State v. Johnson

WILSON, Justice,

dissenting.

I respectfully dissent.

The majority observes that the entire inquiry is over with our presumption that the trial court found whatever facts were needed to support its ruling, unless the record shows either of the following: (1) that the evidence at the suppression hearing would not support any reasonable finding that the searches were unlawful; or (2) the evidence clearly and convincingly shows that suppression was erroneous as a matter of law. It is true that the trial court is the exclusive finder of fact in a suppression hearing and may choose to believe or disbelieve any or all of a witness’s testimony. Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). However, if appellate review for abuse of discretion is to be a meaningful exercise, we must be free to reverse those suppression orders that are based on findings contrary to all the evidence presented in the hearing, or upon erroneous legal conclusion based on uncontroverted facts.

I would conclude from the analysis below that the legal conclusions made by the trial judge from uneontroverted evidence would not support the trial court’s findings that searches two, three, four and five were unlawful. I would reverse the corresponding suppression orders.

I agree with the majority that search one, the warrantless search of the Sweeny Funeral Home on the day of the shooting, was unlawful. I would, therefore, affirm point of error one and the corresponding suppression order.

Search 2:

September 30, 1991; search of the hearse without a warrant.
(Relevant to points of error two, three, four, and five)

When Deputy Cisneros stopped Johnson on Highway 288-B in Angleton, he testified he did so because of information that Johnson was illegally transporting a body. While Deputy Cisneros was talking with Johnson, standing at the back of the hearse, two more law enforcement officers drove up: Deputy Anderson and Lieutenant Jeff Gillenwaters. Deputy Cisneros testified that Lieutenant Gillenwaters was talking to someone on his ear phone, then got out and instructed him “to place Mr. Johnson in custody for investigative hold through Sweeny Police Department. And for — for the theft of this corpse.” At that time, Deputy Anderson, also of the Brazoria County sheriffs department, arrested Johnson and transported him to the county jail.

Deputy Cisneros drove the hearse to the sheriff’s department patrol office. While he was in the hearse, he made a cursory visual search of the interior, and he saw Prosen’s body lying in the back of the hearse. He did not open the glove compartment at this time. When Deputy Cisneros delivered the hearse to the police station, they conducted an in*296ventory search, which yielded, among other things, “some life insurance papers.” The trial court granted Johnson’s motion to suppress the evidence gained in this inventory search.

In points of error two, three, four, and five, the State asserts the trial court erred in suppressing evidence obtained from the war-rantless inventory search of the hearse on September 30,1991. The motion to suppress alleged that the search was in violation of the following: (a) the fourth amendment of the United States Constitution; (b) article I, section 9 of the Texas Constitution; and (c) the Texas Code of Criminal Procedure.

In point of error two, the State alleges Johnson has no standing to challenge the search. I agree with the majority’s analysis of Johnson’s standing and its conclusion that Johnson could indeed contest the search.

My analysis requires the following observation at this point: The State asserts in point of error three that the stop was lawful, but it does not address the legality of the arrest under that point. Nor does the State assert under point of error four that the arrest was lawful. In its argument under point of error five, the State asserts that “the arrest and the impoundment are lawful.” The distinction between the stop and the arrest is important to both the legal and the factual analyses. The State did not obtain any evidence as a result of the stop prior to the arrest. It obtained evidence in the inventory search that followed the arrest. In reviewing the order on this motion to suppress, it is essential to determine whether the arrest was lawful.

Deputy Cisneros testified that he received a call that Johnson was transporting a “stolen body” in the hearse. If Deputy Cisneros had information that Johnson was suspected of transporting a “stolen body,” or “illegally transporting a body,” then this would be a reasonable basis for the stop. On direct examination, Deputy Cisneros testified as follows:

Q How is it that you happened to come into contact with the defendant?
A On that day, I got a call on some information that a subject driving a black Cadillac hearse was possibly back in route through the Angleton area, with a — and possibly, in possession of a stolen body.
Q I’m sorry. A stolen what?
A A stolen body, corpse.
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Q Did you spot a Cadillac hearse?
A Yes, I did, sir.
Q Did you stop that Cadillac?
A Yes, I did.
Q And can you tell us who was driving the hearse?
A The driver was identified as Jay Johnson.
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Q Did you prepare a report about your stopping those — the vehicle stop of the defendant?
A Yes, sir, I did.

