Gearing v. State

CLINTON, Judge,

dissenting.

On any other day, having discovered that “error, if any, was not properly preserved,” this Court would simply say that the court of appeals should not have written on the question claimed to be presented, and dispose of the cause on that basis. Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984); see Laday v. State,—S.W.2d-(Tex.Cr.App. No. 399-84, delivered January 9, 1985). Today, however, the majority not only gives full treatment to the Fourth Amendment issue it believes to have been waived by appellant and finds itself in agreement with the opinion of the court of appeals, but also it gratuitously adds: “We do not interpret Article I, § 9, Texas Constitution, to require more than the Fourth Amendment in the above described situation.” Respectfully, I dissent.1

Since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court usually has not made any distinction in law between a “stop and frisk” situation and one where the citizen is already at rest. Although it quotes from the opinion in just such a case, the majority does not explain why on the facts of the matter Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983) is not controlling here.

Also we are left to wonder by what authority Officer Vaughn “asked appellant to step out and show him some identification.” That Vaughn was “where he had a right to be” is not enough under Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The majority would have it that quoted portions of the plurality opinion in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), permit what Vaughn did here.2

There is more to the first paragraph than is excerpted, viz:

“He may not be detained even momentarily without reasonable objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation to Mendenhall omitted.] If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.”3

It is clear from Brown v. Texas, supra, that Vaughn “seized” appellant.

“When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.” Id., 443 U.S. at 50, 99 S.Ct. at 2640.

*331The unanimous opinion in Brown v. Texas further pointed out that the Supreme Court has “required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity,” and then found that “[t]he flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct.” Id., 443 U.S. at 51, 99 S.Ct. at 2641.

The partial sentence reproduced by the majority is written in the following context:

“First it is submitted that the entire encounter was consensual and hence Royer was not being held against his will. We find this submission untenable. Asking for and examining Royer’s ticket and driver’s license were no doubt permissible in themselves, but when the officer identified themselves as narcotics officers, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (Opinion of Stewart, J.).”

Therefore, even under Fourth Amendment law the majority is wrong, and that is all appellant contended for in his petition for discretionary review. His first ground for review asserts that the trial court erred “for the reason that the arrest and subsequent search ... violated [his] right as guaranteed by the Fourth Amendment to the Constitution of the United States.” He does not claim that the court of appeals based its decision on state law. The State does not advance any in the motion for rehearing.4 Thus, this Court is not called on to interpret Article I, § 9, and should not do so in the first instance. See Eisenhauer v. State, 678 S.W.2d 947, 948 and 955 (Tex.Cr.App.1984).

For all those reasons I dissent.

.For reasons deemed sufficient by the judge before whose court this case was tried, hearing argument and ruling on a pretrial motion to suppress fruits of the seizure at issue here were deferred until all testimony and evidence had been adduced. Obviously the trial court did not determine that appellant had waived his motion by voicing "no objection” to admitting a holster, magazine and pistol after their chain of custody had been established. We are informed by the local district attorney that the trial court "specifically overruled the appellant’s motion to suppress because the officer’s actions in checking out the appellant were justified by seeing someone slouched down in a car at 3:00 a.m. with the motor running and lights off (R. IV-24).’’ Thus, to find waiver here is to ambush the trial judge as well as appellant.

. However, its exposition is somewhat misleading, for the material does not appear in juxtaposition. The paragraph beginning “Second" is one of several "preliminary observations” made in section II of the opinion, 103 S.Ct. at 1324, whereas the next paragraph containing a partial sentence is from section III.

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. Indeed, the district attorney submits the detention may be upheld under the "public safety" exception of New York v. Quarles,-U.S.-, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).