Snider v. State

• Decision Date: 05 December 1984
• Docket Number: No. 68156,68156
• Citation: 681 S.W.2d 60
• Parties: Lee Leddrew SNIDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 60

681 S.W.2d 60

Lee Leddrew SNIDER, Appellant, v. The STATE of Texas, Appellee.

No. 68156.

Court of Criminal Appeals of Texas En Banc.

Dec. 5, 1984.

Russell D. Daves, Lubbock, for appellant.

John T. Montford, Dist. Atty., and Jim B. Darnell, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of theft, found the enhancement allegation to be true, and assessed punishment at confinement for twenty years and a fine of five thousand dollars.

Appellant raises two grounds of error. The first alleges that, because it was outside the scope of the State's search warrant and was the fruit of an illegal search and seizure, certain evidence was admitted erroneously. The second alleges that the evidence is insufficient to establish the identity of the property seized or the fair market value of the stolen property.

Appellant does not contest the validity of the search warrant used in the instant case. Rather, he says "The issue in this ground of error rests on the extent to which evidence seized during a search conducted under an admittedly valid search warrant is admissible, if it is not described in the warrant."

At a hearing on appellant's motion to suppress evidence, Detective Earl Rankin of the Lubbock Police Department testified that on May 7, 1979, he had obtained a warrant to search a residence, automobiles, and outbuildings located at 6213 23rd street in Lubbock, and persons occupying them. The warrant listed certain Citizen's Band radio (CB) equipment that had been taken in a burglary.

Rankin said that on arriving at the premises he saw a Speedaire air compressor sitting in the front yard. Because of the homemade grille and basket attached to the air compressor, Rankin recognized it as the one taken in a burglary at the Resthaven Funeral Home and Memorial Park in February, 1979. The compressor was sitting in the front yard and was visible even from the street.

Rankin knew about the Resthaven burglary and was familiar with the items that had been taken because he had done the follow-up investigation of that offense. Rankin had spoken with Sam McWhorter, an employee of the Funeral Home, and McWhorter had described the homemade guard and basket.

The search of a shed located on appellant's premises also turned up several other items that Rankin recognized as items taken in the Resthaven burglary, including a Gillette AC generator. A dune buggy that another officer recognized as an item stolen in a yet another theft was also seized in the search of the shed. No CB equipment was found.

Rankin testified that, based on the information he knew about the Resthaven burglary--information he had known before he searched appellant's premises, he recognized the compressor as the one taken in that burglary. He had also known that a Gillette AC generator had been taken, and he saw a Gillette AC generator in the shed, along with several other items he recognized as having been stolen from Resthaven--including a weed-eater marked "Resthaven Funeral Home." The source of the items was confirmed by matching the serial and model numbers and descriptions on the offense reports from the Resthaven burglary and from other thefts and burglaries with the equipment found in the shed. Rankin also testified that the shed in which most of the stolen property was found was cluttered with all kinds of car parts, tools and junk. On cross examination, Rankin said that he had taken anything that had a serial number or a model number that he might be able to tie into a burglary.

Appellant contends that "all items included in State's pretrial exhibit number one are fruits of an illegal search and the admission into evidence of the Gillette AC generator, State's exhibit number three, constitutes reversible error." Appellant was indicted for theft of the compressor and the generator. Of the State's pretrial exhibits, only the compressor, the generator, the weed eater, and a chain hoist were identified at trial as property stolen from Resthaven and discovered on appellant's premises. It is to these items that we address our discussion of appellant's contention that these items were outside the scope of the search warrant and should have been suppressed.

Before the facts can be examined to determine whether a search exceeded the scope of the warrant we must determine whether the scope of the search is contested because of the location where the items were seized, or by the claim that the items seized were not described in the warrant or otherwise reasonably connected to the search. If the former contention is raised the officers must show that they were properly in the place where the item was found. That can be done on the basis of the warrant, as in the instant case, or under the authority of one of the other exceptions to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The latter contention was made in the instant case.

The items involved in the instant case, although they are not described in the warrant, need not be shown to have been related to the investigation for which the warrant issued because they were in plain view while the officers were legally upon the premises under authority of the warrant. Appellant does not contest the validity of that warrant.

In Coolidge v. New Hampshire, supra, the United States Supreme Court discussed the plain view exception to the warrant requirement and the three conditions that must be met to invoke that doctrine: The initial intrusion must be proper so that the police have a right to be where they are; the discovery of the evidence must be inadvertent; and it must be immediately apparent to the police that they have evidence before them. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) the Supreme Court explained that what must be "immediately apparent" is probable cause, when they stated that the rule set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) was applicable; " '[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.' "

Our discussion ante makes it very clear that the police were validly upon the premises and that probable cause was immediately apparent. The very fact relied upon by appellant--that the items in the shed were found while the shed was being searched for other items, and that the instant evidence was not named in the warrant, demonstrates that their discovery was inadvertent.

Appellant contends that Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) control the instant case. Appellant also contends that a nexus need be shown between the criminal investigation undertaken, i.e., the search for CB equipment, and the items seized. Because the three requirements of plain view are met, no additional nexus to criminal activity need be shown. Plain view requirements are intended to supplant such a nexus. Further, as the Supreme Court noted in Warden, supra, nexus is a probable cause requirement which is met automatically when the evidence seized is the fruit or instrumentality of a...