Hulit v. State

Decision Date16 December 1998
Docket NumberNo. 877-97,877-97
Citation982 S.W.2d 431
PartiesRobert Allen HULIT, Appellant, v. The STATE of Texas
CourtTexas Court of Criminal Appeals
OPINION

WOMACK, J., delivered the opinion of the Court, in which MCCORMICK, P.J., and MANSFIELD, KELLER, and HOLLAND, JJ., joined.

This case calls on us to decide whether the search and seizure provision of the Texas Constitution was violated when a peace officer went to the aid of a motorist who was unconscious in his vehicle on a public highway.

I.

About 2:00 a.m. on April 29, 1995, Officer T.A. Page of the Benbrook Police Department was dispatched to the intersection of the westbound service road of Southwest Loop 820 and Winscott "to assist another officer on an ambulance call. A woman--it was reported that there was a woman possibly having a heart attack in a vehicle at that address." Page was the first officer to arrive. He found a pickup truck "sitting in the inside lane" of the service road, which is marked for a turn lane, about 50 feet back from the intersection. An individual with "long hair in a ponytail" was "slumped over the steering wheel. Just like he was asleep or passed out or possibly had a heart attack or something and was laying over the steering wheel." The truck's engine was running; all the windows were rolled up. There was no other traffic on the road.

Page pulled his marked vehicle around, behind the truck, and activated his emergency lights. The officer's main concerns were "emergency medical concerns at that point to make sure he was alive and well." Like all Benbrook police officers, Page was a "first responder unit trained in CPR and first aid." It was a philosophy of the police department to be "service-oriented" and "help the community out." Officers used "citizen assist cards" to record such activities.

Page got out of his vehicle, walked up to the truck, and started rapping on the window to try to awaken the driver, who he could now see was a man. At first the driver did not respond at all. Another officer, Doug Bird, arrived, and both officers kept rapping at the window and yelling at the driver to wake up. "He eventually woke up and pulled the handle on the door and opened the door." The driver seemed to be disoriented, and Page smelled an odor of alcohol about him. The driver said "he was okay, things like that." One of the officers asked him to step out of the vehicle, and the driver complied. As he did so, the truck, which had a standard transmission that was not in gear, began rolling backward.

The officers began an investigation for DWI. The parties stipulated that the driver was the appellant, and that at a trial the State would offer additional testimony about the investigation that the State "would not be able to elicit in fact but for the initial detention."

The appellant was indicted for the offense of driving while intoxicated which was enhanced by two previous DWI convictions. See Penal Code §§ 49.04 & 49.09(b). He filed a written motion to suppress evidence "because of the violation of the Defendant's rights against unreasonable search and seizure solely under Tex. Const. Art. I, Sec. 9, 10 and 19; and Tex.Code Crim. Proc. Ann. Arts. 1.04, 1.05, 1.06, 38.21, 38.22 and 38.23." The appellant withdrew an earlier motion which had invoked both state and federal constitutions. He told the trial court that "the Texas Constitution and law are the only issues that are before the Court in this motion."

The trial court denied the motion to suppress evidence after hearing the testimony and stipulations which we have summarized. The appellant waived trial by jury and pleaded guilty. The court assessed a sentence of 5 years' imprisonment, suspended for a period of 10 years, and a fine of $1,250. The sentence did not exceed the recommendation of the State, to which the appellant and his attorney had agreed. This appeal is based on the trial court's denial of the appellant's motion to suppress evidence. The Second Court of Appeals affirmed. Hulit v. State, 947 S.W.2d 707 (Tex.App.--Fort Worth 1997).

We granted review of the appellant's ground that the lower courts were in error "because there is no 'community caretaking function' exception to the warrant requirement under Texas law." Appellant's Petition at 4.

II.

It is well to make clear at the start what is in issue, and what is not. The trial court ruled that the appellant was detained when the officers asked the appellant to get out of his truck. The Court of Appeals did not rule on that question of when the detention began, and we have not granted review to consider it. We shall assume, without deciding, that the appellant was seized when he was told to step out of his truck.

