Bray v. State, 57918

• Citation: 597 S.W.2d 763
• Decision Date: 09 January 1980
• Docket Number: No. 57918,No. 1,57918,1
• Parties: David Glenn BRAY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 763

597 S.W.2d 763

David Glenn BRAY, Appellant, v. The STATE of Texas, Appellee.

No. 57918.

Court of Criminal Appeals of Texas,

Panel No. 1.

Jan. 9, 1980.

Rehearing Denied May 14, 1980.

DeEdward J. Greer, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, and J. Michael Wilkinson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ONION P. J., and ROBERTS, and CLINTON, JJ.

OPINION

ROBERTS, Judge.

The appellant was found guilty of possession of heroin. Having twice previously been convicted of felonies as alleged, he was sentenced to confinement for life. He argues that the trial court erred in admitting into evidence the heroin (and a syringe) because it was discovered through an unlawful search. The State argues that the search was proper under the "emergency" doctrine.

The emergency doctrine is an exception to the general, constitutional prohibitions of searches by officials without a warrant from a magistrate. A warrantless search may be justified by a need to act immediately to protect or preserve life or to prevent serious injury. Thus, fire fighters do not need a warrant or consent to enter a burning building. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). Officers may search the pockets of an unconscious person for identification, names of relatives and physicians, and medical history. Tijerina v. State, 578 S.W.2d 415 (Tex.Cr.App.1979); Perez v. State, 514 S.W.2d 748 (Tex.Cr.App.1974). Officers may enter a building where a "body" has been reported, for the report of death may be inaccurate and it may be possible to revive the body. Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973).

Of course, emergencies are inherently temporary; they come to an end. For example, the fact that fire fighters once could have made a warrantless entry into a burning building to extinguish a fire and determine its cause does not mean that officers can make a warrantless entry 25 days later to investigate. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). And, as we noted in Corbett v. State, 493 S.W.2d 940, 947 (Tex.Cr.App.1973):

* * * Not every report of a homicide or violent injury gives rise to the operation of this exception to the Fourth Amendment requirement of a warrant to enter and search a house. Often, there are circumstances which vitiate the need for quick response by the police, and take the problem completely out of the emergency context.

One of these situations occurred in Root v. Gauper, 438 F.2d 361 ((8th) Cir. 1971). The police learned of a shooting from the telephone operator who had handled the victim's call for an ambulance. The police immediately drove towards defendant's home where the shooting had occurred, and they passed the ambulance with the victim on its way to the hospital. The officers proceeded to the premises anyway, entered, and made an investigation. In affirming the grant of defendant's application for post conviction habeas corpus, the court held that no emergency existed when the officers arrived. They knew the victim was no longer in the house, and they, therefore, had no reason to enter without a warrant.

Courts must use an objective standard of reasonableness in assessing an officer's belief that a warrantless search or entry was justified by an emergency. Root v. Gauper, 438 F.2d 361 (8th Cir. 1971); W. La Fave, 2 Search & Seizure, Section 6.6(a) (1978). The burden of proof is on the State to show that the warrantless search or entry fell within the emergency doctrine. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). ¹ Having set out the basic rules of law, we may now approach the facts of this case.

It seems that the fire department in Houston was involved in dispatching ambulances. If a call for an ambulance involved "anything the police department is required to investigate," the fire department's dispatcher would not only send an ambulance; he also would communicate with the police department, which would send a police officer to investigate. On June 20, 1976, Officer R. B. Johnson was patrolling in his police car when he received a call from his dispatcher. The rest of the story may be told in the words of his testimony. ²

The call that I received from my dispatcher was to go by with the ambulance in regards to an overdose, possible DOA. My dispatcher calls out my radio number. When I answer him, he says, "Make an ambulance call, Max. There is an overdose there, possible DOA." It was an ambulance call regarding the DOA overdose, which requires us to go there and make an investigation. Well, in a case of an overdose, we are obligated to investigate it as to the source of the problem. Well, sir, it is normal to go to the source of the call. By the source, I mean the individual that was in distress to warrant such a call. I had to go and make contact with the person who the call was in regard to and investigate the extent of the overdose, or whatever situation was there. Due to the nature of the call, there was that possibility (that an offense had been committed). I had to anticipate that there was a violation of the law. I am interested in following the proper procedure whenever I come across a victim or just investigate what this started out to be.

(Q: What would be standard police procedure in a case like this if you were refused entry?)

I would request that the person who the ambulance had been called for come to the door and show me that there was no emergency no need for the person to be taken to the hospital.

(Q: What kind of residence was at the address?)

It is a two-story four-apartment frame building behind a frame house with a driveway behind the frame house. There was no one out front but the ambulance and the attendants were in the driveway. I talked to the ambulance attendants who were in the process of leaving. They told me that the man up in the apartment had shot up had injected himself with some type of narcotics or substance that made him very intoxicated, but due to the fact that he was not unconscious or in any serious distress at that time, they were not obligated to load him, but that his condition could deteriorate and for me to advise him if he had any more severe symptoms and recall them to the location, if necessary. There was nothing that they could do immediately for this man. That was a conscious person who had injected something, who had other people there that could seek medical attention for him. That was not an emergency situation, as far as they were concerned. There was nothing they could do in this emergency, but it was my obligation to determine why the emergency had arisen. They advised me that they had had enough contact with the man to where there was evidence that he had recently injected something into his arm. I concluded from their statements that there had been some type of injection. They said he appeared to be high. I honestly don't recall the exact phrase they used. I asked them what his condition appeared to be and they said, "High or intoxicated." I asked them what did they expect his condition to be, and they said they couldn't tell at that time. In a situation like that, there was no telling what would develop, as whatever he had injected took effect. That meant that possibly that whatever had been injected had not taken effect as yet, and it was my obligation to go and determine the defendant's condition.

(Q: Does "shooting up" normally mean injecting illegal substances?)

That's why I am obligated to investigate the situation, to determine the motive for the overdose to determine if it is a suicide attempt, a murder attempt, or just to satisfy one's craving for heroin. Well, they had no knowledge of any exact substance, plus it was not their responsibility to investigate what the substance was; that was what I was there for. Well, sir, they had another call for a medical situation, and it was my obligation to continue to investigate what had originated with my dispatcher. I obtained directions from the ambulance driver, as to where this man was. They said it was upstairs in the apartment on the left. They said (he was) toward the rear of the apartment, and that area is the bedroom and the bathroom. I thanked them and sent them on their way, or they went on their way. I went to determine what effect whatever had been injected was having.

Well, while I was talking to them well, there were several people in the space were we were standing. They were all really excited about the ambulance being there and something was going on up in the apartment. . . . Well, there was several women going back and forth between the two houses, and during one of these passages, the lady who I later determined was this man's mother, was shaking her head, saying more or less, "I can't take this any more. He is going to kill himself with this stuff." I just overheard that. She was in a hurry. She was using the phone at her neighbor's house or the landlady's house, whichever one was in front of the building there, and she was in a hurry to use the phone.

(Q: Were you still concerned only with medical attention?)

I was concerned with completing my investigation. Well, they described his condition and I went in there to see if his physical condition had changed from their description, just as I would if I would go to a scene of some type of disturbance where somebody had heard some loud noise, a woman screaming in the house or something. I would go to that location and knock on the door and if a man peeked around the door and said, "We don't like you," and the next day the woman's sister finds the woman's body beaten to death that was my obligation to satisfy myself what the defendant's condition was, because I was the one that had to make the report, and it would have been a sad thing for me to go back to work the next day and somebody say, "Hey, they found David Bray dead in the...