Moberg v. State

• Decision Date: 16 January 1991
• Docket Number: 1120-89,Nos. 1119-89,s. 1119-89
• Citation: 810 S.W.2d 190
• Court: Texas Court of Criminal Appeals
• Parties: Ray MOBERG, Appellant, v. The STATE of Texas, Appellee.

Page 190

810 S.W.2d 190

Ray MOBERG, Appellant, v. The STATE of Texas, Appellee.

Nos. 1119-89, 1120-89.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 16, 1991.

Rehearing Overruled June 19, 1991.

David R. Weiner, San Antonio (Court appointed), for appellant.

Fred G. Rodriguez, Dist. Atty., Tina Tussay and Jay Brandon, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

The appellant, Ray Moberg, was convicted on his plea of guilty to two separate charges of sexual assault of a child, and assessed punishment by the trial court at consecutive twenty year terms of confinement in the Texas Department of Criminal Justice, Institutional Division. On direct appeal to the Fourth Court of Appeals in San Antonio, appellant challenged the trial court's rulings in denying his motions to suppress evidence seized from a motel room wherein he had been a guest. The court of appeals rejected appellant's contentions and affirmed his convictions. Moberg v. State, 770 S.W.2d 930 (Tex.App.--San Antonio 1989). In the court of appeals, as well as in this Court, appellant contends that the search of the motel room violated the Fourth and Fourteenth Amendments of the United States Constitution, Article I, § 9 of the Texas Constitution, as well as Articles 18.01, 18.02 and 38.23 of the Texas Code of Criminal Procedure.

In rejecting all of appellant's assertions the court of appeals resolved that the evidence seized from the motel room in question was validly obtained as a result of a legal inventory search and additionally the consent of the motel manager, under the factual circumstances of the case authorized a valid search. ¹ We granted appellant's petition for discretionary review to determine whether the court of appeals was correct in its holdings.

We deem a recitation of the facts concerning appellant's arrest and the subsequent search of the motel room occupied by him to be necessary to the appropriate disposition of the issues presented. The facts as set out by the court of appeals are sufficient for this purpose:

Both complainants, S.B. and L.F., are young girls who were respectively three and five years old when the offense occurred. In February of 1985, Moberg enticed and kidnapped S.B. while she was playing, sexually abused her, made photographs of the sexual events, and returned her to her neighborhood, where she was eventually reunited with her family. Moberg did the same thing to L.F. in May of 1985. Each case went unsolved until January 1987, because the police could not identify the perpetrator.

In the early hours of January 11, 1987, the police arrested Moberg at a motel pursuant to a valid arrest warrant involving an entirely separate offense--aggravated sexual assault of his teenage daughter. After Moberg had been taken to the police station, the officers returned to the motel room at approximately 4:00 a.m., were allowed entry by the manager, and removed Moberg's belongings, including a suitcase, an ice chest, a laundry basket, and various items of clothing. All of these things were inventoried and taken to the police department's property room. The laundry basket contained 94 photographs, some simply showing nude young girls and other [sic] showing a male engaged in sexual activity with various young girls. Even though Moberg was staying alone in the motel room and had rented it for only one night, he did not ask the police or the motel manager to turn over his belongings to anyone, nor did he otherwise ask to make arrangements for their safekeeping. Several days later, investigators identified L.F. and S.B. from the pictures, and ultimately the charges involved in the present appeals were brought.

