the motions to suppress should have been granted, and that without the unlawfully seized pictures and the evidence developed as a result of their seizure, the evidence is insufficient. We uphold the trial court's rulings on the motions to suppress and affirm the convictions.

Both complainants, S.B. and L.F., are young girls who were respectively three and five years old when the offenses occurred. In February of 1985, Moberg enticed and kidnapped S.B. while she was playing, sexually abused her, made photographs of the sexual events, and returned her to her neighborhood, where she was eventually reunited with her family. Moberg did the same thing to L.F. in May of 1985. Each case went unsolved until January 1987, because the police could not identify the perpetrator.

In the early hours of January 11, 1987, the police arrested Moberg at a motel pursuant to a valid arrest warrant involving an entirely separate offense--aggravated sexual

Page 931

assault of his teenage daughter. After Moberg had been taken to the police station, the officers returned to the motel room at approximately 4:00 a.m., were allowed entry by the manager, and removed Moberg's belongings, including a suitcase, an ice chest, a laundry basket, and various items of clothing. All of these things were inventoried and taken to the police department's property room. The laundry basket contained 94 photographs, some simply showing nude young girls and other showing a male engaged in sexual activity with various young girls. Even though Moberg was staying alone in the motel room and had rented it for only one night, he did not ask the police or the motel manager to turn over his belongings to anyone, nor did he otherwise ask to make arrangements for their safekeeping. Several days later, investigators identified L.F. and S.B. from the pictures, and ultimately the charges involved in the present appeals were brought.

Moberg argues that (1) the search was illegal, (2) without the photographs obtained during the search, the S.B. and L.F. cases would not have been solved, and (3) therefore the evidence to convict him of these two offenses is tainted, requiring that the convictions be reversed. We hold that the search was lawful, and therefore we affirm the convictions.

The State defends the rulings below on several grounds, 1 but we address only two. The State contends that the photographs were validly obtained through an inventory search. Moberg argues that inventory searches pertain only to vehicles and not to motel rooms, which are the equivalent of homes and other permanent dwellings. Our examination of the authorities shows that Moberg's conception of inventory searches is too narrow, and that his notion of the expectation of privacy in a motel room rented for one night from which the arrestee has been lawfully removed is too expansive.

Some of the cases upholding inventory searches have involved impounded automobiles, but others have involved luggage and other belongings in the possession of an arrestee. See, e.g., Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (search of backpack found in defendant's van); Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (search of arrestee's shoulder bag); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (search of glove compartment of impounded abandoned automobile). The Texas courts have approved the procedure in cases that involved automobiles. See Gauldin v. State, 683 S.W.2d 411, 415 (Tex.Crim.App.1984); Wooldridge v. State, 696 S.W.2d 252, 254 (Tex.App.--San Antonio 1985, pet. ref'd).

Lafayette expressly applied the inventory search concept to "any container or article in [the arrestee's] possession." 462 U.S. at 648, 103 S.Ct. at 2610. In addition to cases concerning automobiles and luggage carried by the arrestee, one recent case has upheld an inventory search of a hotel room after its occupant was arrested. See United States v. Pryor, 652 F.Supp. 1353, 1370-72 (D.Me.1987). We believe that under the facts of this case the inventory search was proper as applied to the arrestee's property from which the arrest had separated him, and which might not have been properly itemized and cared for if the arresting authorities had not taken protective action.

By their very nature inventory searches take place only when a suspect is lawfully in...

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2 practice notes
  • 801 S.W.2d 137 (Tex.App. - San Antonio 1990), 04-90-00079, State v. Garcia
    • United States
    • Texas Court of Appeals of Texas
    • October 17, 1990
    ...kind of identification, not even a driver's license, so the officer appropriately refused to release the car to her. In Moberg v. State, 770 S.W.2d 930, 932-33 (Tex.App.--San Antonio 1989, pet. granted), Justice Peeples, speaking for the court stated: Nothing in the constitution requires th......
  • 810 S.W.2d 190 (Tex.Crim.App. 1991), 1119-89, Moberg v. State
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • January 16, 1991
    ...room wherein he had been a guest. The court of appeals rejected appellant's contentions and affirmed his convictions. Moberg v. State, 770 S.W.2d 930 (Tex.App.--San Antonio 1989). In the court of appeals, as well as in this Court, appellant contends that the search of the motel room violate......
2 cases
  • 801 S.W.2d 137 (Tex.App. - San Antonio 1990), 04-90-00079, State v. Garcia
    • United States
    • Texas Court of Appeals of Texas
    • October 17, 1990
    ...kind of identification, not even a driver's license, so the officer appropriately refused to release the car to her. In Moberg v. State, 770 S.W.2d 930, 932-33 (Tex.App.--San Antonio 1989, pet. granted), Justice Peeples, speaking for the court stated: Nothing in the constitution requires th......
  • 810 S.W.2d 190 (Tex.Crim.App. 1991), 1119-89, Moberg v. State
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • January 16, 1991
    ...room wherein he had been a guest. The court of appeals rejected appellant's contentions and affirmed his convictions. Moberg v. State, 770 S.W.2d 930 (Tex.App.--San Antonio 1989). In the court of appeals, as well as in this Court, appellant contends that the search of the motel room violate......