Reynolds v. State

781 S.W.2d 351, 1988 WL 167702

• Court: Court of Appeals of Texas
• Decided: February 28, 1990
• Docket: 01-88-00547-CR
• Status: Published

Opinions

SAM BASS, Justice,

dissenting.

I respectfully dissent.

Appellant’s sole point of error asserts the trial court erroneously denied her motion to suppress the evidence because her rights under U.S. Const. amend. IY and Tex. Const. art 1, sec. 9 were violated upon the police officer’s entering her home without probable cause, without a warrant, and without her consent. Appellant contends her 12-year-old son was not authorized to consent to the police officer’s entry into her home.

The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. Vasquez v. State, 739 S.W.2d 37 (Tex.Crim.App.1987). The Fourth Amendment gives protection against unlawful searches and seizures, and its protection applies to governmental, not private, action. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). A wrongful search or seizure conducted by a private party does not violate the Fourth Amendment, and such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully. Id.

There is no evidence that Officer Kerr: had prior knowledge of the cocaine; had previously received information from Joshua, Claire, or any other person as to the presence of the cocaine; or had any specific knowledge that Joshua or Claire intended to look for cocaine. In the instant case, the police responded to a dispatch call. Joshua described what he had seen in the box and led the officer to the contraband, without the officer’s searching for it. The box was surrendered without a search. See Manos v. State, 659 S.W.2d 662 (Tex.App.-Houston [14th Dist.] 1983, no pet.); Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984); Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982).

Appellant cites cases wherein the police approached the occupier of the premises and instigated the search, in order to find evidence used in the commission of a crime. See, e.g., Becknell v. State, 720 S.W.2d 526 (Tex.Crim.App.1986); May v. State, 582 S.W.2d 848 (Tex.Crim.App.1979); Jordan v. State, 576 S.W.2d 825 (Tex.Crim.App.1978); Swinney v. State, 529 S.W.2d 70 (Tex.Crim.App.1975); Swift v. State, 509 S.W.2d 586 (Tex.Crim.App.1974). The case at hand does not involve officers who are in search of evidence used in the commission of a crime and are seeking permission from a 12-year-old to search a house. Rather, Joshua wanted the police to respond and directed the police to the cocaine and marijuana. Other than seizing that which was pointed out to them, the police did not conduct any type of search. The police restricted their actions to that which had been brought to their attention. The action taken by the police was based upon information and “evidence” voluntarily given to the police by a 12-year-old boy. There was no “search or seizure” by the police, just the receipt of “evidence.”

Regardless, had there been a search of the wooden box, Officer Kerr had sufficient probable cause to justify it based on the information received from Claire and Joshua. See Diehl v. State, 698 S.W.2d 712 (Tex.App.-Houston [1st Dist.] 1985, pet. ref’d). The officer, when confronted with the facts at the time, found two minor children at home alone with cocaine, marijuana, a spoon, a straw, and wrapping papers within their home. There then existed the possibility of the two minor children partaking of the narcotics with possible serious injury to them, and even the possibility of death ensuing. It should not be arguable that a warrant was not required under these “exigent” circumstances.

I find that the evidence discovered was not the result of an illegal search and seizure.

I would overrule appellant’s point of error and affirm the judgment.