This dissent is respectfully filed. I do not agree with the majority in their holding that the private search, conducted by Braquet, the rightful owner of the stolen articles, was abrogated by the later appearance of the police at the property of the Appellant. I maintain the purpose of the Fourth Amendment of the United States Constitution and Article 1, section 9, of the Texas Constitution was to protect the private citizen's rights and privileges against unlawful,unreasonable, governmental intrusions and not reasonableinquiries and searches conducted by private citizens. Burdeauv. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).
The law is clear that a private search need not be completely free from any kind *Page 749 of police involvement and still constitute a constitutional search. The Fourth Amendment cases refer to this situation as the "gray area". Modern authorities have decided privately initiated searches that fall in the "gray area" must be resolved on a case-by-case basis. U.S. v. Walther,652 F.2d 788 (9th Cir. 1981).
In order for a private citizen to become an instrument or agent of government, I believe that two factors must exist; that is, (1) that the government knew of, and acquiesced in, the intrusive conduct and (2) whether the party performing the search intended to assist the officer or to further his own ends. U.S. v. Miller, 688 F.2d 652 (9th Cir. 1982). Here, the owner, Braquet, was attempting to locate and possess his own property.
If the state's involvement in the private search constitutes only an acquiescence, the private search is not transformed into a state search. The state must be the party to instigate, encourage or participate in the search in order for the Fourth Amendment to be applicable. U.S. v. Coleman,628 F.2d 961 (6th Cir. 1980).
Neither presence at the scene by police (even if the police asked a victim to identify some articles), nor the police authorizing a particular type of search by the private individual will cause the application of the Fourth Amendment.U.S. v. Walther, supra; U.S. v. Miller, supra; U.S. v.Coleman, supra. The Fourth Amendment prohibits governmental action and not private citizen action.
The test in determining whether a private citizen acted as an agent or instrument of the state is to look at the facts in light of the circumstances of the case. In the case at bar, the theft victim, Gene Patrick Braquet, was the instigator of the search. Gene Braquet was the one who phoned the police and asked them to back him up. Braquet knocked on the Appellant's door. No one answered. Braquet was the one who spotted his tires, wheel and other articles situated in plain view. These articles were the property of Braquet without any doubt. Braquet located other items that belonged to him. Braquet and another person, a private individual, took other items out of a shed. Braquet used a cinder block to look inside an open window. No curtains obstructed his view. All the facts show that Gene Braquet, a private citizen, was the instigator or initiator of the search. Clearly, no criminal trespass occurred.
Matters and things that are open to view and open and obvious are not covered by the Fourth Amendment. See Oliver v.U.S., 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984);Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hester v. U.S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). If an accused person leaves his window uncurtained, he may not complain if another private citizen comes upon his property and observes goods stolen from him, the lawful owner. Heath v. State, 161 Tex.Crim. 323,276 S.W.2d 534 (1955). It was reasonable, logical and necessary for the private, lawful owner to look into the house to see if his other valuable items were there, since all of his property was not, at first, detected outside. This action was still private action. See U.S. v. Dunn, 480 U.S. ___, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); California v.Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Katz v. U.S., supra.
The record clearly demonstrates that the search originated by Braquet and through his independent motivation the search was conducted. Any presence of the police was due to Braquet's requests and demands. Mere presence of the officer is not enough to make the investigation and search impermissible under the Fourth Amendment.
The presence of Officer Hale on the Appellant's property was reasonable under the circumstances. The taking of photographs and standing on the cinder block were also reasonable under this record. Under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the conduct by Officer Hale, on the property, was only one factor to be considered under the "totality of the circumstances" standard for evaluating the validity of a search warrant. I quote fromIllinois v. Gates, supra: *Page 750
"This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific 'tests' be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a 'practical, nontechnical conception.' Brinegar v. United States, 338 U.S. 160, 176, 93 L Ed 1879, 69 S Ct 1302 (1949). 'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id., at 175, 93 L Ed 1879, 69 S Ct 1302 [at 1310]. Our observation in United States v. Cortez, 449 U.S. 411, 418, 66 L Ed 2d 621, 101 S Ct 690 (1981), regarding 'particularized suspicion,' is also applicable to the probable-cause standard:`The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and
so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'"
Officer Hale contemplated that a subsequent search warrant would be issued in the early morning hours. He wanted to make sure that the informant's information given to him was reliable and, indeed, correct and accurate. It was only reasonable for him to view the stolen items since he was present and Braquet requested same. Hale only could make sure the informant's veracity, reliability and basis of knowledge were credible and sufficient by viewing the items. Any defect in the affidavit was cured by the warrant being issued by a neutral and independent magistrate. Once an independent judicial officer decides that there was probable cause for a warrant, then technical defects, if any, become cured. The proper checks and balances, reviewing the officer's action, take place.Johnson v. U.S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). We quote from Johnson, supra [333 U.S. at 13-14, 68 S.Ct. at 369, 92 L.Ed. at 440]:
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
. . . .
"Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. . . . ."
It was in Hester v. U.S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, that the U.S. Supreme Court held that testimony of two police officers, who trespassed upon the accused's land, would not be inadmissible as having been obtained in violation of the Fourth Amendment because there was a search in an open area. Also, Texas Court of Criminal Appeals, in Crowell v.State, 147 Tex.Crim. R., 180 S.W.2d 343 (1944), has held that, if the facts are sufficient to prove a civil wrong and not a criminal violation, then any evidence obtained, or testimony given, by an officer or other person, even though the officer or other person is a trespasser, would not be inadmissible. See TEX.R.CRIM.PROC. art. 38.23 (Vernon 1979). Article 38.23 is not applicable to the case at bar. See Maryland v. Garrison, 480 U.S. ___, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); New York v. Class,475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). InMaryland v. Garrison, supra, we find [at 94 L.Ed.2d 75]:
*Page 751"The United States Supreme Court has jurisdiction to review a state court decision where the opinion of the state court (1) relies on a state constitutional provision and state cases as well as the Federal
Constitution's Fourth Amendment and federal cases, (2) does not contain any plain statement that the decision rests upon adequate and independent state grounds, and (3) indicates that the state constitutional provision is construed in pari materia with the federal constitutional provision."
The objection made by the Appellant's counsel on the introduction of the photographs of the stolen items was insufficient. The Appellant's counsel objected to all of the photographs as a group. A number were clearly admissible. Hence, error was waived. Many of the photos were of purloined, valuable articles seen and observed by the lawful owner — a private citizen — in plain view from off the Appellant's premises.
In summary, the owner of the stolen property was Gene P. Braquet. He had a wrecker service. A burglary took place there. Entrance to his business was accomplished by large bolt or chain cutters. The entry was forced.
The owner had a suspect named Robbie Wilcox. Wilcox had a particular type, or style, of gloves that were very similar in type and style to a pair of gloves found at the scene of the burglary. Wilcox told Braquet that the Appellant gave him the pair of gloves. An exhibit of the gloves came into evidence without objection.
Braquet went to the residence of the Appellant. The location of the residence was given by Wilcox. Braquet, as a private citizen, was endeavoring to find out who was responsible for the burglary. Many valuable articles were taken from Braquet's place of business. Two of his trucks were stolen. The stolen trucks were later located near China, near the L.N.V.A. Canal. The same type of gloves was found in one of the stolen trucks.
Braquet had received information that the Appellant "was pretty violent". When Braquet arrived at the Appellant's place, he recognized his own wheel and tire in open view. The owner, Braquet, knocked at the door of the house trailer but no one responded. The private citizen saw other items of his property, such as his tailgate, in plain view. Braquet could look into a little shed that was amply open and could visibly see his "control head" that was out of his own "wrecker". The control head was definitely identifiable by a coded number known to Braquet. Both of these items were in plain view and were on the outside of the trailer of Appellant. Photographs were taken of these items. The photographs were taken after a search warrant was obtained. In fact, two search warrants were obtained. The second warrant was to get access to the trailer.
Braquet could see through the window of the trailer. In the trailer were other items or articles stolen from Braquet. These items were radio equipment, a stereo and a television. Braquet said that this type of equipment had to be protected from the weather.
The following is a fair statement or summary, showing that this episode was one conducted by a private citizen. Braquet was asked:
"Q. [D]id the law enforcement officers direct your activities in walking around that property, at all?
"A. No, sir."
It was reasonable for Braquet to ask for some officer's assistance as a back up because this record shows that the Appellant had been previously finally convicted of theft, unauthorized use of a motor vehicle and burglary of a building. The jury found that all of the additional allegations and enhancement paragraphs in the indictment were true.
For the reasons above stated, I respectfully dissent. *Page 752