Oles v. State

• Decision Date: 26 May 1999
• Citation: 993 S.W.2d 103
• Parties: (Tex.Crim.App. 1999) MELVIN OLES, Appellant v. THE STATE OF TEXAS NO. 764-98
• Court: Texas Court of Criminal Appeals

Page 103

993 S.W.2d 103 (Tex.Crim.App. 1999)

MELVIN OLES, Appellant v. THE STATE OF TEXAS

NO. 764-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

May 26, 1999

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE 1ST COURT OF APPEALS HARRIS COUNTY

O P I N I O N

PRICE, J., delivered the opinion of the Court in which McCormick, P.J., Meyers, Mansfield, Keller, Holland, Womack and Keasler, J.J., joined. Keller and Johnson J.J., delivered concurring opinions.

Appellant was charged with the offense of murder. After a hearing, the trial court denied appellant's pre-trial motion to suppress evidence. Appellant initially pled not guilty, but during trial changed his plea to guilty. The trial court accepted the plea and sentenced appellant to twenty years confinement. Appellant argued on appeal that the trial court erred in not granting his suppression motion. In a published opinion, the Court of Appeals affirmed the judgment of the trial court. Oles v. State, 965 S.W.2d 641 (Tex. App.--Houston [1st Dist.] 1998). We granted appellant's petition to determine whether law enforcement, without a search warrant, may test the clothing of a person lawfully arrested and in custody for one offense in order to investigate that person's involvement in another (a second) offense, when there are no exigent circumstances to justify the warrantless testing, nor is there probable cause to test the clothing for the second offense.

We will affirm.

Facts

The facts are undisputed in this case. Appellant was initially detained at the police station as a potential witness to a murder. During this detention, the police discovered an open warrant issued for appellant's arrest on a motion to revoke probation. The police arrested appellant on this outstanding warrant; they did not arrest him for the murder. The police inventoried and stored appellant's clothing pursuant to this lawful arrest. There was no evidence on or within this clothing that was immediately apparent to the naked eye. Eight days later, with appellant still incarcerated pursuant to the revocation warrant, an investigator took appellant's clothing to the medical examiner's office to determine if it contained blood traces. A serologist discovered blood on appellant's shoes that matched the blood of the murder victim. The police charged appellant with murder, from which he presently appeals.

Court of Appeals' Decision

In a published opinion, the Court of Appeals affirmed the trial court's holding on the suppression of the evidence.¹ Oles v. State, 965 S.W.2d 641 (Tex. App.--Houston [1st Dist.] 1998). The Court of Appeals held that the police had every right to search appellant's clothing, take it from him, and keep it in official custody incident to legal arrest. See id. at 644. It determined the issue to be whether a person lawfully arrested for one crime continued to have a legitimate expectation of privacy in clothing that was rightfully under the control of the police, yet being tested for an unrelated crime. Id. In its analysis, the Court applied the test for proving a legitimate expectation of privacy, involving two queries: (1) whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy and (2) whether the individual's subjective expectation of privacy is one that society is prepared to recognize (objectively) as reasonable. See id. (citing Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct. 2577, 2580 (1979), Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (plurality opinion)). The Court of Appeals determined that appellant could not affirmatively prove either prong of this test, thus the trial court did not abuse its discretion in denying the motion to suppress. Oles, 965 S.W.2d at 645.

After this decision, reconsideration en banc was requested. Oles, 965 S.W.2d at 645. This request was denied in a 5-4 decision. Id. Justice Andell delivered an opinion dissenting from the denial of en banc reconsideration, in which Justice O'Connor joined. Id. The dissenting opinion argued that one more test was required to determine that this search was reasonable. Id. (emphasis in original). It averred that the minimum constitutional requirements for a warrantless search are (1) probable cause that evidence will be uncovered and (2) exigent circumstances justifying the search. Id. (citing Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981 (1970)). This case did not involve exigent circumstances nor probable cause, thus the trial court should have granted the suppression motion. Id.

