Price, Braden Daniel

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0722-19
BRADEN DANIEL PRICE, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
N EWELL, J., filed a dissenting opinion in which H ERVEY J.,
joined.
Police received a tip that Appellant was trafficking drugs at the
airport. A drug-sniffing dog later alerted on Appellant’s rolling suitcase.
Police detained Appellant after he retrieved his luggage. We held in
Lalande v. State that police could lawfully search a suspect’s suitcase in
Price Dissenting — 2
a situation very similar to the one presented in this case.1 I agree with
the court of appeals that we did so in that case under a theory of
inevitable discovery. The question before the Court in Lalande was
whether the search in that case was proper incident to arrest.2 We held
that the search was justified at the time of arrest because the luggage
would have eventually been searched.3 We did not base our decision
upon the theory that the search was a legal inventory search; we based
it on the theory that discovery during a future inventory search was
inevitable. That’s inevitable discovery.4 So, the court of appeals was
1
676 S.W .2d 115, 118 (Tex. Crim . App. 1984) (holding that the baggage at issue could
be searched incident to arrest even though Appellant claim ed it was his com panion’s bag).
2
Id. at 118 (“Appellant also contends the seizure of appellant’s bag and contents was
unlawful in that, since appellant’s com panion was carrying the bag, it cannot be said to be so
connected with appellant as to adm it of a search incident to appellant’s arrest.”).
3
Id. (adopting rationale justifying a warrantless search set out in Judge Clinton’s
concurring opinion in Stewart v. State, 611 S.W .2d 434 (Tex. Crim . App. 1981)); see also
Stewart, 611 S.W .2d at 441 (Clinton, J., concurring) (rejecting search-incident-to-arrest theory
and arguing that search was perm issible because “[w]hatever vestiges of privacy rem ained
would soon be lost through routine property inventory preceding confinem ent”).
4
There is no “search of item s accom panying the detainee into confinem ent” in Texas.
The case Judge Clinton relied upon to set out this rationale in his concurring opinion in Stewart
v. State was based upon searches of belongings at the station not at the scene. See Stewart,
611 S.W .2d at 441 (quoting United States v. Edwards, 415 U.S. 800, 804–05 (1974)). Under
federal law , it is of no m om ent whether the search occurs at the scene or at the jail because
of the existence of the inevitable discovery doctrine. If the search at the jail is perm issible, the
search at the scene in anticipation of the item being inventoried at the jail when the arrestee
lacks any expectation of privacy is also perm issible. See, e.g., United States v. Matthews, 532
Fed. Appx. 211, 225 (3d Cir. 2013) (“W e note that, even if we were to find the search of
Matthews’ backpack unconstitutional, we agree with the District Court that the evidence in
question would have been discovered pursuant to a valid inventory search at the police station
when Matthews was processed, and thus it was properly adm itted under the inevitable
discovery doctrine.”). W hen we decided Lalande, the question of whether the inevitable
discovery doctrine applied under Texas law was still an open question. But, after Lalande, we
Price Dissenting — 3
correct that our holding that the statutory exclusionary rule does not
incorporate the inevitable discovery doctrine undermined our previous
holding in Lalande.5 If we don’t like the conclusion of the court of
appeals, we are better off revisiting our interpretation of Article 38.23 as
a matter of statutory construction rather than stretching Fourth
Amendment precedent to uphold the search under a re-imagining of our
holding in Lalande.
The difficulty in this case is that the search feels reasonable, but it
doesn’t squarely fit into a carefully drawn exception to the Fourth
Amendment’s search warrant requirement.6 Police had probable cause to
arrest Appellant for possession of a controlled substance because they
knew he had marijuana in his bag at the airport. Why require police to
go through the trouble of getting a search warrant when the probable
decided State v. Daugherty, 931 S.W .2d 268, 273 (Tex. Crim . App. 1996), which forecloses the
application of the inevitable discovery doctrine in Texas. So, under Texas law, it does m atter
whether the search occurs at the scene or the jail. See Garcia v. State, 829 S.W .2d 796,
798–800 (Tex. Crim . App. 1992) (concluding that the inevitable discovery doctrine “is not an
exception to core prohibitions of the Fourth Am endm ent, but only an exception to the federal
exclusionary rule”); Daugherty, 931 S.W .2d at 273 (holding that “Article 38.23 does not
contem plate an inevitable discovery exception”).
