Robert Henry Shepherd v. State

• Court: Court of Appeals of Texas
• Decided: June 28, 2007
• Docket: 14-06-00692-CR
• Status: Published

Opinion

Affirmed and Majority and Dissenting Opinions filed June 28, 2007

Affirmed and Majority and Dissenting Opinions filed June 28, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00692-CR

ROBERT HENRY SHEPHERD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Co. Criminal Ct. at Law No. 2

 Harris County, Texas

Trial Court Cause No. 1359600

D I S S E N T I N G   O P I N I O N

 Although it was unquestionably prudent in this case for the officers, in an abundance of caution, to enter appellant=s house to verify that nothing was wrong, the circumstances did not satisfy the requirements of the emergency doctrine so as to make any evidence they found in the house admissible.

Before entering appellant=s home, the officers in this case knew only that the front door had been left open, no one had responded when a neighbor or police had called through the doorway, and the neighbors believed that appellant was not home.  These facts do not support an objectively reasonable belief that anyone was even in the house, let alone that immediate action was needed to protect or assist them.

There being no cases that support applying the emergency doctrine under these circumstances, the majority opinion instead contends that the lack of an objective basis is overcome by the officers= knowledge and experience that open door calls to residences can involve assault victims, injured persons, and the like.  However, without additional facts objectively suggesting that any such situation was actually occurring,^[1] hypothetical possibilities do not meet the standard.  Nor can our State provide appellant less Fourth Amendment protection than the United States Constitution requires.  See Autran v. State, 887 S.W.2d 31, 36-37 (Tex. Crim. App. 1994).

More importantly, if circumstances as innocuous as this can justify police entry into private homes, then the emergency doctrine exception will largely swallow the Fourth Amendment exclusionary rule in this context and render other exceptions to the warrant requirement  unnecessary.

/s/        Richard H. Edelman

Justice

Affirmed and Majority and Dissenting Opinions filed June 28, 2007.

Panel consists of Justices Yates, Edelman, and Frost. (Yates, J. Majority.)

Publish C Tex. R. App. P. 47.2(b).

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^[1]           Compare Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1947 (2006) (holding that emergency doctrine applied because the officers were confronted with violence then occurring within the home); Laney, 117 S.W.3d at 863 (holding that emergency doctrine applied because there would have been a substantial risk of harm to the children if left in the home alone); Brimage, 918 S.W.2d at 501 (holding that emergency doctrine applied because complainant had been missing for several days and was last seen near appellant's residence); and Janicek v. State, 634 S.W.2d 687, 691B92 (Tex. Crim. App. [Panel Op.] 1982) (holding warrantless search was justified under the emergency doctrine because there was every indication that appellant was in the house, appellant had a psychiatric history , and there had been reports of a gun shot in the area); with Mincey v. Arizona, 437 U.S. 385, 393 (1978) (holding that emergency doctrine did not apply because all persons had been accounted for before the search of the residence began); Bryant v. State, 660 N.E.2d 290, 300B01 (Ind. 1995) (holding that emergency doctrine did not apply based on belief that someone may have been in need of aid when there was no evidence that a violent crime had or was about to occur).