IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0605-14
THE STATE OF TEXAS
v.
CUONG PHU LE, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
A LCALA, J., filed a dissenting opinion.
DISSENTING OPINION
Because there is a gap of about twelve days between almost all of the activities
described in the probable-cause affidavit and the issuance of the search warrant and because
the warrant fails to show probable cause for an ongoing indoor marijuana-grow operation,
I would uphold the judgments of both the trial court and the court of appeals that the search
warrant was issued without probable cause based on stale information. Although I recognize
that what would otherwise be stale information may support a warrant if it shows probable
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cause for an ongoing criminal activity, I conclude that the facts in the affidavit, when viewed
in their totality, fail to show that type of probable cause. More particularly, unlike the
majority opinion that largely paraphrases the affidavit to characterize the facts as being more
favorable to the State than they are, I specifically quote the pertinent portions of the affidavit
and consider the precise facts that were presented to the magistrate. Furthermore, although
I note that this search may have been upheld had the State argued that the good-faith
exception applicable to search warrants should apply, the State forfeited that argument by
failing to present it to the trial court. I agree with both the trial court and the court of appeals
that the evidence should be suppressed because the search warrant is unsupported by
probable cause. I, therefore, respectfully dissent from the Court’s judgment reversing the
judgment of the court of appeals.
I. There are Six Significant Problems with the Search Warrant
There are six significant problems that occurred here: (1) dog-sniff evidence was used
as probable cause for this warrant, but the Supreme Court has now disallowed that type of
evidence in the manner that it was obtained in this case; (2) the officer’s expert opinion about
the citizen’s tip is unsupported by the facts; (3) the officer’s general statements about high
electricity usage being indicative of a marijuana growing operation are immaterial to this
case; (4) the officer’s general statements about the significance of supplemental air
conditioning are immaterial to this case; (5) the vast majority of the information used to
sustain the warrant was stale information obtained about two weeks before the search warrant
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was obtained; and (6) there is inadequate information from which to infer that this was an
ongoing marijuana growing operation. Taking these six problems with the search warrant
into consideration, the totality of the facts fail to establish probable cause for this search.
First, as this Court’s majority opinion accurately observes, the dog-sniff evidence
used as part of the probable cause to support this warrant may no longer be considered under
Florida v. Jardines, 133 S. Ct. 1409, 1417-18 (2013). The judge who signed the search
warrant did so under the belief that the dog had alerted to the smell of narcotics at the
residence shortly before the warrant was issued, but, because the dog-sniff evidence was
obtained through an unlawful warrantless search, this Court may not consider that evidence
in determining whether there was probable cause to support the search warrant. See id.
Without the dog-sniff evidence, the only fact that occurred shortly before the warrant was
obtained was the smell of raw marijuana on appellee and in his car after he visited the house,
and, as I explain further below, that fact fails to establish probable cause that officers would
find raw marijuana inside the house.
Second, the officer’s expert opinion about the citizen’s tip is unsupported by the facts,
and, therefore, that opinion must be disregarded. The concerned citizen indicated that he or
she knew the owner of the residence, who rented it to an unknown person, and that ever since
the property was rented, the citizen had seen “suspicious activity” in the form of young Asian
males visiting the residence in the evening for short periods without turning on the lights and
without residing at the location. The warrant states,
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The current occupants, who are described as young Asian males[,] started
arriving at the residence several months ago. The [concerned citizen] never
observed any type of furniture being moved into the residence. The
[concerned citizen] reported that the Asian males arrive at the residence during
the early evening hours. These individuals remain at the residence for a short
period of time before departing. These individuals do not appear to reside at
the residence and do not engage in normal house hold [sic] activities, i.e. yard
work, washing cars, etc. The [concerned citizen] described one of the vehicles
being driven by the Asian males as a black Toyota SUV . . . . The [concerned
citizen] further stated that no lights are seen inside the residence, even when
the Asian males arrive during night time hours.
