NO. 861-00








Price, J., delivered the opinion of the Court, in which Meyers, Womack, Johnson, and Holcomb, J.J., join. Cochran, J., joins with a note. Keller, P.J., filed a dissenting opinion, in which Keasler and Hervey, J.J., join.

In this case, we granted review to determine whether the court of appeals erred in holding that the admission of evidence obtained in violation of the Fourth Amendment is non-constitutional error. The Supreme Court has concluded that the Fourth Amendment requires exclusion of evidence obtained in violation thereof and has held that requirement applicable to the states by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Therefore, we hold that the proper harm analysis in this case is the constitutional one of Rule of Appellate Procedure 44.2(a).

The appellant was indicted for possession with intent to deliver cocaine. The jury convicted the appellant. Tex. Health & Safety Code 481.112. During the punishment phase of the trial, the appellant objected to the admission of evidence seized during an unlawful traffic stop. The trial court overruled the appellant's objection.

On direct appeal, the appellant complained that the trial court erroneously admitted the evidence. The court of appeals held that the evidence should have been excluded because the traffic stop that led to the evidence's seizure violated the Fourth Amendment to the United States Constitution. Hernandez v. State, 13 S.W.3d 492, 506-07 (Tex. App.--Amarillo 2000). The court of appeals concluded that the error was non-constitutional error under Rule of Appellate Procedure 44.2 (1) because it "did not directly offend the United States Constitution, was not required by the Constitution itself, and therefore was not a federal constitutional error for purposes of 44.2(a)." Id. at 508. We granted review to decide which harm analysis should apply to the erroneous admission of evidence obtained in violation of the Fourth Amendment.

Bumper v. North Carolina, 391 U.S. 543 (1968), guides us to the conclusion that the constitutional standard must apply. In that case, the Supreme Court found that the petitioner's Fourth Amendment rights were violated in the state criminal trial. Id. at 550. Having found a violation, and after conducting a harmless error analysis under Chapman v. California, 386 U.S. 18 (1967), the Court concluded that the error was not harmless beyond a reasonable doubt. Bumper, 391 U.S. at 550. Justices Black and White dissented to the majority's conclusion that the search was illegal, but both agreed that the proper harm analysis would be the constitutional standard in Chapman. Id. at 560, 562 (Black, J., dissenting) (White, J., dissenting).

Since the Supreme Court's application of the constitutional error standard of harm in Bumper, the Court has held in certain contexts that the Fourth Amendment exclusionary rule does not apply in all proceedings or against all persons. See, e.g., Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 369 (1998) (declining to extend the Fourth Amendment exclusionary rule to parole revocation proceedings); Stone v. Powell, 429 U.S. 874, 481-82 (1976) (holding that the Constitution does not require state prisoners be granted federal habeas relief on the ground that evidence obtained in violation of the Fourth Amendment was admitted at trial); United States v. Calandra, 414 U.S. 338, 349 (1974) (declining to extend the Fourth Amendment exclusionary rule to grand jury proceedings). The Amarillo Court of Appeals relied on these cases for its conclusion that the error in this case must be non-constitutional. But the cases neither explicitly nor implicitly overrule the Court's unanimous conclusion in Bumper that the Chapman standard applies to a trial court's erroneous failure to exclude evidence obtained in violation of the Fourth Amendment.

Moreover, the Supreme Court recently reversed a Fourth Circuit decision in which that court of appeals upheld a federal law purporting to overrule Miranda v. Arizona, 384 U.S. 436 (1966). Dickerson v. United States, 530 U.S. 428 (2000). The Supreme Court noted the court of appeals relied on "the fact that we have created several exceptions to Miranda's warnings requirement and that we have repeatedly referred to Miranda warnings as 'prophylactic' and 'not themselves rights protected by the Constitution.'" Id. at 437-38 (citations omitted). The Supreme Court reversed that court of appeals though it conceded "there is language in some of our opinions that supports the view taken by that court." Id. at 438.

The Supreme Court resolved the case, in part, on the basis that it does not possess the authority to supervise state courts. Id. (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Constitutional rights and restrictions on government do not contain express exclusionary rules, but the exclusionary rules are constitutionally based because they derive from the liberties and restrictions contained in the amendments. In other words, the Supreme Court can enforce Miranda's exclusionary rule because the rule is constitutionally based. Specifically the Court explained "[w]ith respect to proceedings in state courts, our 'authority is limited to enforcing the commands of the United States Constitution.'" Id. (quoting Mu'Min v. Virginia, 500 U.S. 415, 422 (1991)).

The same analysis applies in the instant case. Without a constitutional basis, the Supreme Court would not have authority to make the Fourth Amendment exclusionary rule applicable to the states. As a result, the harm analysis for the erroneous admission of evidence obtained in violation of the Fourth Amendment must be Rule 44.2(a)'s constitutional standard.

We reverse the judgment of the Court of Appeals and remand for a harm analysis pursuant to Rule of Appellate Procedure 44.2(a).

Delivered: November 14, 2001.


Cochran, J., joins the majority opinion and adds the following note: I agree that the Chapman harmless error standard applies to violations of the Fourth Amendment. I question, however, whether the federal exclusionary rule necessarily applies at the punishment stage. See, e.g., United States v. Ryan, 236 F.3d 1268 (10th Cir. 2001).

1. Rule 44.2 reads:

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.