Roeder v. State

• Decision Date: 29 December 1988
• Docket Number: No. 01-87-00811-CR,01-87-00811-CR
• Citation: 768 S.W.2d 745
• Parties: David Allen ROEDER, Appellant, v. The STATE of Texas, Appellee. (1st Dist)
• Court: Texas Court of Appeals

Page 745

768 S.W.2d 745

David Allen ROEDER, Appellant, v. The STATE of Texas, Appellee.

No. 01-87-00811-CR.

Court of Appeals of Texas,

Houston (1st Dist).

Dec. 29, 1988.

Rehearing Denied April 6, 1989.

Rick Brass, Houston, for appellant.

John B. Holmes, Dist. Atty., Timothy G. Taft, Asst. Dist. Atty., Harris County, for appellee.

Before JACK SMITH, SAM BASS and DUNN, JJ.

OPINION

JACK SMITH, Justice.

The trial court convicted appellant of first degree murder upon his plea of nolo contendere and sentenced him to confinement for life. Appellant raises five points of error.

The State contends that this Court does not have jurisdiction because of defects in appellant's notice of appeal under Tex.R.App.P. 40(b)(1). We note that appellant has filed a supplemental notice of appeal that complies with the rule; therefore, we have jurisdiction to consider the appeal.

Appellant was initially charged and convicted of capital murder for his role in a robbery, kidnapping, and murder plot that claimed the lives of three victims. The Texas Court of Criminal Appeals reversed his first conviction without ruling on the motion to suppress issue. 688 S.W.2d 856. That issue is raised here in his appeal from his retrial and second conviction.

On January 23, 1978, appellant, Claude Wilkerson, and Mark Cass went to the home of Don Fantich. Under gunpoint, Fantich opened his safe and gave Wilkerson the cash inside. While they were there, Dr. William Fitzpatrick called and was told by Wilkerson to come by the house in hopes that he would be bringing drugs to Fantich. After Fitzpatrick arrived, Fantich and Fitzpatrick were taken in Fantich's car to a jewelry store owned by Georgiana Rose. Cass stayed outside in the car with Fitzpatrick while the others went into the jewelry store. They robbed the store, abducted Rose, and all three of the victims were taken to appellant's apartment. Appellant's roommate, Bobby Avila, arrived and agreed to help watch the hostages. After a discussion, it was decided that the hostages should be taken to appellant's parents' ranch in Shiner, Texas. Appellant, Avila, and Cass took them to the ranch.

The next day appellant and Cass went into town and tried to reach Wilkerson by telephone. On the way back to the ranch, they purchased a bag of lime. When they returned, appellant, Cass, and Avila decided that they would have to shoot the hostages. Appellant and Cass chose a place to bury them and dug a hole. The three of them then took the hostages to the hole. They agreed that each would shoot one of the hostages. On a signal, they fired. Appellant shot Fitzpatrick; Avila shot Rose; Cass shot Fantich. They put the bodies into the hole, put lime on the bodies, and buried them. They left the jewelry and guns in the attic of the house and returned to Houston. On the way back to Houston, they burned Fantich's car.

On January 26, 1978, Wilkerson told them to leave town and gave appellant $300. Appellant and Cass returned to the ranch, covered the grave with some branches, buried the jewelry and guns in several locations in the barn, and left for Grand Junction, Colorado, where both were later arrested.

In his first point of error, appellant contends that the trial court erred in admitting evidence seized during an illegal, warrantless entry into his apartment by police in violation of his rights under the Texas and United States constitutions.

During the afternoon of January 27, 1978, Claude Wilkerson confessed to his participation in the robbery and kidnapping of Fantich, Fitzpatrick, and Rose. He also implicated appellant in the crimes and told police that the last time he saw the victims was on the night of the robbery at appellant's apartment, four nights earlier. About 8 p.m., Wilkerson took the police to the apartment, but the officers did not attempt to enter the apartment at that time.

Around midnight, the officers returned to appellant's apartment purportedly in search of the victims although the officer testified that he believed that they were probably dead. The police did not have a warrant, nor is there an explanation in the record as to why they had not obtained one.

