Contreras v. State

• Decision Date: 25 June 1992
• Docket Number: 13-90-407-CR and 13-90-408-CR,Nos. 13-90-405-C,13-90-406-C,s. 13-90-405-C
• Citation: Contreras v. State, 838 S.W.2d 594 (Tex. App. 1992)
• Parties: Manuel CONTRERAS, Aka Manuel Vela Contreras, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 594

838 S.W.2d 594

Manuel CONTRERAS, Aka Manuel Vela Contreras, Appellant, v. The STATE of Texas, Appellee.

Nos. 13-90-405-CR, 13-90-406-CR, 13-90-407-CR and 13-90-408-CR.

Court of Appeals of Texas Corpus Christi.

June 25, 1992 Rehearing Overruled Sept. 17, 1992 Discretionary Review Refused (Appellant) Jan. 27, 1993 Discretionary Review Refused (State) Jan. 27, 1993.

Mark Alexander, McAllen, Ricardo Floes, Edinburg, for appellant.

Rene Guerra, Dist. and County Atty., Theodore C. Hake, Asst. Dist. Atty., Edinburg, for appellee.

Before NYE, C.J., and SEERDEN and GILBERTO HINOJOSA, JJ.

OPINION

SEERDEN, Justice.

On the night of March 2, 1989, a man broke into the home of C. and D. Garcia, an elderly Edinburg couple. Before he left, the intruder beat C., forced D. to engage in sexual intercourse, and robbed them of some money. For these acts, appellant was charged in a four-count indictment with the offenses of burglary, aggravated sexual assault, robbery, and injury to an elderly individual. A jury found him guilty on all counts and assessed prison terms of twenty years, ninety-nine years, fifteen years, and ninety-nine years, respectively. We acquit appellant of robbery and affirm the other convictions.

Appellant raises twenty-three points of error which we will group for discussion when possible. At the outset, we will briefly summarize the events culminating in appellant's arrest. We will then address appellant's points, elaborating on the facts when necessary to address his specific contentions.

Between March 1989 and February 1990, six elderly Edinburg women were sexually assaulted during nighttime burglaries of their homes. The offenses occurred under similar circumstances, leading the police to believe that the same individual was responsible for the crimes. Through their investigation of these crimes, the Edinburg Police Department gathered shoe prints, a fingerprint, and blood characteristics of the assailant. Despite this physical evidence, they did not have sufficient information to identify the assailant.

In January 1990, toward the end of the series of assaults, one of the victims was able to see her assailant during the attack, and she made a composite drawing of him. The publication of that drawing led Crime-Stoppers to receive a call which indicated that appellant might fit the description. The police included appellant on a list of suspects, which by this time, according to one officer, included "a lot of people."

The police apparently were unable to locate appellant, but on February 16, Officer Reyes Ramirez talked to appellant's girlfriend. She identified appellant as a person involved in the cases. The record does not indicate what action, if any, the police took to find appellant after talking to his girlfriend.

Nonetheless, early on the morning of February 26, the Hidalgo County Sheriff's Department arrested appellant for a sexual assault apparently unrelated to the offenses then being investigated by the Edinburg Police. The Sheriff's Department notified the police of appellant's arrest, and on that same morning, the police obtained appellant's fingerprints from the Hidalgo County Jail. Officer Luz Gomez worked on the prints most of the morning and determined that appellant's prints matched those taken from one of the crime scenes. After he made the comparison, Gomez informed his supervisor, and they went to the Sheriff's Department where Gomez requested that appellant's shoes be seized for further investigation. Someone at the Sheriff's Department went and retrieved appellant's shoes for Gomez, who then took the shoes for analysis. ¹ The prints from these shoes were found to be similar to some of the prints left at some of the crime scenes. After the fingerprints and shoes were found to compare, the police sought and obtained two search warrants. These warrants led to the discovery of evidence used against appellant at his trial for the offenses against the Garcias.

Seizure of Evidence

In points six, seven, and eight, appellant contends that the trial court should have suppressed any evidence gathered as a result of the Edinburg Police Department's seizure of his fingerprints and shoes from the Hidalgo County Jail. Appellant does not challenge the legality of his arrest but contends that as he was incarcerated in jail, the police had time to obtain, and should have obtained, a warrant to seize these items. Appellant argues that because the warrantless seizure does not fall within a recognized exception to the warrant requirement, the evidence was illegally obtained.

