Hatcher v. State

916 S.W.2d 643, 1996 WL 46937

• Court: Court of Appeals of Texas
• Decided: March 5, 1996
• Docket: 06-95-00099-CR
• Status: Published

Opinions

OPINION

BLEIL, Justice.

Cheri Hatcher appeals from her conviction for the offense of possession of a controlled substance in an amount less than twenty-eight grams. She contends that the trial court erred by overruling her motion to suppress the evidence obtained during a search of her purse, arguing that the evidence was obtained in violation of article I, section 9 of the Texas Constitution. We conclude that the evidence was not obtained in violation of her rights under the Texas Constitution and affirm.

On April 23, 1994, Jason Taylor, a Mesquite police officer, saw Hatcher drive a car with no front license plate into the parking lot of a convenience store. He approached Hatcher and requested identification. When he checked her identification, he learned that there was an outstanding warrant for her arrest, and he took her into custody. Hatch-er asked him to leave her automobile in the parking lot and also asked him to get her purse from the ear, which he did. At one point the officer testified that he cheeked the purse’s contents in accordance with police policy applicable whenever an arrestee is transported to jail; he further said that he went through it in the same manner it would have been inventoried at the police station; and he said that any property taken to the police station would be inventoried. The officer looked through the purse, checking for weapons, narcotics, or contraband, and verifying the contents if Hatcher later claimed that something was missing from the purse. During this search, he found her wallet. In a compartment of the wallet was a small baggie containing a yellowish powder that was later determined to be methamphetamine.

At a suppression hearing, the trial court is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). We do not engage in an independent factual review, but instead view the evidence in the light most favorable to the trial court’s ruling and determine whether the trial court improperly applied the law to the facts. Id. Absent a showing of an abuse of discretion, the trial court’s finding should not be disturbed. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). The brief facts which we have set out above seem not to be disputed and are consistent with the facts set forth in both briefs.

The question on appeal is whether the arresting officer’s action in opening a zippered or snapped compartment of Hatcher’s wallet constituted an unlawful search under article I, section 9 of the Texas Constitution. Hatcher did not at trial, nor does she on appeal, claim that the officer’s discovery of the controlled substance violated rights granted to her by the Fourth Amendment of the United States Constitution. Were we making a federal constitutional analysis, we would find little fault with the inventory search before us.

The Fourth Amendment only requires that the inventory not be a ruse for a general rummaging in order to discover incriminating evidence. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1, 6 (1990). Police may open closed containers within closed containers so long as it is done in accordance with standardized procedures, where there is no showing that the police acted in bad faith or for the sole purpose of investigation. See Colorado v. Bertine, 479 U.S. 367, 375-76, 107 S.Ct. 738, 743, 93 L.Ed.2d 739, 748 (1987). A search is lawful for inventory purposes as a valid exception to the warrant requirement of the Fourth Amendment. Illinois v. Lafayette, 462 U.S. 640, 646-47, 103 S.Ct. 2605, 2609-10, 77 L.Ed.2d 65, 71-72 (1983).

Hatcher’s attorney asserts only that Hatcher’s rights under the Texas Constitution were violated and founds his argument on two Texas cases. The first case is Au-tran, decided by the Texas Court of Criminal Appeals; the second is Lawson, decided by a court of appeals, which purports to follow Autran. Her attorney’s argument and basis therefor is as follows: Article I, section 9 of the Texas Constitution provides citizens a greater right to privacy than does the Fourth Amendment (citing Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991)); and the Texas Constitution guarantees provide a privacy interest in closed containers which is not overcome by the general policy considerations underlying an inventory (citing Autran v. State, 887 S.W.2d 31, 41-42 (Tex.Crim.App.1994)).