Lights were on in the apartment, and music was being played loudly. After no one responded to their knocks, the police went to an upstairs apartment where appellant's sister lived. Her name had been discovered on a mail box. She told the officers that appellant had gone to Grand Junction, Colorado, but she did not know whether Avila (appellant's roommate) was in the apartment.

The officers contacted the apartment manager to open the apartment; however upon entry, no one was found. The officers then called for a special investigator to conduct a thorough search of the apartment. In the search of the apartment, the officers recovered a gold chain with the price tag on it, duct tape that had been used and thrown away, and registration papers for appellant's car. Around 2:30 a.m. January 28, 1979, during the officers' search, Avila returned to the apartment and was placed under arrest.

Appellant correctly points out that a warrantless search is permissible only in rare circumstances. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Appellant argues that the State has failed to meet its burden to prove that this search should fall within the emergency exception. Bray v. State, 597 S.W.2d 763, 765 (Tex.Crim.App.1980). In support of this, he argues that Wilkerson showed the officers the apartment four hours before they returned to make the search, the officer stated that he thought the victims were probably already dead, and the victims were last seen at the apartment four days earlier. These facts, he contends, do not fit within the emergency exception. He also argues that even if the initial entrance was justified under the exception, the "emergency" ceased when the officers discovered that no one was in the apartment. We agree that the subsequent extensive warrantless search that produced the evidence at issue was illegal.

The primary purpose of the fourth amendment is to protect citizens from unauthorized intrusions into their homes. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Janicek v. State, 634 S.W.2d 687, 690 (Tex.Crim.App.1982). Police may make a warrantless entry into a home to aid a person in need of assistance. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Wayne v. United States, 318 F.2d 205 (D.C.Cir.1963). The Texas Court of Criminal Appeals has recognized the emergency exception to the prohibition against warrantless searches. "A warrantless search may be justified by a need to act immediately to protect or preserve life or to prevent serious injury." Bray v. State, 597 S.W.2d 763, 764 (Tex.Crim.App.1980).

We do not believe that the "emergency" in this case rose to the level required to justify a warrantless search. The officer testified that he believed that the victims were probably already dead. The last time they were seen at appellant's apartment was four days earlier. The officer gave no reason why he thought they were still there. In addition, the sense of emergency was not so great as to prompt immediate action upon discovering the location of the apartment. The State has not met its burden. Even if the entry into appellant's apartment could be justified under the emergency doctrine, when no one was found in the apartment, any emergency had terminated, and the extensive search for evidence that followed cannot be justified.

The officer testified that after he discovered that no one was in the apartment, he called an assistant district attorney. He was advised to conduct a search of the premises. A crime specialist was brought in to conduct a thorough search of the apartment. When Avila returned approximately two and one half hours after the officers first arrived, the search was still continuing and apparently continued after Avila was arrested. The actions of the officers indicate that the primary purpose of their presence was not the rescue of the victims but the gathering of evidence.

In Bray, the fire department was called to send an ambulance to provide aid to a drug overdose victim. The fire department dispatcher contacted the police, and an officer was dispatched. When the officer arrived, the ambulance personnel were outside and reported that the victim was conscious and that no immediate danger existed. Notwithstanding that knowledge, the officer entered the apartment and went from room to room until he found the defendant (the object of the first call) in the bathroom with drug paraphernalia. Bray, 597 S.W.2d at 766-768. In holding that the evidence should have been excluded, the Texas Court of Criminal Appeals emphasized that an emergency no longer existed and that the officer had alternatives to conducting a warrantless search. Id. at 768.

In the instant case, the officers had alternatives as well. After entering, they knew that no emergency existed. No one was in the apartment so there was no danger of evidence disappearing. They could have obtained a warrant or waited until Avila eventually returned and then asked for consent to search. The actions taken by the officers were not justified by the circumstances. The presence of emergency circumstances is no more of an invitation to conduct a meticulous search of the premises than the circumstance that a person is arrested in the home. The protections of the fourth amendment require that the scope of the search be limited to the circumstance justifying the warrantless search and no farther. See Chimel v. California, 395 U.S. 752, 768-69, 89 S.Ct. 2034, 2042-43, 23 L.Ed.2d 685 (1969). We hold that the search was unlawful.

The State argues that any error was harmless in light of the small amount of evidence recovered and the overwhelming amount of evidence introduced at trial. The...