Gentry v. State

640 S.W.2d 899, 1982 Tex. Crim. App. LEXIS 1096

• Court: Court of Criminal Appeals of Texas
• Decided: October 27, 1982
• Docket: 106-82
• Status: Published

Opinions

OPINION ON DISCRETIONARY REVIEW WITHOUT PETITION

CLINTON, Judge.

The question presented is whether blood coursing through a human body is an “item” within the meaning of Article 18.-02(10), V.A.C.C.P., which reads as follows:

“A search warrant may be issued to search for and seize:

(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense ...”¹

The Court of Appeals concluded “that blood is an ‘item’ within the ordinary meaning of the word,” but a concurring opinion disagreed “that ‘blood’ is an ‘item’ within the meaning” of the statute. Gentry v. State, 629 S.W.2d 77 (Tex.App. — Dallas 1981). Should it be determined that the view expressed in the concurring opinion is correct, then the question becomes whether such blood is “property” within the meaning of the statute, as the State urges in its Brief on Discretionary Review.² Because the blood sample at issue was taken from appellant pursuant to a search warrant on or about August 1, 1979, we have occasion to address the last addition of “persons” to Article 18.02, supra, only as that may relate to legislative intent.³

We start with the facts related to the only issue before us. As pointed out in the opinion below, a forensic analysis of seminal fluid taken from a bedsheet on which one of the rapes of complainant occurred showed the fluid came from a person' Who is a nonsecretor, and testimony was that 18% of the male population in Dallas are nonsecre-tors. An affidavit for search warrant stated, inter alia:

“8. I believe that the blood grouping type ... of the defendant would constitute probative evidence that the defendant committed the foregoing offense. In other words, if such testing of the defendant would show that he were of the non-secretor type, such evidence would constitute probative evidence that the defendant committed the foregoing offense.”

The trial judge, sitting as a magistrate, issued a search warrant based on the affidavit, ordering “that a blood sample ... be obtained from the body of the said Defendant ... in accordance with accepted medical practices,” and commanding a peace officer

“to search for the property and items described in the attached Affidavit and to seize the same...”

The return reports that the warrant was executed “by making the search directed therein and seizing during such search the following described property, namely, blood . .. from the body of the defendant...”

Article I, § 9 of our Bill of Rights guarantees security of the people “in their persons, houses, papers and possessions” against unreasonable seizures and searches, and it mandates that “no warrant ... to seize any person or thing shall issue without describing them as near as may be, nor without probable cause...” Article 1.06, Y.A.C.C.P. provides the same statutory protection. Those constitutional and statutory provisions are implemented by applicable authorizations and limitations contained in Chapter Eighteen of the Code of Criminal Procedure.

The same act that amended Article 18.02 also added subsections (c) and (d) to Article 18.01. For a subdivision (10) warrant there is a requirement in (e) that the affidavit set forth sufficient facts to establish probable cause “(3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.” Subsection (d) limits seizure through execution of a search warrant to “the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 ... or property or items enumerated in Subdivisions (1) through (9) of Article 18.02 ...,” and further forbids a second search warrant pursuant to subdivision (10) directed to “the same person, place or thing subjected to a prior search under Subdivision (10) ...”

Two contemporaneous decisions of the Court addressed this matter in 1977, but are chronologically unrelated to the legislative amendment effective May 25, 1977: Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977)⁴ and Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977). The former held that “the taking of a blood sample is a search and seizure within the meaning of Art. I, Sec. 9 of the Texas Constitution, thus the State was required to comply with the provisions of Art. 1.06 and Chapter 18, V.A.C. C.P.” In doing so the Court expressly followed the lead of the Supreme Court opinion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).⁵ Smith v. State, supra, held that since “blood” was not listed in Article 18.02, “a search warrant may not be issued to search for this type of evidence," id., at 302. We find that the Legislature was not responding to either decision of the Court when it added “property or items” to Article 18.02.⁶

Before being amended by enactment of Senate Bill 156 Article 18.01(a) defined a search warrant as “a written order ... commanding [a peace officer] to search for any property or thing and to seize the same ...and it still does. Senate Bill 156 introduced the term “items,” and as we have indicated nothing in the legislative history sheds any light of reason for using a word having so many different meanings.⁷ Yet, in matters of statutory construction courts generally presume that every word in a statute is used for a purpose. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex.Sup.1975). And we are satisfied that the purpose has been found.

The effect of amendments to Articles 18.-01 and 18.02 is to authorize issuance of a search warrant to search for and seize “mere evidence” that Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921) had held was not obtainable through execution of search warrants. See also Abel v. United States, 362 U.S. 217, 234-235, 80 S.Ct. 683, 694-695, 4 L.Ed.2d 668 (1960). Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399 (1947). But Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) changed all that by rejecting the distinction earlier perceived “between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband ...” id., at 300, 87 S.Ct. at 1646. The Supreme Court concluded:

“But if its rejection does enlarge the area of permissible searches, the intrusions, are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of ‘a neutral and detached magistrate...’ Johnson v. United States, 333 U.S. 10, 14 [68 S.Ct. 367, 92 L.Ed. 436]. The Fourth Amendment allows intrusions upon privacy under these circumstances, and there is no viable reason to distinguish intrusions to secure ‘mere evidence’ from intrusions to secure fruits, instrumentalities, or contraband.” Id., at 309-310, 87 S.Ct. at 1651.