Importantly, the concerned citizen’s tip never mentions marijuana or any controlled
substance. Although the activities described by the concerned citizen may be peculiar and
would suggest that officers should investigate, that information, standing alone, cannot
properly form the basis for the officer’s expert opinion linking the citizen’s observations to
an indoor marijuana-grow operation. The warrant states, “Sergeant Clark knows through
training and experience in conducting investigations and seizure of indoor marijuana grow
operations that the activities described by the [concerned citizen] are characteristic [of] and
consistent with the operation of an indoor marijuana grow operation.” The majority opinion
seems to interpret this statement from Sergeant Clark as if he were basing his opinion on a
consideration of all the officers’ observations during their investigation of the case, but
instead he was referring only to the “activities described by the [concerned citizen],” and
nothing about those activities was particularly suggestive of an indoor marijuana-grow
operation. The officer’s opinion that the concerned citizen’s tip was consistent with the
characteristics of an indoor marijuana-grow operation is speculative because it is based on
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the mere facts that young Asian males regularly visit a house during the evening hours
without turning on overhead lights and without moving in furniture and that whoever resides
at the house does not garden or wash a car. Although the citizen’s tip may have suggested
that something was amiss, it is a stretch to suggest that the tip reasonably supported the
officer’s suspicion that the residence contained an indoor marijuana-grow operation, or that
the tip supported probable cause to suggest that marijuana might be found in the house when
the search warrant was issued about one month later.
Third, the officer’s general observation that high electricity usage is indicative of an
indoor marijuana-grow operation is immaterial to our analysis of this case because there was
no evidence that this residence actually had high electricity usage. The warrant states,
Your affiant and Sergeant Clark know, through training and experience in
conducting investigations/seizures of indoor marijuana grow operations that:
the operations consume large quantities of electrical power. The large
electrical power consumption is required to power high intensity metal halide
grow light systems, air purification systems, supplemental air conditioning
systems, water pumping and filtration systems.
Despite mentioning the importance of evidence showing high electricity usage, the affidavit
then fails to state that there was any irregular electricity usage at the residence. An appellate
court’s review of the adequacy of a probable-cause affidavit is limited to the facts and
circumstances contained within the four corners of the document. See Bonds v. State, 403
S.W.3d 867, 873 (Tex. Crim. App. 2013). At most, the affidavit states that the utilities were
registered to appellee, but it says nothing more about the quantity of electricity used at the
residence. Because the warrant indicates that irregular electrical usage is an important piece
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of evidence to show an indoor marijuana-grow operation but then fails to show that any
irregular electrical usage actually occurred at this residence, that fact weighs heavily against
a finding that there was probable cause to show the existence of an indoor marijuana-grow
operation. See id.
Fourth, the officer’s general statements indicating “that hydroponic marijuana grow
operators install supplemental air conditioning units in an effort to dissipate” the “excessive
heat” from “high intensity metal halide grow lamps” are similarly immaterial to this case.
Although this portion of the warrant sets up the expectation that the evidence will show the
existence of supplemental air conditioning units, the evidence instead merely shows that, on
one occasion, the officer observed the central air conditioner continuously running when it
was cold outside. The warrant states, “While standing at the sidewalk in front of the
residence, Clark could plainly hear the central air conditioning unit, which is located at the
north end of the residence, running continuously.” The mere fact that, on one occasion, a
central air conditioning unit was left continuously running on a cold day does not suggest the
existence of a marijuana-grow operation. And nothing in the warrant suggests that the house
had supplemental air conditioning units, which, according to the affidavit, would be expected
as part of a marijuana-grow operation. Despite the actual language in the affidavit that
focuses on the connection between “supplemental air conditioning units” and indoor
marijuana-grow operations, the majority opinion recharacterizes the affidavit by deciding that
a central air conditioner that runs on a single cold day is information that equates with
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supplemental air conditioning units that are installed for indoor marijuana-grow operations
that must run daily to keep the high intensity halide grow lamps from damaging the plants
due to their excessive heat. Courts should not recharacterize the facts that were before the
magistrate and must consider only those facts contained within the four corners of the
affidavit. See id. Because the officer’s general statements discussing the importance of
supplemental air conditioning units is not linked to the facts in this case, in which there were
no supplemental air conditioning units nor anything other than a central air conditioner left
running on a single cold day, that evidence must be discounted as immaterial to this case.
