Blevins v. State

*133LEE ANN DAUPHINOT, Justice,

dissenting.

I respectfully dissent to the majority’s thoughtful opinion holding that Terry v. Ohio1 permits a police officer to ignore the clear mandate of the Fourth Amendment to the United States Constitution, which guaranteed Appellant the right to be free from unreasonable detention and search.2

The majority appears to conclude that Terry supercedes the Fourth Amendment warrant requirement. I would point out that Terry dealt primarily with the lawfulness of a pat-down search for weapons while the officer talked to a person on the street.3 The Terry court specifically refused to “retreat from [its] holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure ... or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances.” 4

To justify the unlawful detention of Appellant, the majority relies on the following authority:

• a case in which an automobile was lawfully in police custody when searched,5
• a case in which a defendant consented to the search of his vehicle after a lawful stop,6 and
• a case in which there was a search warrant for a parked mobile home involving no stop.7

No case cited by the majority deals with the controlling issue before us, which is the validity of the stop of Appellant’s automobile for the purpose of satisfying the officer’s curiosity regarding the presence or absence of the credit card or any items purchased with it.

Specifically, the officer in this case had developed probable cause over a three-day period to arrest and search two passengers in a vehicle, but made no attempt to secure either a search warrant or an arrest warrant. We are asked to review whether the officer’s action in stopping the vehicle infringed on the driver’s Fourth Amendment right to be free from unreasonable search and seizure when the officer: (1) seized the driver; (2) with no evidence or reasonable suspicion of wrongdoing on the part of the driver or that the driver was a potential witness to wrongdoing; (3) when the officer had ample opportunity to secure a warrant or to detain the passengers on the street, in their own vehicle, at their motel, and in various retail establishments; and (4) the only stated purpose for detaining the driver was to determine whether the passengers still had the property obtained with the stolen credit card.

*134Officer Eipper did not testify that he observed Appellant commit a traffic violation. His only justification for stopping the car driven by Appellant was to search the vehicle and “try to locate the scanner and the stolen credit cards;” that is, to see whether Woodall and Dotson, passengers in the vehicle, still had the property. Moreover, Officer Eipper did not suggest that he feared the scanner and credit cards would be destroyed or that Woodall and Dotson would flee. In short, Officer Eip-per proffered no exigent circumstances necessitating an immediate detention and search of the vehicle and its occupants. Indeed, Officer Eipper. had verified the informant’s tip — the theft of the credit card by Woodall and Dotson, their use of the stolen credit card to pay for a motel room, the motel where Woodall and Dotson were presently staying, and Woodall’s attempts to sell the scanner. Clearly, Officer Eipper had probable cause to justify obtaining both a search warrant and an arrest warrant for Woodall and Dotson. He made no attempt to do so.

The record shows that this was not a case in which the officer approached Appellant on the sidewalk or in an airport where she was free to walk away, not a case in which the automobile was lawfully in police custody, not a case in which the defendant consented to the search after a lawful stop for a traffic violation, and not a case in which there was a search of the vehicle but no stop. Rather, this case involved a full detention of Appellant, where Officer Eipper pulled over Appellant’s car and ordered her to get out of the vehicle. Nor is this a case in which the officer observed suspicious activity that required him to investigate, either for his own or the public’s safety or to maintain the status quo at the scene to determine whether illegal activity was occurring or had recently occurred. Nothing in the record suggests that Appellant was involved in the criminal activity for which Officer Eipper was investigating Woodall and Dotson.

Although the Fourth Amendment is commonly thought of as a limitation on the power of poliee to search for and seize evidence, instrumentalities, and fruits of crime, it also preserves the “right of the people to be secure in their persons.”8 Any “unreasonable seizure of the person is itself a violation of the Fourth Amendment.” 9

The well-established rule is that a war-rantless search is per se unreasonable unless it falls within a recognized exception to the warrant requirement. This rule has not been abrogated by the federal courts. While the Fourth Amendment still appears to require exigent circumstances to justify a warrantless search, police officers may not create the exigent circumstances in order to circumvent the warrant requirement if the officers had the opportunity to secure a warrant before the exigency was created.10 “[I]n cases where police did not avail themselves of an earlier opportunity to get a warrant, this has been a dominant factor in the holdings that there were not exigent circumstances.”11

We note that Officer Eipper did not stop Appellant’s car because he saw a traffic violation or some other offense, nor in order to learn whether criminal activity was afoot or to arrest Woodall and Dotson. Rather, he stopped Appellant’s vehicle for *135the purpose of conducting a search. Officer Eipper described no exigent circumstances justifying the search, and, since Woodall and Dotson had been traveling about in Hatton’s car, there are no grounds for holding that their presence in Appellant’s vehicle constituted exigency per se. It is undisputed that Officer Eip-per possessed probable cause to arrest Woodall and Dotson at least twenty-four hours before he conducted the search of Appellant’s vehicle. It is also undisputed that he never attempted to secure a warrant to search or arrest the two suspects. Woodall and Dotson could not destroy the evidence of their use of the stolen credit card to purchase a motel room because such evidence was not in their possession at the time of the stop. Nor, for that matter, could Woodall destroy the evidence regarding his attempts to sell the scanner.

The majority appears to hold that automobiles are a constitutional no-man’s land, as though we shed Fourth Amendment protections like a snakeskin when we enter a vehicle. Yet, in upholding DWI detentions, we have repeatedly detailed the facts creating the justification for immediate police action in stopping the vehicle. In analyzing searches of trunks of cars and containers within the vehicle, the courts have refused to recognize a blanket Fourth Amendment vacuum.

The issue before us is not whether there was probable cause to believe that Woodall and Dotson had committed a crime. The issue is whether there was a constitutionally lawful seizure of Appellant when Officer Eipper pulled over her car. Because the majority does not address this primary and controlling issue, I respectfully dissent.

. 392 U.S. 1, 88 S.Ct. at 1868, 20 L.Ed.2d 889 (1968).

. U.S. Const. amend. IV.

. 392 U.S. at 29-30, 88 S.Ct. at 1884-85.

. Id. at 20, 88 S.Ct. at 1879 (citations omitted).

. United States v. Johns, 469 U.S. 478, 484, 105 S.Ct. 881, 885, 83 L.Ed.2d 890 (1985) (holding "[a] vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search”).

. State v. Guzman, 959 S.W.2d 631, 632, 634 (Tex.Crim.App.1998) (holding automobile exception to Fourth Amendment does not require exigent circumstances in addition to probable cause).

. Powell v. State, 898 S.W.2d 821, 826-27 (Tex.Crim.App.1994) (holding even if search warrant was invalid, search of parked motor home was nevertheless justified by automobile exception to warrant requirement).

. 3 Wayne R. LaFave, Search and Seizure § 5.1, at 2 (3d ed.1996).

. Id.

. United States v. Webster, 750 F.2d 307, 327 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985).

. 3 LaFave, supra note 1, § 6.5, at 345.