(Emphasis added.)

On cross-examination, however, Deputy Cisneros conceded that his written report said nothing about the dispatcher informing him that the hearse was transporting a body illegally, but simply “transporting a body”:

Q Now, the information — so you contacted dispatch, and they advised you what?
A They advised me to be on the lookout for a subject driving a black Cadillac hearse that’s possibly in route from— through the Angleton area, from Houston.
Q And for what reason were you to keep a lookout for that?
A For the sole reason of trying to get him stopped due to him possibly having a stolen body in the back of it.
Q Okay. Now, that’s not what your report says, is it?
A No, sir.
Q Your report says that you were advised to watch for Jay Johnson driving a black Cadillac hearse which was transporting a body; isn’t that correct?
A Right. Right.
*297Q There’s nothing against the law about transporting a body, to your knowledge, is there?
A No, sir.
Q But that’s what your report says?
A Yes, sir.
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Q Was there any other offenses that you observed to be committed by Jay Johnson or the vehicle prior to the time that you made the stop?
A Prior to the time I made the stop.
Q Yes, sir?
A The information I got through my dispatcher was that the — that due to the circumstances of the investigation of why I stopped him, of the investigation going on in Sweeny, that’s why he was stopped. Yes.
Q Because of the investigation. But for no other reason?
A Right. No other reason besides that.
Q No other offense was committed in your presence, right?
A Right.
Q Were you told of any other offenses other than the transportation of the body?
A I was just told of the investigation that was going on in Sweeny at that time.
Q The homicide investigation?
A Yes, sir.
Q Were you told to arrest Mr. Johnson at that time, for the offense of murder?
A Prior to the stop, no I was not told to arrest him.
Q Okay. Were you told to arrest him for any reason at the time you made the stop?
A No, sir.
Q You were just asked to stop him; is that correct?
A Yes, sir.
Q Was there anything else communicated to you, other than just to stop him?
A No, sir.
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Q Did you tell him he was under investigation for suspicion of transporting a body?
A Right.
Q Or stealing a body?
A Right.
Q What did you tell him. Stealing or transporting?
A Stealing a body.
Q Stealing a body?
A Right. Or — I didn’t actually say the word stealing a body. I said that the body was illegally obtained from somewhere in Houston.
Q Okay. Your information was, it was illegally obtained?
A Right.
Q And why does your report say transported?
A Because the body was in the back of a car.
Q Well in other words, your testimony, here, today, was that your information you received by dispatch was of a stolen body. But your report doesn’t say anything about a stolen body in it, does it?
A No, it does not.
Q And why is that?
A Because at the time the — the dispatcher told me that she — from what I recall, my phone conversation was due to the investigation in Sweeny. They were asking me to stop the car, to identify the driver Jay Johnson, if he was in that car, and to see if that body was — was in back of his car.
Q Well—
A And that’s why I’m saying transporting a body, because, you know, I figured that if he’s in a black hearse, he’s transporting a body in the back.
Q Well, it’s not unusual to see cars going up and down the highway, hearses going up and down the highway carrying bodies, is it? You’ve seen that many times, have you not?
A Sure. Sure.
*298Q Specifically, what was the dispatch to you? Was it about a body being transported?
A Body being transported.
Q Body being transported. There was nothing about it being stolen, was it?
A Right. No, sir, it was not. It was not.
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Q Let me back you up. You told him why you stopped him. Did you tell him you stopped him because you had a dispatch that he was transporting a body?
A Right. Right.
Q Nothing about a stolen body, but he was just transporting a body?
A Right.
Q And then, another deputy showed up. Is that correct?
A Right.

(Emphasis added.)

