Livingston v. State

OPINION

BURGESS, Justice.

Appellant was convicted of burglary of a building and a repeated offense and sentenced to twenty-five years confinement in the Texas Department of Corrections. His principal complaint on appeal is that evidence admitted at the trial was obtained in violation of state and federal search and seizure law. We are constrained to agree and must reverse his conviction and remand the case since we are unable to find this error harmless.

The circumstances of the search and seizure were adduced at trial from Mr. Bra-quet (“Braquet”), the complaining witness. Braquet owned the wrecking yard that was burglarized. He privately investigated the crime and focused his suspicion on appellant. He then contacted the police to get them to approach appellant for questioning. He was met in front of appellant’s mobile home by sheriff’s deputy Simmons (“Simmons”). Simmons remained at his car in a back-up position. Braquet recognized a tire and wheel in the yard as having been taken in the burglary. Upon knocking on the door and not getting an answer, he started to leave but noticed a tailgate leaning against an open wooden shed that was attached to the end of the mobile home. He approached the shed and by looking through the opening, discovered some more property. Simmons watched Braquet’s activities and then directed him to stop until a Detective Hale (“Hale”) arrived.

The following testimony reveals what occurred upon his arrival:

Mr. Braquet: When he got there, we — from that point, we went into the little shed there, which was — contained all these items that we located, and he took pictures as they were. Then, he told me to move —

Mr. Smith: Now, when Detective Hale got out there, did you tell Detective Hale that you had seen some of -

Mr. Braquet: Yes.

Mr. Smith: — your items, taken from the burglary?

Mr. Braquet: Yes, sir.

Mr. Smith: And did you tell him that you saw some of your items, as far as you were concerned, leaning against the trailer, and, also, in that tool shed?

Mr. Braquet: Yes. I told him I had seen items that belonged to me in Mr. Livingston’s shed. Yes, sir.

Mr. Smith: So, Detective Hale got out of his car and went on the property, and did what?

Mr. Braquet: Took pictures, as — of the things, as they were, in the shed, and as you can see me in the pictures, there’s stuff that didn’t belong to me. He took pictures of this area.

Mr. Smith: And that was soon after Detective Hale got there?

Mr. Braquet: Right.

Mr. Smith: And after Detective Hale took these pictures, then, what happened?

Mr. Braquet: Then, he asked me to remove my items from the building and put them in a pile outside the building, —

Mr. Smith: Okay.

Mr. Braquet: - so he could inventory them, which he did.

Mr. Smith: All right. And this is right there, right next to the trailer, that you all were doing this?

Mr. Braquet: Right. In the driveway. Correct.

After inventorying these items, Braquet located a stolen winch on a wrecker parked in the yard by looking through a hole in the tool box in the bed of that vehicle. Bra-quet admitted that “standing on the road, I’d probably never have been able to see it — that it was my wench (sic), but when I walked up close, I could tell it was a wench (sic) with a cable on it.” He agreed that Hale looked inside in the same manner. After Hale confirmed this discovery Mr. Braquet “got all the stuff put up that belonged to (him)” and was told that “we would have to get a search warrant to get the rest of it.” Hale then obtained a search warrant to seize the vehicle.

Upon executing that warrant, Braquet and Hale discovered evidence in the mobile home which was used to secure a second warrant to search the trailer. Hale’s affidavit in support of the second warrant fully describes the circumstances of this discovery:

Today, April 23rd, 1985, at 4:00 PM, the complainant, Gene Braquet, advised me that by looking thru the middle bedroom window on the west side of the trailer, one could see some of stolen property ... By placing a cinder block to be able to look over the window sill, I could also see, the described items, Mr. Braquet stated were his ... It is necessary to stand on the cinder block, to be able to look over the window sill, which is about six feet off the ground.

After entering the mobile home, pictures were taken of the stolen property located inside. These photographs, along with those of the other property recovered on the premises, were admitted over appellant’s renewed objections to the pictures and testimony concerning the discovery of the photographed items that he previously made in a written motion to suppress. The court denied that motion without the benefit of a separate hearing prior to the beginning of trial.

The state alleges appellant waived the argument he now makes on appeal because the written motion varies from his position on appeal and because he was “content to ride on [the written motion’s] allegations”. See Rovinsky v. State, 605 S.W.2d 578 (Tex.Crim.App.1980); Nelson v. State, 607 S.W.2d 554 (Tex.Crim.App.1980). The variance lies in the fact that the written motion objected to Hale’s activities while the appellant’s brief complains of Braquet’s activities. We disagree that this difference disposes of appellant’s argument.

The written motion clearly informed the state that appellant complained of an illegal search and seizure based upon abrogations of the U.S. CONST. amend. IV, TEX. CONST. art. I, sec. 9, and TEX. CODE CRIM.PROC.ANN. art. 18.01 (Vernon Supp.1987) & art. 38.23 (Vernon 1975). In order for his motion to suppress to be particular enough to adequately apprise the trial court of the objection, appellant had only to forward his legal theory in the motion, not specify the individual who conducted the search. See 4 W. LaFave Search and Seizure sec. 11.2(a), at 214-15 (2nd Ed.1987). This difference is, moreover, inconsequential to our analysis since we base this opinion on the impropriety of Hale’s activities; the motion clearly complained of them and the point before us is that the motion was erroneously overruled.