We first address the taking of appellant's fingerprints. The Court of Criminal Appeals has held that relatively unintrusive identification evidence, like fingerprints, line-ups, and handwriting exemplars, gathered without a warrant while a person is in custody after arrest, does not violate the Fourth Amendment. Mulder v. State, 707 S.W.2d 908, 914 (Tex.Crim.App.1986). Appellant's prints were taken at the jail, and the police merely used these prints to compare with prints from the crime scenes. We find no error in the trial court's ruling that the police did not need a warrant to take appellant's fingerprints for comparison, and we turn to the taking of appellant's shoes.

Unlike the fingerprints, the taking of the shoes presents a more complex issue. The Supreme Court of the United States has held that police are not required to obtain a warrant to seize, at the jail, the clothing of a defendant who is lawfully in custody as the result of a lawful arrest. United States v. Edwards, 415 U.S. 800, 806-07, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974).

Edwards was arrested for burglary and jailed in his own clothes. During the course of the investigation, it was learned that paint chips from the point of entry might be on Edwards' clothing. Without a warrant, the police seized and examined the clothing, finding matching paint chips. This evidence was admitted at trial. Edwards, 415 U.S. at 804, 94 S.Ct. at 1237.

Following Edwards, the Court of Criminal Appeals held that the warrantless seizure of a suspect's clothing subsequent to a legal arrest, while he is in custody, is permissible. Marquez v. State, 725 S.W.2d 217, 234 (Tex.Crim.App.1987); see Deal v. State, 508 S.W.2d 355, 357 (Tex.Crim.App.1974).

At first blush, Edwards and its progeny would appear to control the present case. Upon closer review, however, it is not entirely clear that the Edwards line of cases should control. Unlike the present case, Edwards concerned a situation where the personal effects were seized as evidence of the crime for which the defendant was arrested. In the present case, appellant's shoes were seized for use as evidence in an offense unrelated to his arrest. Thus, the exact issue in this appeal is whether the rationale in Edwards, which made the Warrant Clause inapplicable to post-arrest seizures under the facts there, applies when the seizure is unrelated to the arrest. We have found several cases to guide us and find that, at least under the facts of this case, the police were not required to obtain a warrant to retrieve appellant's shoes.

Generally, the courts have held that a lawfully arrested person has no expectation of privacy with respect to such property. See United States v. Thompson, 837 F.2d 673, 674 (5th Cir.1988); Ex parte Hilley, 484 So.2d 485, 490 (Ala.1985); People v. Tyrell, 190 Cal.App.3d 169, 235 Cal.Rptr. 272 (2nd Dist.1987). Other courts have not required the police to obtain a warrant to seize property already in their custody, but they have not expressly articulated a rationale for their holding. See State v. Copeland, 530 A.2d 603 (Conn.1987); State v. Wheeler, 128 N.H. 767, 519 A.2d 289, 292 (1986). ² We have found no post-Edwards case which required the police to obtain a warrant to seize items which were already in their custody and exposed to their view.

As other courts have done, we look to Edwards for guidance. The Court stated:

While the legal arrest of a person should not destroy the privacy of his premises, it does--for at least a reasonable time and to a reasonable extent--take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.

Edwards, 415 U.S. at 808-09, 94 S.Ct. at 1239-40. None of the language in Edwards suggests that the arrested person's privacy rights are "taken out of the realm of protection" for evidence related to the crime which sent him to jail but remain intact for all other purposes. Indeed, the Court only cautioned as follows:

Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of police conduct "must [still] be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." (citation omitted.) But the Court of Appeals here conceded that probable cause existed for the search and seizure of respondent's clothing, and respondent complains only that a warrant should have been secured. We thus have no occasion to express a view concerning those circumstances surround custodial searches incident to incarceration which might "violate the dictates of reason either because of their number or their manner of perpetration." (citations omitted.)

Edwards, 415 U.S. at 808 n. 9, 94 S.Ct. at 1239 n. 9.

With this language in mind, and in view of the other courts which have faced the same issue, we find that the police were not required to obtain a warrant. Here, the search and seizure was made when the police already had identified appellant as a suspect in the sexual assault offenses, when the sheriff's department had arrested him for a similar offense, and when appellant's fingerprints were already found to match prints left at the scene of one of the sexual assaults. Under these circumstances, the seizure of appellant's shoes was reasonable. The trial court correctly held that the...