As the above excerpt shows, Deputy Cisne-ros conceded that the dispatcher had not actually used the word “stolen” in reference to Edwina Prosen’s body. However, in addition to Cisneros’ testimony, Chief Murphy testified (on cross-examination) that Robert Prosen came to the Sweeny Police Department after 6:00 p.m. on September 30, and reported that “the body had been removed from the funeral home, by force [.] ” Chief Murphy testified that he then called the Bra-zoria County Sheriffs Office and informed them as follows:

A I advised them that I had information that the body had been taken from the funeral home without permission of the family and had been taken by force, was in the funeral home hearse, and probably headed back towards Sweeny and that Jeffrey Prosen, the son of the deceased, had gone to meet with Mr. Johnson. And it was possible that one or both parties were armed. And we feared a conflict, should they meet.
Q Okay. Well, there was nothing, then, that was communicated to the Sheriff’s Department, the body was, indeed, stolen, was there?
A It was taken without 'permission. And it was taken by force.
Q All right. That’s what you communicated to the Sheriffs Department.
A I’m not sure I used the word that actual theft had occurred.
Q Okay. And that was all based on information that was related to you by Robert Prosen?
A Yes.
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Q So, you asked the Sheriff’s Department to try to stop Mr. Johnson; is that correct?
A Yes.

(Emphasis added.)

The trial court also had before it the source of Chief Murphy’s information, Robert Prosen, who testified on direct examination as follows:

Q Did you, at any time, designate Jay Johnson as one person that would be able to pick up your mother’s body?
A No. In fact, I specifically stated that he was not.
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Q Would you tell us what you told them [Escort Embalming Service]?
A Yes. I spoke with a fellow named Fred Allen, I believe, on the night of the 29th of September. And in that discussion, we—it was very clearly stated that I was the executor of the estate, son of Edwina Prosen and was responsible for my mother and didn’t want her body released to anybody but myself or my two brothers.

On cross-examination, he repeated this assertion that he had informed the Sweeny Police that his mother’s body had been taken from Escort Embalming Service by force and without authorization:

Q Did you report or call the police and tell anyone at the police agency that your mother’s body had been stolen?
A I did talk to the Sweeny Police Department.
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*299Q Was that after your mom’s body had been removed from Escort Embalming?
A Before and after.
Q Well, tell me just about after. Who did you talk to, first of all?
A The chief of police.
Q And what did you tell or say to the chief of police?
A At that time, I was informed that my mother’s body had been taken, without my authority. And I asked the chief if there was something that could be done to secure her, because I was responsible for her. The family.
Q Did you tell Chief Murphy that someone had overpowered the attendants at the funeral home and taken the body by force?
A I believe that. Yes. I believe I told—
Q You told that to Chief Murphy. I’m not asking you what you were told. I’m asking you what you told Chief Murphy. What did you tell him?
A I believe I told him that.
Q You told him that someone had overpowered some attendant or someone at Escort Embalming and taken you mom’s body by force?
A No someone. Jay Johnson.

(Emphasis added.)

Most of defense counsel’s cross-examination, other than the excerpts above, focused on the accuracy of Robert Prosen’s assertions and beliefs about: (1) the alleged forceful, unauthorized taking of his mother’s body; (2) whether Edwina Prosen and Jay Johnson might have entered into a common-law marriage without Robert Prosen’s knowledge; and (3) whether Robert Prosen was actually the executor of his mother’s estate at that moment. Defense counsel was evidently attempting to show that Robert Prosen was mistaken about the legality of Jay Johnson’s removal of Edwina Prosen’s body. This issue, however, does not address the legality of the stop. The stop is lawful if it is reasonable, even if the police ultimately are proven to be mistaken on their legal presumptions.

The trial court took judicial notice of Tex. Health & Safety Code Ann. § 711.002 (Vernon 1992), which covers the disposition of remains and the duty to inter. It provides, in pertinent part, as follows:

(a) Unless a decedent has left other directions for the disposition of the decedent’s remains, the following persons, in the priority listed, have the right to control the disposition, including cremation, of the person’s remains, shall inter the remains, and are liable for the reasonable cost of interment:
(1) the decedent’s surviving spouse;
(2) the decedent’s surviving adult children;
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(b) A person listed in Subsection (a) has the right, duty, and liability provided by that subsection only if there is no person in a priority listed before the person.

(Emphasis added.)

As this code section indicates, a decedent’s spouse has priority over adult children in the right to dispose of remains. If Jay Johnson had in fact entered into a common-law marriage with Edwina Prosen, then he had the right under section 711.002 to remove her remains from Escort Embalming Service. This does not, however, address the reasonableness of the stop. The police could have been mistaken about Jay Johnson’s right to remove Edwina Prosen’s remains, but such a mistake would not make the stop unreasonable.

