State v. Ibarra

953 S.W.2d 242, 1997 Tex. Crim. App. LEXIS 58, 1997 WL 560904

• Court: Court of Criminal Appeals of Texas
• Decided: September 10, 1997
• Docket: 1360-95
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Texas law provides that, with few exceptions, the State must obtain a warrant before searching the place or possessions of a citizen. This requirement follows directly from our constitution, which demands that:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation.

Tex. Const. art. I, § 9. One exception to the warrant requirement involves those searches that occur by way of voluntary consent. Juarez v. State, 758 S.W.2d 772, 776 (Tex.Crim.App.1988). When challenged, however, the State must demonstrate the voluntariness of this consent by clear and convincing evidence. Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App.1972).

Here, appellee was charged with possession of between two and fifty pounds of marijuana and failure to pay marijuana tax. Ap-pellee moved to suppress evidence obtained during the search of his car on the ground that he did not voluntarily consent to the search. The trial court granted appellee’s motion, finding that the State had proven the voluntariness of appellee’s consent by a preponderance of the evidence but not by the requisite clear and convincing evidence. The Houston Court of Appeals affirmed, rejecting the State’s argument that the Texas Constitution, like the United States Constitution, demands only that the State prove voluntariness of consent by a preponderance of the evidence. State v. Ibarra, 918 S.W.2d 15 (Tex.App.—Houston [14th Dist.] 1995)(do not publish). We granted discretionary review to decide whether the court of appeals erred in its determination.

The State does not dispute that, under our constitution, we have repeatedly held it to a standard of clear and convincing evidence when attempting to show the voluntariness of a consent to search. See Dubose v. State, 915 S.W.2d 493, 496 (Tex.Crim.App.1996); Juarez v. State, 758 S.W.2d at 775; Paprskar, 484 S.W.2d at 737. Rather, the State advocates that we reevaluate our position under the Texas Constitution in light of the fact that the Supreme Court requires only that voluntariness be shown by a preponderance of the evidence under the United States Constitution. United States v. Matlock, 415 U.S. 164, 176-78, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974). In asking us to reconcile our law with federal law, the State employs the five part test set out in Autran v. State, 887 S.W.2d 31, 36 (Tex.Crim.App.1994), which considers not only the text of the state constitutional provision, but also the history, framer’s intent and possible policy considerations behind it and, finally, comparable jurisprudence from other states. Ap-pellee applies the same test in asking us to adhere to the higher standard of clear and convincing evidence.

At the outset, we emphasize that although “we need not construe the Texas Constitution differently [from the federal constitution], there is simply no getting around the fact that we construe it independently.” Bauder v. State, 921 S.W.2d 696, 700 (Tex.Crim.App.1996)(Clinton, J., concurring). Indeed, it seems odd to suggest that the measure of our state constitutional rights stems not from an independent assessment of our constitution but, rather, from the way in which our constitutional provisions are similar to or different from their federal counterparts. So, while Supreme Court analysis of federal constitutional provisions may enlighten our own constitutional endeavors, we are not bound by those interpretations.

Even so, the test set out in Autran may serve well as a mechanism by which to independently construe our own constitution. Much like the factors set out in Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991), that apply when a statute’s text is ambiguous or leads to absurd results, the Autran factors may help illuminate the intended scope of constitutional provisions. But in this case, neither party makes especially compelling arguments regarding the text of art. I, § 9, the framer’s intent as to that provision or comparable jurisprudence from other states. See George E. Dix & Robert O. dawson, 40 Texas Criminal Practioe and Procedure § 5.03. As for the history and application of art. I, § 9 in this context, the State concedes that a ruling today that would allow the State to constitutionally show voluntariness of consent by a preponderance of the evidence would undermine years of well-established precedent that has demanded proof by clear and convincing evidence.

It is against this backdrop that we discern which party’s policy arguments more fully support the art. I, § 9 mandate against unreasonable searches and seizures. The State asserts that a preponderance of the evidence standard sufficiently deters police officers from violating the constitution, but, at the same time, accommodates the fact that police officers must often make accelerated decisions regarding searches and seizures. Appellee avers that the State’s suggested departure from the current standard of clear and convincing evidence will necessarily allow “more evidence of the purported consent than would be admitted were the prosecution required to meet a higher standard”, thereby diminishing art. I, § 9 protections. The Supreme Court encountered some of these same arguments in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), and decided that the voluntariness of a confession need only be proven by a preponderance of the evidence. In so holding, the Court opined that “no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence.” Id. at 488, 92 S.Ct. at 626. But the Court specifically added that:

[T]he States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.

Id. at 489, 92 S.Ct. at 627. And in Texas we have done just that.¹ It would be naive to assume that this Court, in so doing, did not know about the Supreme Court jurisprudence adopting a preponderance of the evidence standard. A more believable supposition would be that this Court, well aware that the Supreme Court has held that the burden of preponderance of the evidence does not offend the Fourth Amendment, nevertheless concluded that the same burden does not satisfy the demands of art. I, § 9. In our view, this disparity is justified by the fact that:

[A] lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard.

Lego v. Twomey, 404 U.S. at 493, 92 S.Ct. at 628 (1972)(Brennan, J., dissenting).

As appellee deftly points out, the admission of involuntary confessions into evidence may occur even more frequently in a border state like Texas were we to lower the standard of proof to a preponderance of the evidence. Indeed, free and voluntary consent may come with more difficulty to those who, like many Texas immigrants, have a limited understanding of the English language.

In the end, the State does not offer us, nor can we see, any compelling reason to depart from the standard of proof we have heretofore demanded that the State meet when showing the voluntariness of a consent to search. As we see it, holding that the State need merely prove the voluntariness of a consent by a preponderance of the evidence would not lend “concrete substance” to the mandate of art. I, § 9.² Id. at 493, 92 S.Ct. at 629. We thus hold, as we consistently have, that the State must prove the volun-tariness of a consent to search by clear and convincing evidence.

The judgment of the court of appeals is affirmed.

WOMACK, J., dissents.

1 . The Texas cases which adhere to the higher standard of clear and convincing evidence rely in part on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The State argues that this reliance is misplaced since Bumper actually never set the burden at clear and convincing evidence and, even if it did, later Supreme Court cases construing the federal constitution clearly set the standard at a preponderance of the evidence. Specifically, the State cites the seminal Texas case of Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App.1972), which holds that "the burden of proof by clear and convincing evidence is upon the prosecution to show that the consent was freely and voluntarily given." It seems unnecessary to decide whether Bumper actually set the standard at clear and convincing evidence because the Paprskar Court did not rely solely on that case. In fact, it also relied extensively on Texas case law, decided prior to Bumper, as well as a portion from Tex. Jur.2d, which states that:

Consent to search is not to be lightly inferred. It should be shown by clear and convincing evidence, and any consent must be voluntary and neither physically nor psychologically coereced ...

Paprskar, 484 S.W.2d at 737, citing 51 Tex. Jur.2d, Rev., Part 1, Searches and Seizures § 42, p. 722.

2 . Such a holding would also be an anomaly in our law. We have consistently treated our constitutional rights with the utmost sanctity. For example, both the right to the assistance of counsel and the right to a jury trial must be expressly waived—in writing and on the record. This, because they "are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in our system.” Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.1993). Surely, we ought to hold the right to be free from unreasonable searches and seizures in equal esteem.