Brown v. State

• Decision Date: 14 September 1983
• Docket Number: No. 65431,65431
• Parties: Clifford James BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 797

657 S.W.2d 797

Clifford James BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 65431.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1983.

Allan K. Butcher, J. Don Carter, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, William Kane, John Bankston, George Mackey and James J. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

McCORMICK, Judge.

This Court's original opinion and judgment, Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981), were reversed by the Supreme Court of the United States, Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), and the case was remanded for further proceedings.

Appellant now raises two questions and asks that they be resolved:

1. Did this Court rely on the United States Constitution in its decision, or did it look to Article I, Section 9 of the Texas Constitution?

2. If the Court did in fact base its decision on the Fourth Amendment to the Federal Constitution, does the Texas Constitution nevertheless provide an independent basis that would support the Court's conclusion?

In response to appellant's first inquiry, and as noted by the United States Supreme Court, our original opinion rested squarely on the interpretation of the Fourth Amendment in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Texas cases interpreting that decision, e.g., Howard v. State, 599 S.W.2d 597 (Tex.Cr.App.1979); DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977); Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977); and Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973). Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1537-1538, footnote 1, 75 L.Ed.2d 502.

We also answer appellant's second inquiry in the negative, and decline his invitation to attach to Article I, Section 9 of our Texas Constitution a more restrictive standard of protection than that provided by the Fourth Amendment.

The case of Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944), appears to be dispositive of appellant's inquiry. There the accused claimed that certain persons had violated his rights by looking into the open window of his house from their vantage point outside. The accused said this violated either the Fourth Amendment or Article I, Section 9 of the Texas Constitution, and that it also violated the laws concerning trespass, thereby rendering the evidence inadmissible in light of Article 727a (now Article 38.23) of the 1925 Code of Criminal Procedure. In discussing the defendant's contentions, this Court said:

"The constitutional guarantee against unreasonable searches and seizures is designed to protect the private security and sanctity of one's home, and to prevent unlawful invasion thereof. It is not a haven behind which one may seek refuge against prosecutions for violations of the law committed in his home, the evidence and knowledge of which he himself makes no effort to conceal, but permits to be done in the view of the passers-by.

"Art. I, Sec. 9, of the Constitution of this State, and the 4th Amendment of the Federal Constitution are, in all material aspects, the same." 180 S.W.2d at 346.

We recognize that the states are free to accept or reject federal holdings and to set for themselves such standards as they deem appropriate so long as the state action does not fall below the minimum standards provided by the federal constitutional protections. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). We likewise recognize that the State of Texas has, in the past, established stricter, more protective provisions, such as providing for a statutory exclusionary rule (see Article 38.23, supra, and its predecessor) well in advance of the 1961 Supreme Court decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

But it is not the function of the judiciary to engraft such changes upon our Constitution. That function lies with the people of the State of Texas through the constitutional amendment process, and through the Legislature which has the duty and ability to make statutory change in our procedure. Since this Court's pronouncements in Crowell v. State, supra, almost forty years ago, there has been no groundswell to change the provisions of Article I, Section 9. And since that time, this Court has opted to interpret our Constitution in harmony with the Supreme Court's opinions interpreting the Fourth Amendment. We shall continue on this path until such time as we are statutorily or constitutionally mandated to do otherwise.

The judgment of the trial court is affirmed.

ODOM, J., concurs in the result.

CLINTON, Judge, concurring.

The answer given to the first question is correct. ¹ To the second question posed by appellant the plurality quickly, broadly and irrationally responds with an erroneous answer. While it may be that the Texas Constitution does not provide "an independent basis that would support the Court's conclusion" on original submission, ² see, e.g., Rochelle v. State, 107 Tex.Cr.R. 79, 294 S.W. 860, 863 (1927) (Opinion on Rehearing), still we ought not gratuitously to say that the reason there is not "an independent basis" is because we have ³ and "shall continue" to interpret our Constitution "in harmony" with constructions placed on the Fourth Amendment by the Supreme Court of the United States, and thereby deprive the citizens of this State of protections against invasion of privacy reasonably flowing from Article I, § 9, and other guarantees in our own Bill of Rights. Such is a dangerous abdication of judicial duties and responsibilities as Judges of this Court.

The Commissioner's Decision written by Judge Davidson in Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944), the opinion being approved by the Court, does indeed set forth the two paragraphs excerpted by the plurality in the cause at bar. However, a close reading of the opinion will reveal that they are but preliminary, introductory statements that do not constitute a holding. ⁴ Rather, the opinion proceeds to examine separately decisions of the Supreme Court pertaining to application of the Fourth Amendment to a variety of situations ⁵ and several opinions of the Court under Article I, § 9 of the Constitution of Texas treating "open" or "plain" view incidents. ⁶ The holding is:

"We conclude that, in the instant case, the evidence as to what the officer saw transpiring in appellant's home was not obtained as a result of a search thereof, and was not, therefore, in violation of the State or Federal Constitutional guarantees." Id., 180 S.W.2d, at 347.

This is a far cry from a finding that "this Court has opted to interpret our Constitution in harmony with the Supreme Court's opinions interpreting the Fourth Amendment."

We were informed during oral argument that Crowell has not again been cited as authority for the proposition now grasped by the plurality. And a recognized scholar in the field reported as late as February 1981 that this Court has never "indicated that it will interpret article I, section 9 to mean only what the fourth amendment means," Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 Tex.L.Rev. 191, 215. Professor Dawson explained:

"The closest the court has come to taking a position on this question is its observation in Crowell v. State, [supra], that '(article) I, (section) 9, of the Constitution of this State, and the 4th Amendment to the Federal Constitution are, in all material aspects, the same.' "

An "observation" is surely the slenderest of reeds for a plurality to cling to. There are clearer perspectives: One is historical; the other implicates consideration of public policy.

The Constitution of The Republic of Texas contained a Declaration of Rights and mandated that they "shall never be violated on any pretence whatever." The Fifth declaration is:

"The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable searches and seizures, and no warrant shall issue to search any place or seize any person or thing, without describing the place to be searched or the person or thing to be seized, without probable cause, supported by oath or affirmation."

With slight modifications in grammatical structure from time to time, that protection against invasion of privacy has remained essentially the same. See Article I, § 9, Bill of Rights, Constitution of the State of Texas of 1876. While its origin may indeed be traced back to incidents in English and American colonial history, Interpretive Commentary, 1 Vernon's Texas Constitution 251, surely local experiences at the hands of "military commandants," alluded to in the Declaration of Independence of the Republic, ⁷ made constitutional protections even more imperative, and that the safeguards they provided be enforced. ⁸

Early on, if not delineated by their own precedents, out of necessity young Texas courts looked to the common law or took the law from any other reasonably acceptable source. See, e.g., Bush v. The Republic of Texas, 1 Tex. 455 (1846). There is a paucity of opinions delving into criminal law and procedure--much less search and seizure law. See White's Criminal Procedure Annotated (1900) 13-14, Article 5; 1 Paschal's Digest of Decisions (1872) 720-723, §§ 8577-8607. Not until 1876 did the Supreme Court of Texas define "probable cause," and that was in a civil suit for slander, malicious prosecution and duress, Landa v. Obert, 45 Tex. 539 (1876). But the methodology is illustrative, for the court settled on that which had been found by the Supreme Court of Minnesota in Cole v. Curtis, 16 Minn. 182, 195. Landa v. Obert, supra, at 544.

In turn, the definition approved by the Minnesota court was taken from its stated source: Munn v....