We do not know if the trial court found a common-law marriage between Johnson and Prosen. Such a finding would be irrelevant, however, to determining the legality of the stop. If the trial court based its suppression order on finding a common-law marriage, this was error, regardless of whether a common-law marriage actually existed. All that matters here is whether Deputy Cisneros had reason to believe that Jay Johnson was transporting a stolen body and the facts are undisputed on that point. He testified that he received a dispatch to that effect, and Chief Murphy testified that this was what he had told the sheriff’s office.

*300With the evidence before it, the trial court could only have found that Deputy Cisneros had reason to stop Jay Johnson in the hearse. If the trial court based its suppression order on a legal conclusion that the stop was unreasonable given the undisputed facts, this was error. The information before the trial court could not support a reasonable finding that the stop was unlawful. I would conclude that the stop was reasonable as a matter of law under these facts. But this does not yet reach the suppression of any evidence, as the continuing analysis shows.

No evidence was obtained as a result of the stop itself, because neither Deputy Cisne-ros nor any other officer searched the hearse immediately following the stop. The search followed the arrest. Therefore, we must consider whether the arrest was valid. The State can legally conduct a search pursuant to a lawful arrest. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973); Carrasco v. State, 713 S.W.2d 120, 122 (Tex.Crim.App.1986). If the record shows that the arrest was lawful, then the evidence from the inventory search was obtained lawfully, and the trial court abused its discretion in suppressing it. On the other hand, if the trial court could legally conclude the arrest was unlawful under the facts, then suppression was proper. Wade, 814 S.W.2d at 764.

Deputy Cisneros testified that he and Deputy Anderson arrested Johnson on Lieutenant Gillenwaters’ orders.1 Neither Deputy Anderson nor Lieutenant Gillenwaters testified at the suppression hearing. The only testimony concerning the basis for Johnson’s arrest came from Deputy Cisneros on cross-examination. Deputy Cisneros testified that he thought he had probable cause to arrest Johnson for transporting a body that Johnson had obtained illegally. This was the same reason he gave for stopping Johnson. He did not testify that he arrested Johnson for suspicion of murder.

The “totality of the circumstances” test applies for determining probable cause for warrantless arrests. Hafford v. State, 828 S.W.2d 275, 277 (Tex.App.—Fort Worth 1992, pet. ref'd), cert. denied, Hafford v. Texas, — U.S. -, 113 S.Ct. 1313, 122 L.Ed.2d 700 (1993). Deputy Cisneros did not testify that he stopped Johnson for suspicion of murder. He testified only that he stopped Johnson for illegally transporting a body. His testimony was later undermined when he acknowledged that his report only stated that the dispatcher said “transporting a body” without specifically stating that the transportation was in violation of the law.

Having already concluded that the stop was reasonable, I turn to whether the officers had probable cause to arrest Johnson. If the trial court could reasonably have found that the officers had no probable cause to arrest Johnson, then suppression was proper. Wade, 814 S.W.2d at 764. This is true regardless of the trial court’s implicit finding on the legality of the stop. For suppression to be proper, we must conclude that the trial court found that the officers had no probable cause to arrest Johnson.

In light of the “totality of the circumstances” set forth above, Hafford, 828 S.W.2d at 277, we must consider Deputy Cisneros’s testimony about the arrest. Direct examination:

Q Did you subsequently place Mr. Johnson in custody?
A Yes, sir, he was.
Q He was placed in custody?
A Yes, sir.
Q By you?
A No. Not by me.
Q Who placed Mr. Johnson in custody?
A I believe it was Deputy Anderson.
Q Okay. Did you transport Mr. Johnson?
A No, I did not.