5
Price v. State, No. 14-18-00628-CR, 2019 W L 2013849, at *3 (Tex. App.— San Antonio
May 8, 2019) (m em . op. not designated for publication) (“The analysis in Lalande, however,
cannot be reconciled with the rejection of the doctrine of inevitable discovery by the Texas
Court of Crim inal Appeals in State v. Daugherty, 931 S.W .2d 268, 273 (Tex. Crim . App.
1996).”).
6
See Riley v. California, 573 U.S. 373, 382 (2014) (“In the absence of a warrant, a
search is reasonable only if it falls within a specific exception to the warrant requirem ent.”).
Price Dissenting — 4
cause to arrest didn’t require a warrant and it is the same probable cause
pointing to drugs in the luggage? Allowing the search in this case would
certainly be close enough for government work.
But, as Judge Walker points out, the United States Supreme Court
has reached the opposite conclusion in United States v. Chadwick, albeit
when the luggage at issue (a footlocker) was bigger.7 There, in a
situation analogous to the one presented here, the United States
Supreme Court held that the search-incident-to-arrest exception does not
justify a search of luggage once police have that luggage in their personal
control and there is no longer any danger that the arrestee might gain
access to the property to seize a weapon or destroy evidence.8 Perhaps
it is enough to liken the luggage at issue in this case to a purse given its
mobility. But I believe Chadwick is dispositive, even though the Supreme
Court may need to revisit Chadwick in light of some of its more recent
holdings.9
Indeed, the Supreme Court has already watered Chadwick down.
7
433 U.S. 1, 12 (1977).
8
Id. at 15.
9
See, e.g., State v. Guzm an, 959 S.W .2d 631, 633 (Tex. Crim . App. 1998) (“W hen we
decide cases involving the United States constitution, we are bound by United States Suprem e
Court case law interpreting it. If Texas case law is in conflict, we are obligated to follow United
States Suprem e Court federal constitutional precedents.”).
Price Dissenting — 5
In United States v. Ross, the Court extended the “automobile exception”
to allow for a search of every container within the automobile so long as
there was probable cause to search the entire car.10 Later, in California
v. Acevedo, the Court held that police could search a container within a
car pursuant to the automobile exception even when officers lacked
probable cause to search the entire car.11 Both cases seem to allow for
a warrantless search of “containers” like luggage, at least in a car, so long
as there is probable cause to believe that there is contraband to be found.
It seems inconsistent to allow a search of bags in a car under this type of
rationale while prohibiting a search of a person’s bags at the airport.
After all, under existing Supreme Court precedent, it would seem police
could have searched the luggage in this case if they had waited to pull
Appellant over after Appellant put it in the trunk of a car and drove away.
Nevertheless, Ross made clear that its holding allowing the search
of containers in a car was based upon an extension of the automobile
exception rather than an extension of the search-incident-to-arrest
exception.12 Further, the Supreme Court has maintained the distinction
10
456 U.S. 798, 823 (1982).
11
500 U.S. 565, 574 (1991).
12
Ross, 456 U.S. at 816–17.
Price Dissenting — 6
between a search pursuant to the automobile exception and a search
incident to arrest. It has held, for example, that a warrantless search of
a car is unjustified incident to arrest once the car had been secured and
there is no danger that the arrestee could gain access to a weapon inside
the car or destroy evidence within it.13 And the Court held that such a
search is unjustified as a search-incident-to-arrest even if the search
could have been justified under the automobile exception.14
Perhaps the United States Supreme Court should recognize that this
distinction is problematic. The ability to search a person for evidence of
a crime upon a full-custodial arrest is long-standing and well-
established.15 It seems like this justification could be extended to a
warrantless search of an arrestee’s luggage based upon probable cause,
just as the automobile exception was extended to allow for searches of
any container in a car. However, that may be inconsistent with the
Supreme Court’s recent prohibition of warrantless blood draws and
13
Arizona v. Gant, 556 U.S. 332, 351 (2009).