Fifth, the vast majority of the information used to support the warrant was stale and,
absent probable cause to show an ongoing criminal activity, that information fails to show
probable cause that marijuana would be found at the residence as of the date of the warrant’s
issuance. The search warrant was prepared and signed on November 27, 2012, based on
activities that can be divided into three general periods: (1) the activities occurring between
November 1 and November 13, 2012, as delineated in the chart below, (2) the activities
occurring at some unknown time in November, and (3) the activities occurring on November
27, 2012.
The following chart shows that, had the search been conducted around mid-
November, the officers likely would have had probable cause to search for marijuana in the
house, but because the search was not conducted until late November, the information had
become stale.
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Sometime between November 6 and 8, 2012 November 13, 2012
November 1 and 5, 2012
Credible concerned citizen Officer observes mini Sergeant Clark walked to
gives tip. blinds tightly drawn on the front door and smelled
every window in the raw marijuana.
residence.
Citizen reports that no Utilities at residence are The central air
furniture was moved in, no registered in appellee’s conditioning unit was
one lives at the residence, name, but his driver’s running continuously.
no lights are ever turned on license and concealed gun
in the residence, and no license show a different
normal household activities address.
occur at the residence.
Young Asian males arrive The same black Toyota The ambient temperature
in a black Toyota SUV in SUV is seen at a different outside the residence was
the early evening and leave address and is registered to 38 degrees.
shortly thereafter. someone other than
appellee.
Aside from these events that occurred between November 1 and 13, the affidavit
additionally described events occurring sometime in November, and an event that occurred
on November 27. These additional events, even when examined in conjunction with those
described in the chart above, were inadequate to establish probable cause for the search that
occurred in late November.
Without stating any precise dates, the probable-cause affidavit indicates that Sergeant
Clark conducted “night time surveillance at the suspected place for several nights. He
observed that no lights were visible inside the residence other than at the front door, and a
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single rear first floor light.” Based on the observation that there was dim lighting in the
house for several nights, the affidavit suggested that this fact, combined with the
observations made by the concerned citizen, was evidence signifying a marijuana-grow
house. The affidavit states:
The officers know through training and experience in investigat[ing] marijuana
grow operations that the operators often do not reside in the grow house. The
officers also know through these investigations that the operators must tend to
the live plants on a daily basis.
Aside from the reasonable inference that Sergeant Clark did not observe anyone residing at
the house, the remainder of his statement is unconnected to the behavior that he personally
observed. Nothing in the sergeant’s affidavit suggests that he saw anyone coming and going
on a daily basis or that he ever observed the driver of the Toyota truck going to the location
at any point between the time when the concerned citizen contacted the police and
approximately a month later when appellee was arrested after leaving the location. In the
absence of anything to show that, during the month of November, after the citizen contacted
the police, the officers ever observed daily visits to the location, there is an inadequate
foundation for the sergeant’s opinion that there was an ongoing marijuana-grow operation.
See id. Again, the majority opinion focuses on the affidavit’s statements that the lack of
lighting suggests that no one lived at the house, but then, in seeming contradiction, the
majority opinion does not consider that nothing in the affidavit shows that anyone was seen
visiting the house at all, much less on a daily basis, for the entire month from the time of the
citizen’s tip to the time of the stop of appellee’s car, and that, according to the affidavit, daily
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visits would be necessary to tend to marijuana plants in an indoor marijuana-grow operation.
In addition, the search warrant does not describe the dates on which the surveillance
occurred. Presumably this surveillance occurred between November 13 and November 27,
2012, because the paragraphs in the probable-cause affidavit appear to be discussing events
in chronological order, but there is nothing in the warrant to indicate whether the surveillance
occurred on November 13, 14, and 15, or on November 24, 25, and 26, or some other three-
day interval.
Although I conclude that it is proper to infer that the events occurred at some point
between November 13 and November 27 based on a reasonable assessment that the events
described in the affidavit appear in chronological order, it would not be reasonable to further
infer that the events occurred at the later point in time because there is nothing from which
that inference could be reasonably made. Except for the traffic stop of appellee, therefore,
all of the activities described in the probable-cause affidavit can reasonably be determined
to have occurred during the first weeks of November 2012, which was about one to two
weeks before the search warrant was signed on November 27.
