Stine v. State, 10-88-101-CR

• Decision Date: 08 February 1990
• Docket Number: No. 10-88-101-CR,10-88-101-CR
• Citation: 787 S.W.2d 82
• Court: Texas Court of Appeals
• Parties: John Stephen STINE, Appellant, v. The STATE of Texas, Appellee.

Page 82

787 S.W.2d 82

John Stephen STINE, Appellant, v. The STATE of Texas, Appellee.

No. 10-88-101-CR.

Court of Appeals of Texas,

Waco.

Feb. 8, 1990.

Rehearing Denied March 8, 1990.

Discretionary Review Refused

June 27, 1990.

Joe Messa, Williams & Smith, Houston, for appellant.

Dan V. Dent, Crim. Dist. Atty., Hillsboro, for appellee.

OPINION

THOMAS, Chief Justice.

A jury found Appellant guilty of the murder of Raymond Krieger and assessed his punishment at fifty years in prison and a $10,000 fine. See TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). Points on appeal relate to the denial of a motion to suppress evidence seized in a warrantless search of an automobile, the failure to instruct the jury on the lesser included offense of voluntary manslaughter, and the admission of evidence of prior acts of misconduct and an extraneous offense. The judgment will be affirmed.

At 7:00 a.m. on June 14, 1987, Krieger was found lying near a road, badly beaten, and was hospitalized with serious injuries. He said he had been beaten with a baseball bat. Hill County Sheriff's officers soon received information that two men accompanied by two women had been observed the previous evening forcing Krieger into a blue and brown station wagon. Around 10:00 a.m. the officers were informed that two women were seen in the station wagon in the Live Oaks Estates Subdivision near Lake Whitney. They located the car, stopped it, and apprehended Evelyn Liehsel and Lauralyn Jackson. Approximately one hour later, an officer returned to the station wagon, which had been left parked in a private driveway near where it had been stopped, and retrieved a bloody baseball bat and towel from the back of the vehicle. Appellant was arrested around noon that same day. Krieger died from his injuries during the early morning hours of June 15. The bat and towel were introduced into evidence at Appellant's trial.

Appellant tried to suppress the baseball bat and towel as evidence. At the pretrial suppression hearing, Deputy West testified that he saw a bloody towel lying behind the driver's seat of the station wagon after it was stopped. Although he was investigating an assault, West claimed that the towel did not have any particular significance to him at the time he first saw it. Deputy Rizo also saw a bloody bat and towel in the back of the station wagon after it was stopped. However, neither officer seized the bat or towel when they arrested Liehsel and Jackson. Instead, they left the station wagon unattended and apparently unlocked in a nearby private driveway. West admitted that no inventory was done on the car when the women were arrested.

While interrogating Liehsel at the police station, West discovered that a baseball bat had been used to beat Krieger. Rizo overheard that discussion and told West that he had noticed a bat in the back of the station wagon. Approximately one hour after the apprehension of Liehsel and Jackson, Rizo returned to the car and retrieved the bat and towel. He again left the car unattended in the private driveway.

Appellant's first point is that the court erred when it denied his motion to suppress. He contends the bat and towel were obtained as a result of an unreasonable search and seizure. The State argues that Appellant could not complain about the search and seizure because he did not have a legitimate expectation of privacy in the station wagon, which was owned by a third party.

Fourth Amendment rights are personal and cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). Therefore, a person must have a legitimate expectation of privacy in the area searched before he can complain about the violation of the Fourth Amendment. Id. 99 S.Ct. at 433. Although the expectation of privacy in a car is more limited than the expectation of privacy in a home, Fourth Amendment rights are not lost when a person enters a car. Howard v. State, 599 S.W.2d 597, 600 (Tex.Crim.App. [Panel Op.] 1979). The Fourth Amendment protects people, not places. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). Thus, when determining whether there is an expectation of privacy, property rights, although relevant, are not the only factors to be considered. Bass v. State, 713 S.W.2d 782, 786 (Tex.App.--Houston [14th Dist.] 1986, no pet.).

Timothy Lovely, Appellant's employer, testified at the suppression hearing that the owner of the station wagon had brought the car to his business for repairs, and had authorized him or his employees to test-drive the vehicle after it was repaired. Lovely said that he had given Appellant permission to drive the car during the weekend the bat and towel were seized from the vehicle. Appellant, who had permissive authority to drive the station wagon when the seizure occurred, had a reasonable expectation of privacy in the vehicle. See Howard, 599 S.W.2d at 605 (holding that a defendant who borrowed a car had "standing" to complain about the admission of evidence obtained in a warrantless search of the vehicle).

Warrantless searches are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Exceptions to this rule include: (1) a search incident to a valid arrest; (2) the "automobile exception"; (3) an inventory search; and (4) the "plain view exception." However, these exceptions are "jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). The burden is on the government to show that a warrantless search and seizure falls within one of the exceptions, and that the exigency of the circumstances made the seizure without a warrant imperative. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). Evidence obtained in violation of the constitution must be suppressed, and the court has no discretion in the matter. TEX.CODE CRIM.PROC.ANN. art. 38.23(a) (Vernon Supp.1990); Polk v. State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987).

A well-known exception to the general rule that a warrant must be obtained before a search is conducted is a search incident to a valid arrest. See e.g., Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). A search is incident to an arrest only if it is "substantially contemporaneous" with the arrest and is confined to the area within the immediate control of the person arrested. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970). Furthermore, once a person is arrested and in custody, searching his car at another location without a warrant is not a search incident to the arrest. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Because the baseball bat and towel were removed from the car approximately an hour after Liehsel and Jackson were arrested and in custody at the station, the search was not "substantially contemporaneous" with their arrest, and the items seized were not then within their immediate control. Therefore, the search cannot be justified as a search incident to an arrest.

The "automobile exception," which allows police to make a warrantless search of an automobile stopped on a road whenever they have probable cause to do so, is another exception to the warrant requirement. See e.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The United States Supreme Court has held that an immediate search based on probable cause is constitutionally permissible because a "car is moveable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained." Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). Furthermore, "if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search." Id. 90 S.Ct. at 1981 (emphasis added). However, if a car may be searched where it is stopped, it may also be seized and taken to the station for the warrantless search. See id. Warrantless searches of cars based on probable cause may be upheld only if there are exigent circumstances which make obtaining a warrant impracticable. Gauldin v. State, 683 S.W.2d 411, 414 (Tex.Crim.App.1984).

Although the officers had probable cause to search the station wagon when they stopped it, they failed to conduct an immediate search or to seize the car and take it to the station to be searched. Instead, they parked it in a private driveway and left it unattended until they returned without a warrant approximately an hour later to seize the bat and towel. Although Appellant had not been apprehended at the time the evidence was seized, this alone did not constitute exigent circumstances which made obtaining a warrant impracticable. The officers' delay in searching the car and their failure to exercise control over it clearly indicated that exigent circumstances did not then exist and that they could have obtained a search warrant. The automobile exception does not apply to this case.

A third exception to the warrant requirement is an "inventory search" of a vehicle lawfully impounded. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The rationale behind this exception is to protect the belongings in the vehicle from theft, to protect the police department from liability for the loss of the belongings, and to enable police to respond to theft or vandalism. Id. 96 S.Ct. at 3097. Here, Deputy West admitted that no "inventory" of the vehicle was done when Liehsel and Jackson were arrested. Furthermore, the officers did not seize the station wagon when they apprehended Liehsel and Jackson or when they took the bat and towel. The inventory exception does not apply because the record is devoid of any evidence that the...