HERNANDEZ v. STATE

DALLY, Judge, dissenting.

I agree with the majority interpretation of Art. 17.19, V.A.C.C.P., which requires that a warrant be issued by a judge or a magistrate. However, because I believe this interpretation represents a departure from the prior law upon which the arresting officer was entitled to rely, the fruits of the search made incident to that arrest should not be suppressed.

Analysis of this question must begin with an examination of the law which prevailed at the time of this arrest. At common law, the right of a surety to arrest and surrender the principal was viewed as practically absolute, with virtually no procedural limitations. See, e.g., Taylor v. Taintor, 83 U.S. (16 Wall.), 366, 371, 21 L.Ed. 287 (1873). Like the present law, past Texas statutes have allowed the surety to make his affidavit and secure an arrest warrant from a judge or a magistrate. Only one case has ever directly interpreted the force of this particular requirement. In Whitner v. State, 38 Tex.Crim. 146, 41 S.W. 595 (1897), the surety obtained a capias from the court clerk rather than a warrant from a magistrate. The Court held that the capias was nonetheless valid. Presiding Judge Hurt wrote that:

"If we adhere closely to the letter of the statutes as here expressed, we might

adopt the construction claimed by appellants, but we believe a more liberal construction should be adopted. The statutes in question are intended to facilitate the surrender of a principal by his bail, whenever they shall desire from any cause to surrender to him; and to only allow this in a felony case after indictment, when the court should be actually sitting, would afford but very little relief to the surety."

41 S.W. at 597.

I do not take issue with the limiting construction of this case by the majority. But the Whitner opinion itself allows the legitimate inference that, despite statutory language to the contrary, a court clerk may issue a capias if the judge is not available. Consequently, there has been no cause to suspect the lawfulness of such a procedure until now. The quoted language from Whitner has been approvingly used in construing other portions of the statute. See Wells v. State, 100 Tex.Crim. R., 271 S.W. 918 (1925). The broadest possible implication of Whitner was that a judge might be wholly unnecessary to the procedure of securing a warrant for surety surrender of a principal; and this implication was supported by McConathy v. State, 545 S.W.2d 166 (Tex.Cr.App. 1977), holding that a judge has no authority to refuse the issuance of a warrant under Art. 17.19 after the requisite affidavit has been made, making issuance of the warrant essentially a ministerial act rather than a judicial function.

Whitner, together with McConathy, provided authority for the view that, despite the language of the statute, participation of the judge in the Article 17.19 warrant procedure was not mandatory. The arresting officer in this case would have been legally justified under pre-existing precedents in believing that the arrest warrant was legally valid. Under these circumstances, no useful purpose is served in penalizing the police conduct through reversal of this conviction.

In Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the Supreme Court held that an arrest made in good faith reliance on a "stop and identify" ordinance, which at the time had not been declared unconstitutional, was valid regardless of a judicial determination of its unconstitutionality. In that case, the Court reasoned that the officer did have probable cause to believe the ordinance was violated and the officer was not required to anticipate that a court would later hold the ordinance unconstitutional.

This case is not analogous to a case where the arrest warrant is issued without probable cause since, in that case, the warrant is illegal from its inception. At the time the capias here was issued it was presumptively valid until this Court modified its view of the applicable law. The officer was not required to anticipate this change. Although the ordinance involved in DeFillippo was clearly unconstitutional, see id. (Brennan, J., dissenting), the Court did not require the police officer to predict that conclusion. In this case, given Whitner and McConathy, the present holding of this Court was not clearly preordained and was much less predictable than the fate of the ordinance in DeFillippo. Where this Court has given authority for one good faith interpretation of the statute, in a context unrelated to the accuracy or fairness of the trial, we should not punish the police and the public when we adopt a different position. I dissent.

Before the court en banc.

DOUGLAS, Judge, dissenting.

Hernandez challenged the admission into evidence of the heroin because of the lack of an arrest warrant. On original submission, the majority opinion reversed because the arresting officer's authority was based on a capias rather than an arrest warrant as required by Article 17.19, V.A.C.C.P.

In December, 1978, appellant was stopped by an Abilene police officer who believed that Hernandez was the subject of an outstanding misdemeanor arrest warrant. Eleven balloons of heroin were found in Hernandez' car as the result of a search incident to the arrest. Hernandez had been on bail awaiting disposition of a misdemeanor marihuana possession charge. The surety on the bail bond, on November 16, 1978, withdrew from the bond by means of an affidavit filed with the Taylor County Clerk. A capias ordering appellant's arrest was issued the same day.

