Mayberry v. State

• Decision Date: 26 November 1975
• Docket Number: No. 49840,49840
• Citation: 532 S.W.2d 80
• Parties: Thomas Edward MAYBERRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 80

532 S.W.2d 80

Thomas Edward MAYBERRY, Appellant, v. The STATE of Texas, Appellee.

No. 49840.

Court of Criminal Appeals of Texas.

Nov. 26, 1975.

On Rehearing Feb. 4, 1976.

John Rapier and Malcolm Dade, Dallas, for appellant.

Henry Wade, Dist. Atty., and Steve Wilensky, Fred Davis and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

Appeal is taken from a conviction for possession of heroin. After the jury returned a verdict of guilty, punishment was assessed by the court at sixteen years.

On December 10, 1971, Officers Walker, Avey, and Barnett went to a residence at 4152 Prescott Street in Dallas after having been advised that this was the address of one Ed Weaver. They were seeking Weaver by reason of information they had received that Weaver had purchased a stolen television set. Upon knocking at the door at the address in question, a person later identified as James E. Goodman, alias Norris Paul Dittrick, opened the door. Goodman, in response to the officers' questions, stated that he did not live there and he did not know if Ed Weaver lived there. Goodman told the officers 'Old Tom pays the rent' and 'Old Tom will know where Ed is at.' The officers then asked, 'Could we talk to Old Tom?' While there is conflict among the officers' testimony as to what, if anything, was said at this juncture, all three officers testified that Goodman motioned with his hand for them to follow him. The three officers entered the living room and Barnett testified that Goodman motioned to him a second time to follow him. Barnett entered the kitchen behind Goodman and observed appellant cutting or slicing a white substance that appeared to be heroin. A lab analysis of the powder seized from the table in the kitchen revealed that the substance contained heroin and morphine.

I.

Appellant first urges that Goodman did not have the authority to consent to a search of appellant's residence. The State counters that the officers merely seized evidence in plain view after being lawfully invited onto the premises, and that no search took place. Justification for this view can be found in Alberti v. State, 495 S.W.2d 236 (Tex.Cr.App.1973), where the seizure of marihuana in plain view inside defendant's apartment was upheld since the defendant, responding to the officers' knock at his door, had invited them to come in. In Alberti, this Court wrote:

'We recognize that it has long been the rule in this jurisdiction that an invitation to officers to enter a residence ordinarily cannot be construed as an invitation or consent to Search. Robertson v. State, 375 S.W.2d 457 (Tex.Cr.App.1964). However, that case and many others have recognized that officers invited in are not trespassers and have a right to seize articles in open view.' (Citations omitted).

The distinction between a search and mere entry of a person's dwelling is thus established. But the discovery of the heroin in this case cannot be justified on the basis of Alberti. The issue of authority to consent to a mere entry of a dwelling was not present in either Alberti, supra, or Robertson, supra, because the invitation to officers to enter the dwelling was in both cases given by the defendant who was a resident there. Those cases can be taken to mean only that mere entry is a lesser intrusion than a search, but not that mere entry is no intrusion at all. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Simply because officers merely entered appellant's residence pursuant to Goodman's invitation does not mean that the Fourth Amendment is inapplicable. Reliance on magic words such as 'search' is misplaced. Cf. Terry v. Ohio, supra. The Fourth Amendment protects not only against unreasonable searches and seizures but against any invasion of a person's reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (especially concurring opinion of Harlan, J.); Mancusi v. Deforte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972), and Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). There is not much dispute that a person is entitled to a reasonable expectation of privacy in his own home. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Appellant in the instant case was discovered cutting heroin in the kitchen of his own home, out of view of passers-by and even others in the house. Surely it cannot be said that he had no reasonable expectation of privacy. Therefore, the Fourth Amendment was not inapplicable.

The question then becomes, did Goodman have authority to waive appellant's Fourth Amendment protections. I cannot subscribe to the State's contention that any unauthorized third person might consent to mere entry of another's house, simply because it is a lesser intrusion than a search. Such a holding makes serious inroads into our Fourth Amendment protections.