Cross-examination:

Q What happened, then? What happened, next?
A Then, my patrol lieutenant, Jeff Gillen-waters, showed up. And he was — I don’t know who he was talking to on his car phone, but he was talking to somebody on his car phone. At that time, *301nothing really happened for a couple of minutes.
Q What was going on during that time. Nothing? Nobody was—
A Yeah. We were just standing around.
Q Nobody was looking in the vehicle?
A No. No. Not at that time.
Q Okay.
A We waited. Myself and Mr. Anderson waited with Mr. Johnson, in back of the Cadillac hearse. And until lieutenant finally come out of his car. He got through talking on the phone. He was — we were then told to place Mr. Johnson in custody for investigative hold through Sweeny Police Department. And for — for the theft of this corpse.
Q For the theft of the corpse?
A Right.
Q Okay. All right. So, that was Jeff Gillenwaters telling you those things, the deputy?
A Yes.
Q And he is with the Sheriffs department?
A Yes, sir. He was at the time.
Q Is he an investigator with the Sheriffs Department at the time?
A He was my patrol lieutenant.
Q Patrol lieutenant? Now, after — after you were advised by Jeff Gillenwaters to place him in custody, what did you do?
A I assisted Mr. Anderson, Deputy Anderson in placing the — Mr. Johnson in custody. He was searched and placed in back of the patrol ear.
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Q Can you tell me why you filled out a misdemeanor miscellaneous report in connection with this incident?
A Why.
Q Yes, sir?
A Because it wasn’t pertaining to our department. It was pertaining to the Sweeny Police Department.
Q Well, do you use misdemeanor miscellaneous reports for incidents that arise out of other departments?
A Yes, we do.
Q Well, what was arising out of the other department was the allegation of murder; isn’t that correct? Investigative hold for murder?
A No, sir. From the point — I called dispatch, and she told me what was going on in Sweeny, that he was — from what I got out of that conversation was that the — this whole incident was, you know, was occurring from another police department. Not from us.
Q I understand that. But regarding investigative hold for the offense of murder, right?
A Right.
Q If there was a theft of a corpse, that was something that occurred in your presence, because you were there; and you saw the corpse in his possession, correct?
A Right. I don’t know where they got their information, but that was what I was told.
Q Would it be fair to say you didn’t have any probable cause at the time to stop and arrest Mr. Johnson for theft of a corpse, did you?
A For the theft of a corpse.
Q Yes, sir?
A From the time that I got the phone call, yes, sir, I had — you know, I had reason to believe that he was possibly in possession of a corpse or a body.
Q Well that’s no—
A From what I was told by the dispatch office.
[DEFENSE COUNSEL]: I’ll object to the response, your Honor.
THE COURT: Sustained.
Q Officer Cisneros, my question is that at the time that you had Mr. Johnson out there at the roadside, you did not have probable cause to arrest him for theft of a corpse, did you?
A That was the reason I stopped him. That he was — that he had illegally or unlawfully obtained a body from Houston and was back in route over here with it. That was my presumption.
*302[DEFENSE COUNSEL]: I’m sorry. I object. It’s still not responsive. It’s a yes or no question.
THE COURT: Well, I’m going to overrule it, now, as it stands. You may pursue your yes or no, if you’d like, though.
Q Yes or no. You didn’t have probable cause?
A Yes, I believe I did.
Q You felt you had probable cause?
A Yes, sir, I did.
Q "What was the probable cause?
A The probable cause was due to the impending investigation from Sweeny, and from—and the information that I got. That. Yes. And I thought I was right in stopping that car.
Q Well, you didn’t have any details of the information out of Sweeny, did you. You didn’t have any details coming from Sweeny at that time, did you?
A No. They just gave me a brief rundown on what happened over there.
Q And the only other information you had was that according to someone, that Mr. Johnson had overpowered somebody at the embalmer and had taken a body, correct?
A Not that he had overpowered anybody, but from what—
Q So, you didn’t even know that at the time, did you?
A Right.
Q Okay. All you knew was that he was—you were told by dispatch, I believe your testimony is, was that he is transporting a body?
A Yes, sir.
Q And that you were asked to stop him?
A Unlawfully transporting a body.
Q And you were asked to stop him?
A Yes, sir, I was.
Q That’s all the information you really had at that time?
A That’s all the information I really had at that time.
Q When you got the vehicle back to the Sheriffs Department, what did you then do?
A Back behind the patrol office, I got out of the car. I waited for [Ljieutenant Gillenwaters to arrive at that time. We contacted our I.D. Division to come photograph the vehicle, and then, I conducted an inventory.

(Emphasis added.)