The plurality opinion in Autran in fact seems to support counsel’s argument. See Autran, 887 S.W.2d at 41-42. Lawson likewise supports the argument. State v. Lawson, 886 S.W.2d 554, 556 (Tex.App.—Fort Worth 1994, pet. refd). However, the court of appeals in Lawson erroneously believed it was merely following binding precedent.¹ We decline to join our sister court or to follow the plurality opinion in Autran because we do not believe that Autran constitutes either binding precedent or sound law. It is not only sound logic that tells us that a three-judge plurality opinion is not authoritative. The Texas Court of Criminal Appeals itself has said so in plain words. See Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992) (plurality opinion of that court considered not to have significant precedential value); see also Farris v. State, 819 S.W.2d 490, 502 n. 3 (Tex.Crim.App.1990) (a two-judge plurality opinion deemed of limited prece-dential value). It is fundamental that only an opinion which is concurred in by a majority of the court constitutes a precedent. See 21 C.J.S. Courts § 141(b) (1990).

Furthermore, a more recent four-judge plurality opinion failed to even mention Au-tran in interpreting article I, section 9 as identical to the Fourth Amendment with respect to when a seizure occurs. Johnson v. State, 912 S.W.2d 227, 229-36 (Tex.Crim.App.1995). The plurality opinion affirming the court of appeals stated:

In this case, we find the appellate court’s analysis of the Fourth Amendment to be persuasive when applied to Art. I, § 9.² There is nothing in the language of Art. I, § 9 to indicate that the Texas Constitution would provide for a definition of seizure that did not include a requirement either that a suspect submit to a demonstration of authority, or that he be subjected to the use of physical force, in order to be considered to have been seized.

Johnson, at 234. Moreover, in another recent court of criminal appeals opinion, a majority of the court again avoided even mentioning Autran in rejecting a claim that article I, section 9 imposes a more restrictive standard for allegedly pretextual police stops than does the Fourth Amendment. Crittenden v. State, 899 S.W.2d 668 (Tex.Crim.App.1995). In a considerable departure from the plurality’s approach in Au-tran, the Crittenden majority held that,

[ajbsent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different than our preferred interpretation of the Fourth Amendment.

899 S.W.2d at 673 n. 8.

The whole basis of the contention on appeal being that article I, section 9 of the Texas Constitution provides greater rights than does the Fourth Amendment, we resolve this question in favor of the State and hold that the trial court properly determined that evidence of the controlled substance was admissible, it having been discovered in a proper inventory procedure. We expressly decline to treat the plurality opinion in Au-tran as precedent.³

We affirm the trial court’s judgment.

1 . The court employed the following reasoning:

In reaching our conclusion, we are mindful of our prior decision in Heitman v. State, 836 S.W.2d 840 (Tex.App. — Fort Worth 1992, no pet.), wherein we held that an inventory search of a half-opened briefcase found in an impounded automobile did not violate the defendant’s rights under cither the Fourth Amendment of the United States Constitution or under article I, section 9 of the Texas Constitution. Heitman was an en banc decision, and until Autran, was precedent for this court. See Ruth v. State, 653 S.W.2d 437, 438 n. 1 (Tex.Crim.App.1983). Although the plurality opinion in Autran does not explicitly overrule Heitman, we follow the most recent pronouncements from the Texas Court of Criminal Appeals on the validity of inventory searches under state law. As an intermediate appellate court, we follow the law as enunciated by the highest courts in this state.

State v. Lawson, 886 S.W.2d 554, 556 (Tex. App. — Fort Worth 1994, pet. ref'd).

2 . Justice Lagarde in a well-written opinion for a unanimous en banc Dallas Court of Appeals, had reasoned in part that, "We disagree that the language of article one, section nine itself shows an intent to provide a defendant greater protection under the state constitution than that provided under the Fourth Amendment.’’ Johnson v. State, 864 S.W.2d 708, 719 (Tex.App.—Dallas 1993), aff'd, 912 S.W.2d 227 (Tex.Crim.App.1995).

3 . Hatcher also contends that the search of her purse was unjustified as a search incident to arrest. She cites as authority two dissenting opinions in Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986), and argues that Autran has effectively made these dissents the current governing law on searches incident to arrest. Due to our conclusion that the Autran plurality opinion is not binding precedent, we cannot agree with this analysis.