In general, Texas assigns the burden of proof on a motion to suppress to the defendant attacking a warrant that is valid on its face, but to the state when a war-rantless search is alleged to have occurred or a warrant is invalid on its face. Rumsey v. State, 675 S.W.2d 517 (Tex.Crim.App.1984); Gonzalez v. State, 588 S.W.2d 355 (Tex.Crim.App.1979). See United States v. Berick, 710 F.2d 1035 (5th Cir.1983); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Appellant’s motion to suppress alleged that Hale entered his premises without a warrant and without his permission in illegally seizing evidence used to procure a warrant. He attached the two search warrants and supporting affidavits used to gather evidence from his premises to the motion and complained that the affidavit supporting the first warrant showed on its face that a warrantless search occurred. The state had the burden, therefore, of justifying that search and seizure.

Appellant requested a hearing on his pretrial motion to suppress. The trial court’s denial of that request and delay of its decison on the motion until hearing live testimony at the trial was merited by TEX. CODE CRIM.PROC. ANN. art. 28.01 (Vernon Supp.1987), since appellant’s motion was filed only four days before the trial commenced. See Bosley v. State, 414 S.W.2d 468 (Tex.Crim.App.1967). This did not, however, affect the state’s burden at trial since appellant re-urged his objections in the motion to suppress at the outset of Braquet’s testimony. Despite this, the state failed to present any justification for the warrantless search. See Gonzalez, supra.

The state’s position on appeal is, rather, that “confirmation of the presence of articles in the trailer, shed and truck by Mr. Hale was not a search—they had already been discovered.” This is untenable. It overlooks Hale’s searching the shed, photographing the items found there, and directing Braquet to assist him in seizing and inventorying the stolen property from the shed. The shed was protected from a search by the officer because it was immediately adjacent to the mobile home where appellant had a valid expectation of privacy. Kann v. State, 694 S.W.2d 156 (Tex.App.—Dallas 1985, pet. ref’d); Gonzalez, supra, at 360. The truck was also protected from a search since it was parked in the curtilage and Hale’s looking into it ensued from an warrantless entry into the yard. See Kann, supra; Gonzalez, supra. Moreover, Braquet’s involvement in the discoveries did not serve the evidence to the state on a silver platter.

The question to be addressed in deciding whether a private search and seizure has occurred is whether the private activities are “completely accomplished” before the inception of state involvement. In that regard, it is “immaterial” whether Hale “originated the idea or joined in it while the search was in progress.” Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819, 1823 (1949). Here, Hale ordered Braquet to assist him in gathering and inventorying the evidence. He photographed items while they remained in the shed. He photographed items while they remained in the shed. He entered the premises and participated in the search and seizure before either was “completely accomplished.” Lustig, supra; see also Stapleton v. Superior Court of Los Angeles County, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967 (1968). His actions alone constituted an illegal search and seizure.

In short, the guise of confirmation does not justify Hale’s search or seizure of any evidence other than the tire, wheel, ánd tailgate. No search for those items occurred because they were in plain view; Hale was authorized to seize them without a warrant because they were inadvertently discovered in the process of an attempt to question a suspect and because Braquet immediately identified them as evidence of the burglary. Coolidge v. New Hampshire, 403 U.S. 443, 466-67, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971).

The warrant used to seize the truck was, on the other hand, invalid. The search used to establish probable cause for that warrant was illegal because Hale was looking for evidence in a place that required a warrant. Since that search was illegal under the U.S. CONST, amend. IV and TEX. CONST, art. I, sec. 9 the effect was to invalidate both warrants used to secure evidence in the case. See Gonzalez, supra. We additionally note that the second warrant was invalid since Hale admitted to searching appellant’s home without a warrant or justification in a situation in which that intrusion unreasonably exceeded. the scope of the first warrant. See Long v. State, 532 S.W.2d 591 (Tex.Crim.App.1976). The photographs of all evidence other than the plain view items should have been excluded; all testimony other than that concerning what occurred prior to Hale's search of the shed should have also been excluded.

The state argues that under the harmless error rule, exclusion of the photographs should not undermine the conviction because Mr. Braquet’s testimony was admitted without the objection that it “would be a fruit of the alleged illegal search although an earlier objection had been made to the testimony of Mr. Braquet as to what he had seen when he looked around.” In fact, appellant did object to Braquet’s testimony shortly after he recounted having seen the wheel and tire in plain view and then knocked on the door. That objection raised all of the grounds in the motion to suppress, including its prayer that:

[ T]he property seized and taken from said premises be suppressed and excluded from evidence in this cause be ordered [ sic] to refrain from offering in evidence or producing in the presence of the jury on the trial of this case said property or any part of item thereof and from asking any question of any witness as to the presence of said property or any item or part thereof in or on said premises at said time and place.

Braquet’s identification of his property was a fruit of the prior illegal search by Hale to the extent that it described what had been unlawfully seized. See People v. Dowdy, 50 Cal.App.3d 180, 123 Cal.Rptr. 155 (1975). Moreover, we find a reasonable possibility that the offending photos and testimony might have contributed to appellant’s conviction. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App.1981). This is especially the ease since appellant, through other witnesses’ testimony, alleged that his two accomplices perpetrated the crime when he had unwittingly allowed them to use his truck without knowing of their intent to burglarize Braquet’s wrecking yard. That story would have been much more believable in the absence of evidence in appellant’s mobile home and shed. We are constrained to reverse and remand this case and, therefore, find it unnecessary to address appellant’s remaining points of error.

REVERSED AND REMANDED.