Under the most arduous cross-examination, Deputy Cisneros maintained that he stopped Johnson for “[Unlawfully transporting a body [,] ” and that he arrested Johnson on the orders of Lieutenant Gillenwaters “for the theft of this corpse.” Deputy Cisneros testified that immediately prior to Lieutenant Gillenwaters’ instructions to place Johnson in custody, Gillenwaters had been on the phone in his police car. Although Gillenwaters did not testify, Chief Murphy testified that he had called the Sheriffs office to ask them to stop Johnson for transporting a stolen body. Chief Murphy placed this call after Robert Prosen came in to his office, which he testified was “After 6:00. 6:00, 7:00 o’clock, probably.” Johnson was stopped at approximately 7:12 p.m. and placed in custody approximately 20 to 30 minutes later. The unchallenged facts, taken in their totality, indicate that the officers had probable cause to arrest Johnson. Because I believe the trial court based its decision upon a misapplication of legal principles to undisputed facts, rather than the finding of a material fact at variance with the State’s position, I would find the trial court abused its discretion.

I would sustain point of error three.

In points of error four and five, the State asserts that the warrantless inventory search of the hearse was lawful under the United States and Texas Constitutions. This is correct. The police are authorized to conduct an inventory search of a suspect’s vehicle following a lawful arrest. Illinois v. Lafayette, 462 U.S. 640, 643-44, 103 S.Ct. 2606, 2608, 77 L.Ed.2d 65 (1983); Gauldin v. State, 683 S.W.2d 411, 414 (Tex.Crim.App.1984).

I would sustain points of error four and five.

*303To summarize the points of error relating to the warrantless search of the hearse (Search 2), the trial court could not reasonably have found that the stop and arrest were unlawful. By sustaining points of error three, four and five, I would hold that the trial court abused its discretion in suppressing the evidence obtained in the warrantless inventory search of the hearse.

In review, I agree that Johnson did have standing to contest the search. I would, however, sustain points of error three, four, and five, and hold that the stop, the arrest, and the inventory search were lawful.

Search 3:

October 1, 1991; search of the hearse with a warrant.
(Relevant to Point of Error 6)

On October 1, 1991, the day after Johnson’s arrest and the inventory search of the hearse, the officers searched the hearse again, this time with a warrant. The trial court granted Johnson’s motion to suppress the evidence obtained in this search. The warrant was based upon the findings from the preceding day’s inventory search, and it specifically stated that the purpose was to seize life insurance policies. I have concluded above that the trial court abused its discretion in finding the warrantless search of the hearse to be unlawful and in suppressing the evidence gained as a result.

The testimony requires the trial court to conclude that the warrant search of the hearse did not violate Johnson’s constitutional rights. We must presume that the trial court found that the warrant to search the hearse rested upon the “fruit of the poisonous tree” — the evidence gained from the previous day’s warrantless search. Such a finding, and the resultant order suppressing the evidence obtained from the search of the hearse with the warrant, constituted an abuse of discretion. Therefore, the trial court erred in suppressing the evidence obtained from the warrant search of the hearse.

I would sustain point of error six.

Search 4:

October 1-3, 1991;
Police passively received, from the Prosen family, property that the Prosen family took from the funeral home.
(Relevant to points of error seven, eight, nine, 10, and 11)

When Robert Prosen learned that Dean Johnson had filed the burglary complaint against the Prosen brothers, he offered to return all the items to Dean Johnson. However, Dean Johnson, who was Jay Johnson’s attorney, instructed Robert Prosen not to return the items to him and Prosen handed them over to the police. Dean Johnson asked the police to maintain custody of the items that the Prosens had removed from the funeral home. Chief Murphy testified that the Prosens turned over boxes containing thousands of documents that were the subject of the burglary complaint. He further testified that he considered it the duty of the police department to photograph, inventory, and list all of the items that were turned over to them in connection with this burglary charge. The trial court granted the motion to suppress all the evidence that the Prosens took from the funeral home and delivered to the Sweeny Police Department.

The majority holds that Tex.Code CRIM. P.Ann. art. 38.23(a) (Vernon Supp.1995), prevents the State from using against Johnson any of the documents that were unlawfully taken by the Prosens. I agree that the statute applies to the actions of private persons and is not limited to government agents. I also agree that the trial court did not abuse its discretion in finding that some of the items were taken unlawfully by the Prosens, thus triggering article 38.23(a). Hence, I agree with the majority’s decision to overrule point of error seven. I part company with the majority, however, in determining the effect of Dean Johnson’s instructions to both Robert Prosen and the Chief Murphy.