Standard of Review

Generally, a trial court's ruling on a motion to suppress is reviewed by an abuse of discretion standard. See Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). However, the instant case presents us with a question of law based on undisputed facts, thus we apply de novo review. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Analysis

This is a case of first impression for this Court and the legal questions presented are varied and complex. First, this Court must determine whether an arrestee retains any expectation of privacy in clothing lawfully taken and inventoried by police incident to an arrest.² Second, if we conclude that such a privacy interest exists, we must then determine if a subsequent search of that clothing without a warrant, probable cause, or "plain view" knowledge of the clothing's relevance as evidence, violates the remaining privacy interest protected by the Fourth Amendment.³

Initially, we decide that it is of no consequence that appellant was arrested for a different crime than the one for which he was eventually charged.⁴ It is beyond dispute that a firearm or controlled substance found in a search incident to lawful arrest would not be suppressed, regardless of the charge on which police initially arrested an accused. There is no reason to have a different result here. The police lawfully arrested appellant pursuant to an open arrest warrant. Any evidence discovered in a search incident to that arrest, if otherwise reasonably seized, should not be suppressed merely because it relates to a different crime than the one for which appellant is eventually charged.

This Court has held that police may initially analyze a detainee's clothing incident to arrest. See Marquez v. State. 725 S.W.2d 217, 234 (1987), cert. denied, 108 S.Ct. 201 (1987). In that case, Marquez was arrested and immediately transported to the police station. Id. An officer ordered him to disrobe after noticing that there were blood stains on his clothing and shoes. Id. Forensic analysis verified that the blood stains on his clothing matched the victims' blood and Marquez was charged with murder. Id. In affirming Marquez' conviction, this Court held that "[t]he warrantless seizure of a suspect's clothing subsequent to a legal arrest, while in custody or detention, is permissible." Id. The sole rationale supporting this ruling was a citation to a United States Supreme Court opinion, United States v. Edwards, and three cases from this Court that had also cited Edwards. 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d. 771 (1974); and see Russell v. State, 665 S.W.2d 771 (Tex. Crim. App. 1983), cert. denied, 104 S.Ct. 1428 (1984); Stewart v. State, 611 S.W.2d 434 (Tex. Crim. App 1981); Deal v. State, 508 S.W.2d 355 (Tex. Crim. App. 1974).

In Edwards, police booked the suspect at night, but waited until the following morning to submit his clothing for laboratory analysis. See 415 U.S. at 805, 94 S.Ct. at 1238. The Court held that "in a situation like" the one in Edwards, the legal arrest of a person, for at least a reasonable time and to a reasonable extent, takes the arrestee's "own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence." 415 U.S. at 809, 94 S.Ct. at 1239-40.⁵ The Edwards Court apparently based their holding on the "plain view" doctrine, stating "[w]hen it became apparent that the articles of clothing were evidence for the crime for which [appellant] was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of a crime when it is lawfully encountered."⁶

Id. 415 U.S. at 806, 94 S.Ct at 1238 (citations omitted). However, they certainly left open the possibility of expanding this basis with a companion statement that ended the same paragraph:

"Indeed, it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest."

Id.

The distinctions between the instant case and the cases of Edwards and Marquez are important. Most notably, Edwards and Marquez dealt with blood-splattered clothing easily visible to the arresting officer, whereas the officer in the instant case could not see the blood in "plain view". When appellant's clothing was taken eight days after his arrest to the forensics lab for testing, the search was more extensive than the original search at arrest and inventory.

This "second search" distinction has caused conflicting results among federal and state courts, as will be explained below. Also see LaFave, WAYNE R., SEARCH & SEIZURE 5.3(b) (3rd Ed. 1996). Additionally, Edwards and Marquez involved clear findings of probable cause, while here the police did not appear to have sufficient probable cause to apply for a search warrant of appellant's clothing. Finally, the instant case involves an eight-day delay between the arrest and the analysis of appellant's clothing, where the aforementioned cases involved only a half-day delay. Therefore, although Edwards and Marquez provide the foundation for today's ruling, clearly they are not dispositive of the issues presented in the instant case.

The Texas cases cited by Marquez are equally distinguishable on their facts from the unique issues presented...