Adkins v. State

717 S.W.2d 363, 55 U.S.L.W. 2220, 1986 Tex. Crim. App. LEXIS 836

• Court: Court of Criminal Appeals of Texas
• Decided: October 1, 1986
• Docket: 1064-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of possession of tetrahydrocannabinol, a Schedule I controlled substance, and sentenced to fifteen years’ incarceration in the Texas Department of Corrections.

The El Paso Court of Appeals, after finding appellant’s conviction invalid under this Court’s holding in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1982), went on to hold, inter alia, that exigent circumstances can never be relied upon to uphold a search when a warrant was actually obtained. Adkins v. State, 675 S.W.2d 604 (Tex.App.—El Paso 1984). We granted the State’s petition for discretionary review in order to determine whether the actual procuring of a search warrant forecloses existing exigent circumstances as justification for the police officer’s action.

Officer Charles Renfro received a tip from a confidential informant, who had previously provided reliable information, that appellant met with a man nicknamed “Pollock” each week and exchanged drugs for money. The informant had personally observed “Pollock” sell narcotics. In addition, Officer Renfro was cognizant of the fact that “Pollock” had a reputation as a narcotics distributor.

On September 3,1982, approximately one week after the initial tip, the confidential informant again called Officer Renfro to tell him a drug transaction was taking place between appellant and “Pollock.” Officer Renfro went to apply for a vehicle search warrant while Officer Allen Bailey was dispatched to “Pollock’s” residence. When Officer Bailey arrived appellant’s automobile was parked in front of “Pollock’s” house. Shortly thereafter appellant and “Pollock” exited the house. Appellant took a package from the back seat of his car and handed it to “Pollock” who went back into the house. Appellant got into the car and drove to a nearby bar.

Officer Renfro joined Officer Bailey as he waited outside the bar. Appellant left the bar with another person and both got into appellant’s car and started to drive away. Officers Renfro and Bailey stopped appellant’s car as it turned from an alley into the street and executed the search warrant obtained by Officer Renfro.

A search of the vehicle revealed three guns: a loaded automatic pistol, a loaded Colt .45 pistol, and a loaded double-bar-relled shotgun; 34 grams of marihuana and 80 grams of hashish. Additionally, appellant was carrying almost $1,000 in cash.

For reasons adequately explained in the Court of Appeals opinion the affidavit used to obtain the search warrant was deficient and thus the search warrant was invalid. The State argued that even if the warrant were invalid, the automobile exception to the warrant requirement supported the search and resulting seizure. However, the Court of Appeals held that no such exigent circumstances could be relied upon when a search warrant was actually obtained. Adkins, supra at 608.

Initially, we must determine the validity of the per se rule established by the Court of Appeals in the instant case. The State argues that the fact that the officers obtained a search warrant should not have any bearing on whether or not the objective facts of the case support an exception to the warrant requirement. Appellant counters that the exigent circumstances exception to the warrant requirement only applies to warrantless searches and has never been applied to cases where a search warrant was actually obtained but invalid. This is simply not true.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the United States Supreme Court invalidated a search warrant for an automobile and reversed the defendant’s conviction. However, even given this disposition of the case, the Supreme Court considered alternative justifications for the search offered by the State. Among these alternative justifications was the automobile exception to the warrant requirement. The Supreme Court rejected the exigent circumstances argument, not because the officers actually obtained a defective warrant, but because most of the relevant factors were not present, i.e., the car was parked rather than moving at the time of the search, no contraband or weapons were involved, and no confederates were waiting to move the evidence.

Similarly, in Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972), this Court invalidated a search warrant resulting in the reversal of the defendant’s conviction. However, prior to so holding, the Court analyzed the facts of the case to determine if the search could be upheld under an exception to the warrant requirement. This Court found no exigent circumstances existed at the time of the search because the defendant was in custody, the police had the keys to the car, and there was no reason to believe that another person would move the car.

In Lowery v. State, 499 S.W.2d 160 (Tex. Cr.App.1973), this Court expressly approved of this procedure with regard to arrest warrants:

“Having found the affidavit invalid and having concluded a lawful arrest could not have been made with the arrest warrant, we look for a basis upon which the arresting officers could have effected a warrantless arrest.” At 164.¹

Simply because the facts of an individual case do not fit neatly into one of the exigent circumstances exception does not mean that such an analysis has never been done. In point of fact, several federal cases have upheld searches based upon exigent circumstances after the search warrant was invalidated.

In United States v. Clark, 559 F.2d 420 (5th Cir.1977), the Circuit Court of Appeals held that “it is well established that evidence gained by a search conducted under authority of a defective search warrant may still be admissible if an exception to the warrant requirement is present.” In Clark, supra, the exigent circumstance utilized to uphold the search was the automobile exception.

Similarly, in United States v. Poole, 718 F.2d 671 (4th Cir.1983), the Circuit Court of Appeals held that “any defects in the warrant are irrelevant and that exigent circumstances justified the warrantless search.” At 675.²

We hold that the actual procuring of a warrant does not preclude the use of exigent circumstances to justify a search should the warrant fail. When this occurs the search should be treated as one proceeding without a warrant and the facts of the case should be reviewed to determine whether the search can be upheld under a warrant exception. As this court has many times pointed out, the question of whether a search is reasonable under the Fourth Amendment is not calculable under a per se rule but should be decided on a case by case basis. Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979); Rivas v. State, 506 S.W.2d 233 (Tex.Cr.App.1974). The facts of the particular case either excuse or proscribe the actions of the officers involved. The fact that the procurement of a warrant was attempted does not insulate those facts from review. Indeed, such a result would be but another excision of the Fourth Amendment protection against unreasonable searches. Police officers put in a situation like the instant one would be discouraged from attempting to procure a warrant lest the entire case stand or fall with that warrant. Thus, the sound principle of review by a “neutral and detached magistrate” would be removed from yet another class of search warrant cases.

Accordingly, the judgment of the Court of Appeals reversing the trial court is vacated and remanded to the Court of Appeals to determine whether there were exigent circumstances.

1 . See also Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

2 . See also United States v. Chuke, 554 F.2d 260 (6th Cir.1977).