The cases of United States v. Mattlock, 476 F.2d 1083 (7th Cir. 1973), rev'd on other grounds, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), and the annotations at 31 A.L.R.2d 1078 discuss authority for consent to search and provide a good starting point for the inquiry in the instant case. These authorities make it clear that third persons can give consent to search premises only when they have rights of control or use of the premises concomitant to those of the owner's. Mattlock states that this authority to consent to a search consists of both a reasonable appearance that such authority exists and facts existing just prior to the search showing actual authority to consent. Goodman lacked authority to consent to a search under either of these tests. The record shows that Goodman did not live at the house, that he did not even know if Ed Weaver did live there, and that he communicated these facts to the officers prior to his invitation for them to enter.

The case of Illinois v. Dent, 371 Ill. 33, 19 N.E.2d 1020 (1939) is close to the facts in the present case. There, police knocked on defendant's door and entered the house when defendant's companion said, 'Come in.' They found defendant and her companion sitting at a table with a policy book, numbers, and betting slips spread out before them. A majority of the Illinois Supreme Court held that the materials thus seized were inadmissible and said that there must be a showing that the companion's invitation to the officers to enter the premises was specifically authorized by the resident defendant. The Court added that a person's Fourth Amendment rights are personal and cannot be waived indiscriminately by anyone else without doing violence to the constitutional principle.

Perhaps it should be held that a third person needs as much authority to waive an owner's protections against mere entry as he would need to consent to a search. But we need not go that far in this case. The officers' entry into appellant's house, although not as intrusive as a search, was nevertheless a lesser invasion of appellant's reasonable expectation of privacy. As such, it could not be authorized by Goodman, whose lack of authority to give such permission was not only a fact but was known to the officers. To hold otherwise would be to hold that Anyone could give consent to police officers merely wishing to enter another person's home.

II.

Reversal of this conviction is also mandated by prejudicial prosecutorial argument in this case. At the guilt-innocence stage of the trial, the following proceedings transpired 'MR. DAVIS (Prosecutor): I think common sense, and certainly a reasonable deduction from the evidence about how heroin is packaged, how it's sold, what it sells for, tells you that it results in more crime in this community; that people do anything to get heroin, that this man . . .

'MR. CHITWOOD: Your Honor, I again object to this argument here. There is no evidence here whatsoever as to the effect of heroin on crime in Dallas County.

'MR. DAVIS: I will withdraw it.

'THE COURT: Overruled.

'MR. CHITWOOD: Note my exception.'

The prosecutor's references to the p packaging and selling of heroin might well have been a reasonable deduction from the evidence about the amount of heroin found, the cellophane wrappers and tape also found, the heroin that was already packaged, and the cost of heroin on the street. This type of deduction from the evidence was approved in Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1974). But the contention that '. . . it results in more crime in this community; that people do anything to get heroin . . .' takes the argument beyond the type of deduction permitted in Powell. And reading the statements together produces a meaning different from that which could legitimately be deduced from the evidence. The crime increase being referred to is not an increased incidence of heroin sales by this appellant, but rather the crime against persons and property allegedly committed by people needing to buy the heroin.

This argument falls squarely within the prohibitions of White v. State, 492 S.W.2d 488 (Tex.Cr.App.1973) wherein this Court held that a prosecutor's argument that sixty per cent of the crime in Dallas County was attributable to narcotics constituted reversible error. The only practical difference between the arguments in the two cases is that 'sixty per cent' is a more precise figure than the general allegation of 'more crime' in Dallas County.

In Rodriquez v. State, 520 S.W.2d 778 (Tex.Cr.App.1975), this Court condemned a similar argument outside the record. On the basis of one sale of heroin to an undercover agent, the prosecutor in Rodriquez argued about 'the lives (Rodriquez) has touched with the heroin he has helped disburse in this county . . . He has touched more lives...