Heitman v. State, 1380-89

Citation815 S.W.2d 681
Decision Date26 June 1991
Docket NumberNo. 1380-89,1380-89
PartiesWilliam Randolph HEITMAN, v. The STATE of Texas.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Robert M. Rose, John H. Hagler, Dallas, for appellant.

John Vance, Dist. Atty., and Sharon Batjer, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

The trial court convicted appellant on his plea of nolo contendere to the offense of possession of methamphetamine with intent to deliver, and he appealed to contest the court's adverse ruling on his motion to suppress the methamphetamine which was discovered during an inventory search of his car. Art. 44.02. V.A.C.C.P. The Court of Appeals affirmed. Heitman v. State, 776 S.W.2d 324 (Tex.App.--Fort Worth 1989). A detailed rendition of the pertinent facts is set out in the Court of Appeals opinion. Briefly, police discovered the appellant slumped forward in his car outside a store at about 5:30 a.m. Officers found a loaded 9mm pistol on appellant and arrested him for UCW. As appellant was transported to jail, the officers inventoried his car and found a locked briefcase in the passenger compartment. The officers "jimmied" open the briefcase and found the methamphetamine. Appellant claims the inventory search violated both the Fourth Amendment and Art. I, § 9. We granted appellant's petition for discretionary review to determine whether either claim has merit.

Without commenting on the correctness of the result reached in the Court of Appeals disposition of the Fourth Amendment claim, we note that cursory treatment was given to the Art. I, § 9 claim. Guided by language in some caselaw and distinguishing language in other caselaw, all from this Court, the Court of Appeals disposed of the Art. I § 9 claim solely by construing it in harmony with the Fourth Amendment. Today we reserve for ourselves the power to interpret our own constitution. We will reverse the decision of the Court of Appeals and remand the case to them for an independent analysis of the state constitutional claim.

We herein confront the question of whether this Court will automatically adopt and apply to Art. I, § 9, of the Texas Constitution the Supreme Court's interpretations of the Fourth Amendment. This Court has repeatedly recognized that Art. I, § 9 of the Texas Constitution and the Fourth Amendment to the United States Constitution are the same in all material aspects. Gordon v. State, 801 S.W.2d 899 (Tex.Cr.App.1990) (plurality); Johnson v. State, 803 S.W.2d 272 (Tex.Cr.App.1990): Bower v. State, 769 S.W.2d 887 (Tex.Cr.App.1989) (plurality), cert. denied 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611; Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988) (plurality); Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983) (Opinion on Remand from the United States Supreme Court); and Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944). The two provisions serve to safeguard individuals' privacy and security against arbitrary invasion by governmental officials. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1979), and Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976).

Under our system of federalism, however, the states are free to reject federal holdings as long as state action does not fall below the minimum standards provided by federal constitutional protections. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Likewise, a state is free as a matter of its own law to impose greater restrictions on police activity than those the Supreme Court holds to be necessary upon federal constitutional standards. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). Although recognizing these precepts of federalism, see e.g. Brown v. State, 657 S.W.2d 797, 799 (Tex.Cr.App.1983) (Opinion on Remand from the United States Supreme Court); Gillett v. State, 588 S.W.2d 361, 367 (Tex.Cr.App.1979) (Roberts, J., dissenting), this Court has not chosen to interpret Art. I, § 9 in a manner that accords the citizens of this State greater protections than those accorded by the Fourth Amendment. 1 We write today to finally resolve this question of interpretation of our state constitution, and we first review the prior decisions of this Court on this issue.

