A strange thing has developed in the area of criminal law recently.

Take this example: A man is driving on Interstate 30 between Dallas and Fort Worth and is stopped for speeding. A computer check reveals that he has an outstanding misdemeanor warrant for his arrest, and the officer duly takes him into custody. Since it would not be wise to leave the vehicle sitting on the shoulder of the road, a tow truck is called so that the auto can be removed to the impound yard. As is a custom for most police departments, an "inventory search" is performed on the vehicle so that an appropriate list of its contents can be made. (One of the main purposes of an inventory search is to protect the police from unscrupulous claims that they lost or stole property out of a vehicle while it was impounded). This is not unusual. Every police department has such a policy.

During the inventory search the policeman comes across a "closed container" say, for example, a locked bank bag. Since the bag will be placed in the property room, an accurate description of its contents is desired by the police. Consequently, the officer picks the lock of the bag but instead of finding money he discovers cocaine.

Question: Is the cocaine admissible, or was the searching of the bank bag an illegal search and seizure under the Texas Constitution. (The search is clearly legal under the U.S. Constitution, but the Texas Constitution can be interpreted to provide a defendant greater rights than its U.S. counterpart).

Believe it or not, the answer depends on where the search occurred. If the driver stopped in Dallas County the answer is "yes" while the answer is "no" if he had not yet left Tarrant County.

How did this come to be? Blame the courts. Our state is divided up into fourteen appellate districts, each of which has one appellate court sitting therein. Each appellate district has jurisdiction over a number of designated counties. Above all of those courts is the Texas Court of Criminal Appeals which has the right to interpret the law that is binding on the fourteen lower courts and, in turn, every trial court, prosecutor, police officer, and citizen.

Sometimes, however, a legal question arises which is such a "close call" that the fourteen appellate courts can disagree on how it should be decided. Unless the Court of Criminal Appeals steps in and resolves the conflict, different appellate courts will issue different opinions interpreting the law. Because of this, what is binding on one county of one appellate district is not binding on a different county in a separate appellate district.

The "inventory search" law is a perfect example. Tarrant County (along with Wise, Jack Counties and others) is in the Second Appellate district with the appeals court sitting in Fort Worth. That court has held that closed containers cannot be opened during an inventory search. See State v. Lawson, 886 S.W.2d 554 (Tex.App. - Fort Worth 1994, pet ref’d). The appellate district based in Dallas, however, has reached the opposite conclusion in Trujillo v. State, 952 S.W.2d 879 (Tex.App. - Dallas 1997). As it probably should, the Dallas court criticized the Court of Criminal Appeals by noting that it had failed to provide a definitive answer despite conflicting decisions.

Because counties like Collin, Rockwall and Dallas belong to the Dallas Appellate District, inventory searches of closed containers are currently legal in those locales. However, officers working in Wise, Denton, Jack, Parker, Tarrant and other counties that are assigned to the Fort Worth Court of Appeals do not have the benefit of that right.

This conflict, one would think, will ultimately be resolved by the Texas Court of Criminal Appeals. But until that happens, the current state of the law can be interpreted to mean either (1) Wise and Jack County residents have greater protection against unreasonable search and seizure than those living in Dallas County, or (2) drug trafficking is "safer" here in the 271st Judicial District.

I guess it all depends on your perspective.

Barry Green is the District Attorney for the 271st Judicial District.