Brown v. State

657 S.W.2d 797, 1983 Tex. Crim. App. LEXIS 1136

Opinions

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

McCORMICK, Judge.

This Court’s original opinion and judgment, Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981), were reversed by the Supreme Court of the United States, Texas v. Brown, - U.S. -, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), and the case was remanded for further proceedings.

Appellant now raises two questions and asks that they be resolved:

1. Did this Court rely on the United States Constitution in its decision, or did it look to Article I, Section 9 of the Texas Constitution?

2. If the Court did in fact base its decision on the Fourth Amendment to the Federal Constitution, does the Texas Constitution nevertheless provide an independent basis that would support the Court’s conclusion?

In response to appellant’s first inquiry, and as noted by the United States Supreme Court, our original opinion rested squarely on the interpretation of the Fourth Amendment in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Texas cases interpreting that decision, e.g., Howard v. State, 599 S.W.2d 597 (Tex.Cr.App.1979); DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977); Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977); and Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973). Texas v. Brown, - U.S. -, 103 S.Ct. 1535, 1537-1538, footnote 1, 75 L.Ed.2d 502.

We also answer appellant’s second inquiry in the negative, and decline his invitation to attach to Article I, Section 9 of our Texas Constitution a more restrictive standard of protection than that provided by the Fourth Amendment.

The case of Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944), appears to be dispositive of appellant’s inquiry. There the accused claimed that certain persons had violated his rights by looking into the open window of his house from their vantage point outside. The accused said this violated either the Fourth Amendment or Article I, Section 9 of the Texas Constitution, and that it also violated the laws concerning trespass, thereby rendering the evidence inadmissible in light of Article 727a (now Article 38.23) of the 1925 Code of Criminal Procedure. In discussing the defendant’s contentions, this Court said:

“The constitutional guarantee against unreasonable searches and seizures is designed to protect the private security and sanctity of one’s home, and to prevent unlawful invasion thereof. It is not a haven behind which one may seek refuge against prosecutions for violations of the law committed in his home, the evidence and knowledge of which he himself makes no effort to conceal, but permits to be done in the view of the passers-by.

“Art. I, Sec. 9, of the Constitution of this State, and the 4th Amendment of the Federal Constitution are, in all material aspects, the same.” 180 S.W.2d at 346.

We recognize that the states are free to accept or reject federal holdings and to set for themselves such standards as they deem appropriate so long as the state action does not fall below the minimum standards provided by the federal constitutional protections. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). We likewise recognize that the State of Texas has, in the past, established stricter, more protective provisions, such as providing for a statutory exclusionary rule (see Article 38.23, supra, and its predecessor) well in advance of the 1961 Supreme Court decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

But it is not the function of the judiciary to engraft such changes upon our Constitution. That function lies with the people of the State of Texas through the constitutional amendment process, and through the Legislature which has the duty and ability to make statutory change in our procedure. Since this Court’s pronouncements in Cro-well v. State, supra, almost forty years ago, there has been no groundswell to change the provisions of Article I, Section 9. And since that time, this Court has opted to interpret our Constitution in harmony with the Supreme Court’s opinions interpreting the Fourth Amendment. We shall continue on this path until such time as we are statutorily or constitutionally mandated to do otherwise.

The judgment of the trial court is affirmed.

ODOM, J., concurs in the result.