Only one event that this Court properly can consider occurred shortly before the
search warrant was issued, and that event fails to establish probable cause for the search of
the house. On November 27, the affiant observed the same black Toyota SUV at the
suspected residence, and it stayed there for several hours. After it left the residence, it was
stopped for traffic violations, and the officer smelled “a strong odor that he knows through
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training and experience to be that of raw marijuana coming from the vehicle and on the
person” of the driver, who was appellee. But the presence of the raw marijuana smell in the
car alone creates no “fair probability” that marijuana would be found inside the residence,
and, therefore, the smell cannot show probable cause to support the search warrant. See
Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (“Probable cause exists when,
under the totality of the circumstances, there is a ‘fair probability’ that contraband or
evidence of a crime will be found at the specified location.”). Because there was no probable
cause to show an ongoing criminal activity, as I explain in the next section, and because the
dog-sniff evidence that the judge who signed the warrant considered must be excluded from
our consideration, as I have explained above, the only timely information supporting the
issuance of the search warrant was the smell of raw marijuana observed during the traffic
stop, and that information was inadequate to show probable cause that there would be
marijuana in the house.
Sixth, the search warrant lacked probable cause to show the existence of an ongoing
criminal activity. In Jones v. State, this Court “suggested that time is a less important
consideration when an affidavit recites observations that are consistent with ongoing drug
activity at a defendant’s residence.” Jones v. State, 364 S.W.3d 854, 860 (Tex. Crim. App.
2012). This Court noted with approval that “federal circuits have held that the nature of the
activity must be considered, and that, in appropriate circumstances, years could pass without
information becoming stale.” Id. at 861 (citations omitted). In short, evidence of ongoing
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criminal activity will generally defeat a claim of staleness. Id. But in the absence of an
ongoing criminal activity, information related to a drug offense will soon become stale. Id.
Examining the information in the search warrant in its totality, it fails to establish
probable cause as to the existence of an ongoing indoor marijuana-grow operation. The facts
show that no one was living in a residence for a period of anywhere from one to three
months; young Asian males would reportedly visit the residence in the evenings and stay a
short while, but the affidavit includes no information about whether they returned at all
between the time of the citizen’s tip and the stop of appellee; no light was emitted from the
residence; on one day of one month, the blinds in the house were tightly shut, but the
affidavit includes no information as to whether the blinds were shut at any other point in time
during the month of the officer’s surveillance; on one occasion, an officer smelled raw
marijuana outside of the front door of the house; appellee did not live there but paid the
utilities there; and one to two weeks after those events, on one occasion after he had been
there for several hours, appellee and his car smelled like raw marijuana. According to the
affidavit, evidence of high electricity usage and supplemental air conditioning units would
have been indicative of an ongoing marijuana-grow operation, but no evidence of either of
these circumstances was included in the affidavit. See Bonds, 403 S.W.3d at 873.
Furthermore, according to the affidavit, daily visits to an indoor marijuana-grow house are
necessary to tend to the plants when someone does not live at the residence, but the affidavit
then fails to include any information to show that there were any visits to this location during
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the month between the citizen’s tip and appellee’s arrest.
Assuming that all of these facts occurred shortly before the search warrant was signed,
they arguably provide probable cause to believe that there might be marijuana in the house.
The totality of these facts, however, is inadequate here because there was about a two-week
gap of time between almost all of these facts and the issuance of the warrant. In short, all of
the facts were stale, except for the smell of raw marijuana on appellee and in his car, and that
smell was inadequate to establish probable cause for the search of the house.