On original submission, the panel opinion held that the requirements of Article 17.19, V.A.C.C.P., were mandatory. We disagree.

Article 17.19, supra, reads as follows:

"Any surety, desiring to surrender his principal, may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases."

This Court has held that Article 17.19, supra, is not to be construed literally but should be interpreted in such a manner as "to facilitate the surrender of a principal by his bail, whenever they shall desire from any cause to surrender him." Whitner v. State, 38 Tex.Crim. R., 41 S.W. 595 (1897); Wells v. State, 100 Tex.Crim. R., 271 S.W. 918 (1925).

In McConathy v. State, 545 S.W.2d 166 (Tex.Cr.App. 1977), we reaffirmed the liberal interpretation to be given to Article 17.19. There, we held that a trial judge must issue an arrest warrant when a surety presents an affidavit requesting withdrawal from the bond. The trial judge has no discretion in issuing the warrant; his only alternative, if he finds the affidavit to be without reasonable cause, is to require the surety to return all bonding fees.

The end result, with a bond withdrawal, is that there is virtually no distinction between a capias and an arrest warrant. Though each is issued by following a different procedure, see and compare, Article 17.19, supra; Article 23.03, V.A.C.C.P., the issuance of either involves no exercise of discretion on the part of the issuing authority. There is no doubt that had the surety in the present case presented his withdrawal affidavit to a judge, an arrest warrant would have been issued.

The issue then becomes the effect of this error upon the admission into evidence of the heroin. Ever since the decision of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which applied the exclusionary rule to the states through the Fourteenth Amendment, the Supreme Court has consistently grappled with the scope of that rule. In Mapp, the Court stated that the rule's purpose was of constitutional origin and existed in order to protect rights guaranteed by the Fourth and Fifth Amendments to the United States Constitution, "to deter to compel respect for the constitutional guaranty in the only effective available way by removing the incentive to disregard it." 367 U.S. at 656, 81 S.Ct. at 1692.

In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court made it clear that Mapp "implied no total obliteration of state laws relating to arrests and searches in favor of federal law." Further, Mapp was not a formula for determining the reasonableness of a search; the exclusionary rule was to be applied in those cases where the constitutional violation was unreasonable. Reasonableness is to be determined in light of the "`fundamental criteria' laid down by the Fourth Amendment . . . ." 374 U.S. at 33, 83 S.Ct. at 1630. Ker's conviction was upheld.

In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) the Court declined to retroactively apply the holding of Almeida-Sanchez v. United States, 413 U.S. 266, 307, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In doing so, the Court considered the purposes of the exclusionary rule as the rule affected the retroactivity concept. The Court held that, where a police officer is acting in good faith that his conduct is in accordance with the law, the twin purposes of the exclusionary rule the imperative of judicial integrity and the deterrent effect on unconstitutional police conduct would not be served. "`The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.' " 422 U.S. at 539, 95 S.Ct. at 2318, quoting Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Court described the exclusionary rule as "'simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers.'" 428 U.S. at 479, 96 S.Ct. at 3045, quoting Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). The rule's essential purpose is to safeguard Fourth Amendment rights and its application must be limited to those areas "'where its remedial objectives are thought most efficaciously served.'" 428 U.S. at 487, 96 S.Ct. at 3049, quoting United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

In United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979), the Court refused to apply the exclusionary rule where a wiretap recording violated only an Internal Revenue Service regulation because the violation was neither deliberate nor prejudicial and did not affect any of the defendant's constitutional or statutory rights. The Court found that the wiretap "reflected a reasonable, good-faith attempt to comply in a situation in which no one questions that monitoring was appropriate and certainly would have received Justice Department Authorization . . . .", had the IRS complied with the necessary procedures.

We should hold today that the Caceres rationale applies in the instant case. There is no question of the arresting officer's good faith; he testified that he arrested Hernandez because he thought there was an outstanding arrest warrant. There is also no question that a warrant would have been issued had the withdrawn affidavit been submitted to a judge or magistrate. None of appellant's constitutional rights were violated by the issuance of a capias rather than a warrant. The long-standing and oft stated purposes of the exclusionary rule will simply not be served by applying it to the facts of this case.

There is no reversible error; we should grant the State's motion for rehearing and affirm the judgment.

TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., join in this opinion.