Crowell, 180 S.W.2d 343, is one of the earliest cases from this Court to note the textual similarity between Art. I, § 9, and the Fourth Amendment. 2 The appellant in Crowell challenged the legality of a search of his residence on both state and federal constitutional grounds. The Court first addressed the federal constitutional provision and after reviewing three Supreme Court cases, the Court held the appellant's Fourth Amendment rights were not violated. As to the state constitutional issue the Court merely stated it "sustain[ed] the same conclusion under Art. I, Sec. 9 of our State Constitution" and cited four prior Texas cases as authority. Stach v. State, 97 Tex.Cr.R. 280, 260 S.W. 569 (1924); Eversole v. State, 106 Tex.Cr.R. 567, 294 S.W. 210 (1927); Hunter v. State, 111 Tex.Cr.R. 252, 12 S.W.2d 566 (1928); and Taylor v. State, 120 Tex.Cr.R. 268, 49 S.W.2d 459 (1932). None of these cases held Art. I, § 9, was to be interpreted in conformance with the Supreme Court's interpretations of the Fourth Amendment. Thus the apparent seminal case with this holding, Crowell, is based neither on stare decisis nor legal reasoning (save the observation concerning similarity of wording).

In Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978) (panel opinion), an inventory search case, the appellant challenged the police inventory of his car under both the federal and state constitutions. This Court noted in footnote 1, id. at 48, that the Texas and United States Constitutions both served the same purpose of protecting individuals against arbitrary government invasion. The Court discussed inventory searches in the context of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), without further reference to the Texas Constitution. By implication, the Court treated inventory law in Texas consistently with the protections afforded that subject under federal law.

In Gill v. State, 625 S.W.2d 307, 318-19 (Tex.Cr.App.1981) (opinion on State's motion for rehearing) (overruled in part, Osban v. State, 726 S.W.2d 107 (Tex.Cr.App.1986)), the Court again referred to the Texas Constitution: "In short, the expression, 'inventory search,' is not a talisman in whose presence the Fourth Amendment or Art. I, Sec. 9, of the Texas Constitution fades away and disappears." We concluded that the inventory search of a locked trunk was improper under both the Texas and United States Constitutions but did not expressly conclude that the Texas Constitution would be interpreted in accordance with the United States Constitution.

In Brown, 657 S.W.2d 797, this Court was squarely presented with the issue that confronts us now. Quoting Crowell, 180 S.W.2d at 346, this Court noted Art. I, § 9, and the Fourth Amendment were "in all material aspects, the same" and implicitly found the two provisions protected the same interests. Thus, the Court "decline[d appellant's] 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," Brown, 657 S.W.2d at 798, even though the Court recognized it was free to do so, see Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), and that the State had established, in the past, stricter, more protective provisions. 3 This decision in Brown, however, did not garner a majority vote from this Court. Judge Odom only concurred in the result, while then Presiding Judge Onion and Judge Miller joined Judge Clinton's concurring opinion which only joined the judgment of the court. Judge Clinton opined that by gratuitously saying this Court would interpret our state constitution "in harmony with constructions placed on the Fourth Amendment by the Supreme Court of the United States, ... the citizens of this State [are deprived] of protections against invasion of privacy reasonably flowing from Article I, § 9, and other guarantees in our own Bill of Rights." Brown, 657 S.W.2d at 800 (Clinton, J. concurring). Judge Teague dissented to the plurality's "implicit holding that the members of this Court now have the role of being nothing more than mimicking court jesters of the Supreme Court of the United States ..." Id. at 810 (Teague, J. dissenting).

In spite of this language in Brown, the Court again implied in Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983), but did not expressly hold, that our state constitution would be interpreted in harmony with comparable federal provisions. Here, the appellant challenged an inventory search under both the Texas and United States Constitutions. After this Court considered the facts, we held that the inventory search was authorized under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, and did not a violate either the United States or Texas Constitutions. 4

It appeared the "interpretation issue" was resolved by this Court in Osban v. State, 726 S.W.2d 107 (Tex.Cr.App.1986), wherein a majority of this Court finally accepted the language from the plurality opinion in Brown, 657 S.W.2d at 799, by stating:

... [T]his Court has opted to interpret our Constitution in harmony with the Supreme Court's opinion interpreting the Fourth Amendment. We shall continue on this path until such time as we are statutorily or constitutionally mandated to do otherwise.

Osban, 726 S.W.2d at 111. This Court, however, then retreated from this position in Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988), wherein the majority adopted the totality of the circumstances test from Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for...

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