Nor is it an issue whether, before the point of seizure that we have identified, there was reasonable suspicion to believe that the appellant was driving while intoxicated (as the trial court ruled), or whether the seizure was based on a reasonable suspicion that a criminal offense was being committed in the officers' presence because of a violation of any section of the Traffic Code, such as those that regulate stopping and standing vehicles on streets and highways. The Court of Appeals made no decision on those issues for us to review.

The Court of Appeals clearly identified the issue as whether, "when an officer reasonably believes that the safety of an individual, or the public, is threatened, he may perform a 'community caretaking' function, unrelated to the detection or investigation of crime, by detaining the individual without a warrant." Hulit v. State, 947 S.W.2d at 709.

Less clear was that court's basis for resolving the issue. The Court of Appeals correctly pointed out that the appellant expressly waived any complaint under the federal constitution and statutes, and was proceeding under the Texas Constitution. Ibid. The Court of Appeals also criticized the appellant for erroneously summarizing one of our opinions on the state constitution, and for failing to adequately brief his state constitutional ground. Ibid. The Court refused to "make an argument for appellant" as to why the state constitution would provide more protection. Id. at 709 n. 3. And it said it would "only consider his state jurisprudential arguments." Id. at 709. This language could, but we think should not, be construed as saying that the Court of Appeals would not consider the appellant's state constitutional ground, and that it was resolving the case on non-constitutional state jurisprudence. There is no self-contained, common law jurisprudence of the right to be free from unlawful search and seizure. There could not be a "state jurisprudential argument" on search and seizure that is not based on some constitutional or statutory provision. We think the Court of Appeals was saying that it would interpret the Texas Constitution in light of the appellant's arguments that were based on state jurisprudence, and that it would not invent any other constitutional arguments for him.

The appellant made it very clear in the district court that he was relying solely on the state constitution and laws. In this court he has narrowed the basis of this argument to the state constitutional provision on search and seizure, summarizing his argument as, "This Court should not adopt as an exception to Tex. Const. Art. I, Section 9 the 'community caretaking' function adopted by the Court of Appeals below." Appellant's Brief at 3.

Therefore we can finally identify the precise issue that is before us: whether Article I, Section 9 of the Texas Constitution was violated by the officers' detaining the appellant without a warrant to determine if he needed first aid, a seizure which the officers made in performance of a community care-taking function, unrelated to the detection or investigation of crime.

III.

Article I, Section 9 of the Texas Constitution recognizes the right of the people to be secure from all unreasonable seizures or searches. To prove that his right under that section was violated, the appellant presents this argument:

Warrantless searches are per se unreasonable unless they fall into a recognized exception to the warrant requirement. [Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) ]. It is well settled that the exceptions to the warrant requirement require the existence of probable cause and an exigent circumstance to be valid. Id. The alleged "community caretaking function" requires no such exigent circumstances or probable cause and thus is not a legitimate exception to the warrant requirement. [H]ence any arrest, search and seizure based thereon is per se unreasonable.

Appellant's Brief at 14 (citation omitted).

The first sentence of the appellant's argument makes three distinct assertions: There is a warrant requirement in the constitution; there are recognized exceptions to the warrant requirement; warrantless searches are per se unreasonable if they do not fall within a recognized exception. We need not decide at this point whether these assertions are the actual holdings of the Supreme Court in Harris, or whether they have been altered by the jurisprudence of the past 50 years, or even the relevance of a holding about searches in a case about seizures. 1 Harris is about the Fourth Amendment to the United States Constitution, and we have "expressly conclude[d] that this Court, when analyzing and interpreting Art. I, § 9, Tex. Const., will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue." Heitman v. State, 815 S.W.2d 681, 690 (Tex.Cr.App.1991). To decide whether the appellant's argument is correct, we must decide whether his assertions are true for the Texas Constitution.

The appellant argues that the warrant requirement of the Texas Constitution was violated when he...

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