The majority states that the trial court could have found that Dean Johnson never consented for the police to review the evidence that the Prosens took. The evidence at the suppression hearing will not support *304such a finding. Dean Johnson complained that the Prosens had taken Jay Johnson’s property illegally. Dean Johnson then declined Robert Prosen’s offer to return whatever they had taken, and the Prosens, knowing that the items were the subject of Dean Johnson’s burglary complaint, turned everything over to the police. Dean Johnson did not testify about whether he consented to the police reviewing the evidence that the Pro-sens delivered to them. The trial court had to base its finding on the testimony of Chief Murphy. Chief Murphy testified that Dean Johnson then asked the police to maintain custody. These actions constituted Dean Johnson’s consent for the police to inventory the evidence that the Prosens took from the funeral home.

Johnson does not contend that it was illegal for the police department to receive the evidence, but he does argue that it was illegal for the police to use the evidence as they did. This is not persuasive. Dean Johnson, as Jay Johnson’s attorney, consented to such review on Jay Johnson’s behalf. Consent is an exception to the general rule that war-rantless searches are unreasonable per se. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Fancher v. State, 659 S.W.2d 836, 839 (Tex.Crim.App.1983).

Even though the trial court was within its discretion to find that some of the items had been taken illegally, the State had Johnson’s consent to review and inventory the evidence that the Prosens took from the funeral home over October 1 through October 3, 1991. Johnson’s consent operated to waive any complaint under Article 38.23(a). The court abused its discretion in suppressing evidence for which Johnson had consented to police custody and review.

I would sustain points of error eight, nine, 10, and 11.

Search 5:

October 16, 1991: search of the funeral home with a warrant.
(Relevant to points of error 12 and 13)

The final search of the funeral home was conducted under a warrant that was based on information obtained in the inventory of the evidence that the Prosens had delivered to the police. I agree with the majority’s determination that Johnson had a reasonable, subjective expectation of privacy in the funeral home on the date of search number five. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). Hence, Johnson had standing to contest this search and I agree with the decision to overrule point of error 12.

I disagree with the majority’s determination that the trial court could have found the Wingo warrant to be invalid. The validity of the warrant turns upon the legality of police inventory of the items delivered to them by the Prosens. I have concluded above that Dean Johnson, and by extension, Jay Johnson, consented to the police custody and inventory of everything taken by the Prosens over the three days from October 1 through October 3. The Wingo warrant was based upon documents to which the State had legal access. The warrant was valid and the October 16, 1991, search of the funeral home was valid. The trial court abused its discretion in suppressing evidence seized from the funeral home under a valid warrant.

I would sustain point of error 13.

Summary and Conclusion

To summarize, in 13 points of error, the State has appealed from five orders to suppress evidence. The trial court found, from the evidence before it at the suppression hearing, that the searches were unlawful. The majority sees no abuse of discretion in any of the five suppression orders. I disagree with the majority on four of the five. I would hold that the trial court abused its discretion by finding searches two, three, four, and five to be unlawful when the evidence at the suppression hearing will not support such findings.

I join the majority in overruling point of error one, pertaining to the suppression of the videotape from search one. Henee, I would sustain that suppression order. I also *305join the majority in overruling points of error two and 12, challenging Johnson’s standing to contest the searches of the hearse and the funeral home. I also join the majority in overruling point of error seven, addressing the meaning of the term “other person” in Article 38.23(a).

I part company with the majority on the legality of the remaining searches. I would sustain points of error three, four, five, six, eight, nine, 10,11, and 13. I would hold that the trial court abused its discretion in suppressing the evidence obtained from searches two, three, four, and five: i.e., the inventory search of the hearse without a warrant; the following search of the hearse with a warrant; the search of the items that the Pro-sens delivered to the police; and the search of the funeral home under the Wingo warrant.

Accordingly, I would reverse those four suppression orders. I would affirm in part and reverse and remand in part.

. Hearsay is admissible in a suppression hearing to determine probable cause for an arrest.