To overcome the staleness of the facts presented in the probable-cause affidavit, the
affidavit would have had to show probable cause of an ongoing criminal activity, but it failed
in this respect. I note that, in assessing whether information that might otherwise be stale can
support a probable-cause determination in light of the existence of an ongoing and
continuous drug enterprise, courts have considered factors such as confirmation of ongoing
drug activity from confidential informants; the defendant’s prior drug-trafficking activities;
and direct observations by law-enforcement agents indicating drug-trafficking activity.1 By
1
See, e.g., United States v. Rojas-Alvarez, 451 F.3d 320, 332 (5th Cir. 2006) (information in
probable-cause affidavit was not stale due to existence of ongoing drug enterprise; affidavit clearly
showed that defendant’s family had been involved in drug dealing for several years and that
confidential informant had recently purchased drugs from defendant’s family members in controlled
buys; additional information included rental-car histories and pattern of border crossings); United
States v. Myers, 106 F.3d 936, 939 (10th Cir. 1997) (information was adequate to establish probable
cause for ongoing and continuous marijuana-grow operation, and thus was not stale, when
confidential informant told police that defendant was growing marijuana; a check of electrical
records indicated high electrical and water usage at defendant’s residence; and defendant had prior
drug conviction); United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997) (information
in probable-cause affidavit described “long-standing, ongoing pattern of criminal activity,” and thus
was not stale, when affidavit included information from co-conspirator describing manner in which
Le Dissent - 14
contrast, here, there was little more than the smell of raw marijuana at the front door of the
house on a single day to suggest that there was any drug activity at all at that location, let
alone a “long-standing, ongoing pattern of criminal activity.” United States v. Rojas-Alvarez,
451 F.3d 320, 332 (5th Cir. 2006) (citations omitted). Omitting the officer’s general
observations about marijuana-grow operations that were unconnected to the facts of this case
and the impermissible dog-sniff evidence, the remainder of the affidavit contains isolated
facts that, even taken together, do not amount to probable cause to believe that there was an
ongoing indoor marijuana-grow operation.
II. Good-Faith Exception for Search Warrants in Texas
In light of the numerous problems delineated above, the State should have asserted
the good-faith exception to the exclusionary rule applicable to search warrants in an attempt
to salvage this search. Because it failed to assert that legal theory as a basis for upholding
this search in the trial court, the State cannot obtain the benefit of that law in this Court.
drugs were transported across country in hidden compartments, as well as “contemporary
observations of government agents that tended to corroborate” co-conspirator’s statements; because
reasonable officer could have believed warrant was based on probable cause, good-faith exception
applied); United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991) (information in probable-cause
affidavit was adequate to establish ongoing marijuana-grow operation when it included statements
from informant indicating that defendant had “openly discussed” plans to manufacture marijuana at
his home, and when it included information regarding defendant’s prior grow operation at another
residence); United States v. Minis, 666 F.2d 134, 137, 140 (5th Cir. 1982) (information was adequate
to establish probable cause for ongoing marijuana-grow operation, and thus was not stale, when
police had intercepted incriminating phone calls in which defendants referred to volume and size of
marijuana plants and to the present and past years’ crops; these telephone conversations “clearly
indicated that the growing of the marijuana was a continuing process”).
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Texas Code of Criminal Procedure Article 38.23(b) permits the admission of evidence
obtained by an officer in violation of any provisions of the Constitution or laws of the State
of Texas or the United States when “the evidence was obtained by a law enforcement officer
acting in objective good faith reliance upon a warrant issued by a neutral magistrate based
on probable cause.” See T EX. C ODE C RIM. P ROC. art. 38.23(b); McClintock v. State, 444
S.W.3d 15, 20-21 (Tex. Crim. App. 2014) (holding that, excluding the unlawfully obtained
dog-sniff evidence, the remaining portion of the search warrant did not establish probable
cause, and, therefore, appellate court should consider whether the search should be upheld
under the good-faith exception applicable to search warrants). Had the State argued to the
trial court that the search warrant was obtained in good faith reliance on the dog-sniff
evidence that was permissibly obtained before the Jardines decision, I might have voted to
uphold the search conducted pursuant to the invalid search warrant under that legal theory.
See Jardines, 133 S. Ct. at 1417-18.
III. Conclusion
All of the events described in the affidavit supporting the search warrant occurred
about two weeks before the warrant was issued, and the sole event, the smell of raw
marijuana on appellee and in his car, that occurred shortly before the issuance of the warrant
fails to establish probable cause for the search of the house. Furthermore, the totality of the
affidavit fails to establish probable cause of an ongoing criminal activity that would permit
a court to consider the stale information. Because I conclude that the search warrant was
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unsupported by probable cause, I would uphold the judgments of both the trial court and the
court of appeals, and, therefore, I respectfully dissent.
Filed: April 29, 2015
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