In addition to the facts set out by the court of appeals, we were able to glean from the record made at the motion to suppress that after appellant was arrested and transported to the county jail, police officers apparently obtained an "evidentiary search" warrant somewhere around 2:00 a.m., and an initial search was conducted pursuant to this warrant. Although muddled, the record clearly indicates that the "inventory search" of the motel room was conducted at 4:00 a.m., wherein all the evidence subject to the motion to suppress was seized by San Antonio police officers. In a surprising turn of events, the district attorney at the motion to suppress hearing chose not to rely on the search warrant to justify the search of the motel room, but rather, elected to rely on the doctrine of "inventory searches." Although anything but crystal clear, there is some indication in the record that the law enforcement officers procuring the warrant failed to comply with the requirements of Article 18.01(c), V.A.C.C.P. ²

In addressing the argument that the search was justified as a valid "inventory search," the court of appeals commenced its discussion by appropriately citing the seminal United States Supreme Court decisions relevant to the doctrine of legitimate inventory searches, e.g., Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and then opined:

Lafayette expressly applied the inventory search concept to "any container or article in [the arrestee's] possession." 462 U.S. at 648, 103 S.Ct. at 2610. In addition to cases concerning automobiles and luggage carried by the arrestee, one recent case has upheld an inventory search of a hotel room after its occupant was arrested. See United States v. Pryor, 652 F.Supp. 1353, 1370-72 (D.Me.1987). We believe that under the facts of this case the inventory search was proper as applied to the arrestee's property from which the arrest had separated him, and which might not have been properly itemized and cared for if the arresting authorities had not taken protective action.

By their very nature inventory searches take place only when a suspect is lawfully in custody, as Moberg was at the time the police returned to the motel room. When there has been an arrest, a standard routine inventory search of the arrestee's belongings serves important governmental interests. Such searches help protect the police department from false claims of theft, and they protect the property itself from unauthorized interference or pilferage. Inventory searches can also protect the police from danger, but we reject any suggestion that evidence found during an inventory can be introduced only when the arrestee was within reach of items that could have hidden a weapon. Protection of the police is only one of several purposes served by inventory searches. Even when no property is inventoried, the police are entitled to protect themselves by searching and seizing items in the area within the arrestee's reach. Inventory searches have been upheld primarily because when police are allowed to itemize and account for the property in the arrestee's possession, there is less risk that such property will be lost or stolen, or that the arrestee will accuse the police of stealing or losing his possessions. [citation omitted] Those purposes are well served by applying inventory search principles to the present case. [Footnotes and citations omitted]

Moberg, supra, at 931-932.

The court of appeals then concluded that the "inventory search" conducted in this case was proper because: (1) Moberg's occupancy was for one night only at the motel; (2) he was the sole occupant; (3) subsequent to his arrest and prior to being transported to the jailhouse he made no effort to ask that others be called to take custody of the property; and (4) after appellant's arrest his personal property was probably even less secure than property seized in a more routine automobile inventory situation. Moberg, id., at 933.

For an assortment of reasons we are compelled to disagree with the court of appeals. In South Dakota v. Opperman, supra, the Supreme Court thus concluded that because of the inherent mobility of automobiles they are unlike homes and are therefore subject to pervasive and continuing regulations and controls which has resulted in a "diminished" expectation of privacy. By virtue of the transitory nature of the automobile several factors were recognized which made inventory searches "reasonable" under the Fourth Amendment after the vehicle was legally impounded: (1) the protection of the owner's property while it remains in police custody, (2) the protection of the police against claims or disputes over lost or stolen property, and (3) the protection of the police from inherent danger. In addition, the High Court observed that Opperman had left his car illegally parked for an extended period which subjected the vehicle to impoundment, and was therefore not present to make other arrangements for safekeeping to his belongings inside the vehicle. Finally the Court reaffirmed Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), by noting that the inventory search was carried out in accordance with standard procedure in the local police department a factor tending to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function and no evidence was presented that such a search was a pretext concealing an investigatory police motive.

We commence with the initial premise articulated in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), that a guest in a hotel room is protected against unreasonable searches and seizures, and the general requirement for a search warrant is not suspended merely because of the guest status of the occupant of the room. Long before Stoner, id., this Court recognized this proposition under our own Article I, Sec. 9, in Tarwater v. State, 160 Tex.Crim. 59, 267 S.W.2d 410 (1954). Notwithstan...