14
Id. at 347 (noting that a car m ay be searched pursuant to the autom obile exception
even if a search is not justified incident to arrest).
15
See, e.g., Agnello v. United States, 269 U.S. 20, 30 (1925) (“The right without a
search warrant contem poraneously to search persons lawfully arrested while com m itting crim e
and to search the place where the arrest is m ade in order to find and seize things connected
with the crim e as its fruits or as the m eans by which it was com m itted, as well as weapons and
other things to effect an escape from custody is not to be doubted.”) (citing Carroll v. United
States, 267 U.S. 132, 158 (1925)).
Price Dissenting — 7
searches of cell phones.16 Continuing to link the propriety of a search
incident to arrest to the characteristics of a specific type of “container” is
unlikely to provide clear guidance on when a search of someone’s
personal belongings incident to arrest is permissible. Ultimately, any
confusion or inconsistency emanates from the Supreme Court’s precedent
and it’s up to that Court to fix it.
I acknowledge that the search at issue in this case might have been
justified as a “present” inventory search rather than as an “inevitable”
one, if that was what occurred.17 But that theory requires proof of an
established departmental policy to inventory such property at the airport
as well as proof that the policy was followed.18 The State did not make
16
See Birchfield v. North Dakota, 136 S. Ct. 2160, 2184 (2016) (holding that the Fourth
Am endm ent prohibits warrantless blood tests incident to arrest for drunk driving); Riley, 573
U.S. at 403 (“Our answer to the question of what police m ust do before searching a cell phone
seized incident to an arrest is accordingly sim ple—get a warrant.”).
17
See South Dakota v. Opperm an, 428 U.S. 364, 369 (1976) (explaining that inventory
procedures serve three purposes: (1) to protect the owner’s property while it is in police
custody; (2) to protect the police against claim s or disputes over lost or stolen property; and
(3) to protect the police or public from potential danger); Vargas v. State, 542 S.W .2d 151,
153–54 (Tex. Crim . App. 1976) (finding the Suprem e Court’s reasoning and policies for
inventory searches stated in South Dakota v. Opperm an “fully applicable” to the inventory
search in the case); see also Florida v. W ells, 495 U.S. 1, 4 (1990) (“[A]n inventory search
m ust not be a ruse for a general rum m aging in order to discover incrim inating evidence.”).
18
Moberg v. State, 810 S.W .2d 190, 195 (Tex. Crim . App. 1991) (noting that inventory
searches m ust be carried out pursuant to police departm ent policy and that the State m ust
show that an inventory policy existed and that the policy was followed to justify an inventory
search); see also Trujillo v. State, 952 S.W .2d 879, 882 (Tex. App.— Dallas 1997, no pet.)
(holding that search of locked bank bag before it was placed in the property room was a valid
inventory search because it was conducted in light of established departm ental policy).
Price Dissenting — 8
that argument to the trial court and the record doesn’t support it.19 I
would not remand the case for the court of appeals to address an
argument that the State isn’t even making.20 I would simply affirm the
court of appeals opinion and wait for a case in which the issue is squarely
presented. With these thoughts, I respectfully dissent.
Filed: September 23, 2020
Publish
19
In fact, at the suppression hearing, the State m ade the following statem ent: “W e don’t
have a warrant and none of the other exceptions to the warrant requirem ent obviously apply
but the search incident to arrest exception.” II R.R. at 31.
20
See Florida v. W ells, 495 U.S. 1, 4 (1990) (“Our view that standardized criteria, ibid,
or established routine, Illinois v. Lafayette, 462 U.S. 640, 648, 103 S. Ct. 2605, 2610, 77
L. Ed. 2d 65 (1983), m ust regulate the opening of containers found during inventory searches
is based on the principle that an inventory search m ust not be a ruse for a general rum m aging
in order to discover incrim inating evidence.”).