Soon opinions began to speak in similar terms of “items” and “items of evidence.” See, e.g., Chambers v. State, 508 S.W.2d 348, 351-353 (Tex.Cr.App.1974). Indeed, it was because “blood is not one of the items for which a search warrant may issue under Art.- 18.02,” as then drawn, Escamilla v. State, supra, at 799, that the Court soon held in Smith v. State, supra, “a search warrant may not be issued to search for this type of evidence,” id., at 302. In holding that upon probable cause it is constitutionally permissible to extract a sample of blood from a human body, the Supreme Court had discussed such a seizure and search in relation to obtaining desired evidence. Schmerber, supra, at 766-772. In that context “item” has practically acquired a technical meaning, and to become a word of art.

We are thus constrained to hold that, though “blood” is not specifically itemized in Article 18.02, it is nonetheless an item of evidence to search for and to seize which a search warrant may issue in accordance with other applicable provisions of Chapter Eighteen.⁸

The judgment of the Court of Appeals is affirmed.

ROBERTS and DALLY, JJ., concur in result.

1 . That paragraph, it will become significant to note, was added by Acts ■ 1977, 65th Leg., p. 640, ch, 237, § 2, effective May 25, 1977, the day the Governor signed Senate Bill 156. (All emphasis is added by the writer of this opinion unless otherwise indicated.)

2 . Not only is the question one .of first impression in this State, but the majority of the court below was unable to find “any other state or federal statute that requires construction of the term ‘item’ to define the permissible scope of a search.” Butler, supra, at 80, n. 2. Accordingly, seeking all aid proffered we granted the Criminal District Attorney leave to file a brief for the State. Alas, appellate counsel for appellant, who did not try the case and appears to have been appointed, since appellant was found indigent for purposes of obtaining an appellate record, has not favored us with any advocacy in behalf of appellant on our discretionary review. See, however, Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App.1982). As a matter of fact, discretionary review was granted by this Court on its own initiative. Of course, we have appellant’s brief submitted initially to this Court before the cause was transferred to the Court of Appeals, but there has been no response to the brief presently relied on by the State.-

3 . See Acts 1981, 67th Leg., p. 2790, ch. 755, § 5, effective September 1, 1981.

4 . There is a misleading statement on this score in Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979). Referring to Escamilla’s making it impossible to obtain a valid search warrant because blood was not “one of the items” listed, the Court remarks, “Since that time, Art. 18.02, supra, has been amended.” Senate Bill 156, amending Article 18.02, finally passed May 12, 1977; Escamilla was handed down May 18, 1977, and rehearing was denied November 2, 1977.

5 . “[C]ompulsory administration of a blood test ... plainly involves a broadly conceived reach of a search and seizure under the Fourth Amendment... It could not reasonably be argued ... that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons’ within the meaning of that Amendment.” See also Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982) in which a Court Panel recognized but did not decide whether Schmerber applies to taking a blood sample without a warrant in order to test for alcoholic content.

6 . Because the parties strongly dispute what the terms truly mean, we have examined the file on Senate Bill 156 officially kept by the Legislative Reference Library and have perused both the original bill introduced by Senator Bill Meier and the committee substitute that was finally enacted, as well as other related materials. The principal contribution made by the committee was inclusion of subsection (d) and its insistence that only material specified “may be seized.” Compare Oubre v. State, 542 S.W.2d 875 (Tex.Cr.App.1976), a cause originating in Tarrant County, in which seizure of personal letters and photographs not mentioned in the search warrant was approved by the Court on the ground that “it was legitimately within the scope of the affidavit and warrant issued pursuant thereto.” The opinion in Oubre was delivered November 3, 1976 — some two months before the senator from Tarrant County introduced Senate Bill 156. Nothing in Oubre nor the file on Senate Bill 156 alludes to taking blood or seizing any other particularized piece of evidence.

A Bill Analysis accompanying the report of the House Committee on Criminal Jurisprudence notes that under then existing state law, “OQtems constituting evidence of an offense are not permissible subjects of a search warrant,” and opines that in adding the language of subsections (c) and (d) and paragraph (10) the bill amends the designated sections “by expanding the current laws relative to the issuance of search warrants.”

In sum, such legislative history that is available to us fails to suggest any intent that blood was considered to be either “property of items” within the meaning of the statutes.

7 . Though common in use, “item” has varied connotations. See Black’s Law Dictionary (Revised Fourth Edition) 966-967; 22A Words and Phrases 655 and 1982 Cumulative Pocket Part 113; 48 C.j.S. 787; and any standard dictionary. In Brugioni v. Maryland Casualty Co., 382 S.W.2d 707 (Mo.1964) the court resorted to Webster’s Third New International Dictionary at 1203, and found that “items” denotes “an individual thing” such as an article of household goods — something singled out from a category of things of like kind, id., at 712. The court omitted other examples given by Webster’s: an article of apparel, an object in an art collection, a book in a library, as well as other relevant meanings: an individual object, a piece of .goods or a product or commodity. There are many more, to be sure, including finally “something unspecified.”

8 . Accordingly, we need not address the alternative question of whether blood is “property” within the meaning of the statute. Nor does the fact that in 1981 the Legislature added “(11) persons” to the list of Article 18.02 bear on the answer to the first question posed at the outset of this opinion.