Opinion issued November 5, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00572-CR
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BRADLEY RAY MCCLINTOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd Criminal District Court
Harris County, Texas
Trial Court Case No. 1280089
DISSENTING OPINION
I respectfully dissent. In this case, the police obtained a warrant to search
appellant’s upstairs residence for marijuana based on Houston Police Department
Officer R. Arthur’s affidavit that he smelled marijuana at that “location” and that
the trained narcotics-sniffing dog Sita likewise detected the odor of marijuana from
the top of a public stairway outside the door of appellant’s second-floor residence.
The Court of Criminal Appeals held that the warrantless dog sniff search on
the curtilage of appellant’s residence was illegal under Florida v. Jardines, decided
while appellant’s case was on appeal. McClintock v. State, 444 S.W.3d 15, 19
(Tex. Crim. App. 2014). The court then found that the affidavit on which the
search warrant was obtained, based in part on the warrantless dog-sniff search, was
“sufficiently ambiguous” that it could not be said that, without the narcotics dog’s
alert, the evidence the magistrate had before him to rely on in issuing the warrant,
“even taken together with the other independently acquired information stated in
the warrant affidavit , . . . clearly established probable cause.” Id. at 19–20.
However, on petition for discretionary review, the State brought the court’s
attention to Davis v. United States, 131 S. Ct. 2419 (2011). The Supreme Court
held in Davis that a new Supreme Court ruling that a search is illegal under the
Fourth Amendment does not apply retroactively to render inadmissible evidence
obtained from a search that occurred prior to the ruling that was conducted by the
police in good faith in accordance with binding precedent at the time of the search.
See 131 S. Ct. at 2425–26, 2429, 2434 (holding that exclusionary rule did not bar
admission of weapon discovered during search of passenger compartment of
vehicle incident to arrest of passengers, even though Supreme Court determined in
2
intervening case that such searches violate Fourth Amendment, because officer
reasonably relied on binding precedent at time of search that permitted officer to
search passenger compartment). The Court of Criminal Appeals remanded to this
Court the question of whether, in light of Davis, evidence seized pursuant to a
search warrant that was obtained, in part, as a result of a search subsequently
declared to be in violation of the Fourth Amendment is admissible in Texas state
courts under the good-faith exception to the exclusionary rule.
The majority’s answer to this question—that the evidence is inadmissible—
is, in my view, incorrect on the law. I would hold, in accordance with Davis, that
the good-faith exception to the exclusionary rule applies in this case. Thus, the
evidence obtained by police pursuant to the search warrant issued on the basis of
probable cause supplied in part by the dog-sniff search then deemed legal under
binding authority was not subject to exclusion. I would therefore affirm the
judgment of the trial court.
A. The Exclusionary Rule and the Good-Faith Exception
The majority concludes that Texas’s exclusionary rule and its good-faith
exception are statutory, not judicially created like the federal rule, and that the
Texas exclusionary rule is broader than the federal rule. It holds that, therefore,
Davis, a federal Supreme Court case, does not apply in Texas state court, and that
it need not consider Davis in determining whether the evidence seized in this case
3
was admissible. I disagree. I believe the majority’s holding is based on a
misinterpretation of both the Texas exclusionary rule and its good-faith exception
and the federal exclusionary rule and good-faith exception, as well as the
relationship between them.
The federal exclusionary rule, parsed by the United States Supreme Court in
Davis, is a “prudential doctrine” created by the Supreme Court “to compel respect
for the constitutional guaranty” against “unreasonable searches and seizures” under
the Fourth Amendment by requiring the courts to exclude illegally obtained
evidence. Davis, 131 S. Ct. at 2426 (quoting Elkins v. United States, 364 U.S. 206,
217, 80 S. Ct. 1437, 1444 (1960)); see also id. at 2427 (stating that exclusionary
rule is “a ‘judicially created remedy’ of this Court’s own making”) (quoting United
States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974)). It is neither a
“personal constitutional right” nor a redress for injury occasioned by an
unconstitutional search. Id. at 2426. Rather, the rule’s “sole purpose” is “to deter
future Fourth Amendment violations” by rendering evidence seized in violation of
the Fourth Amendment inadmissible. Id.
Having promulgated the exclusionary rule, however, the Supreme Court
recognized that its application “exacts a heavy toll” on the judicial system and the
public by requiring the courts “to ignore reliable, trustworthy evidence bearing on
guilt or innocence” and by causing the truth to be suppressed and criminals to be
4
set loose without punishment. Id. at 2427. Therefore, the Court further held that
“[w]here suppression fails to yield ‘appreciable deterrence,’ exclusion is
‘clearly . . . unwarranted.’” Id. at 2426–27 (quoting United States v. Janis, 428
U.S. 433, 454, 96 S. Ct. 3021, 3032 (1976)).
The Supreme Court thus requires a balancing test to determine whether
evidence should be excluded under the rule. See id. at 2427–28. Under this test,
exclusion is appropriate only when “the deterrence benefits of
suppression . . . outweigh its heavy costs.” Id. at 2427. “When the police exhibit
‘deliberate,’ ‘reckless’ or ‘grossly negligent’ disregard for Fourth Amendment
rights, the deterrent value of exclusion is strong and tends to outweigh the resulting
costs. But when the police act with an objectively ‘reasonable good-faith belief’
that their conduct is lawful, . . . the ‘deterrence rationale loses much of its force.’”
Id. at 2427–28 (citations omitted).
On the basis of this rationale, the Supreme Court has long “extended the
good-faith exception to searches conducted in reasonable reliance on subsequently
invalidated statutes”; and it has “‘never applied’ the exclusionary rule to suppress
evidence obtained as a result of nonculpable, innocent police conduct”; thus, it has
held that the exclusionary rule does not apply when police conduct a search in
“objectively reasonable reliance” on a warrant later held to be invalid. Id. at 2428–
29 (citing Illinois v. Krull, 480 U.S. 340, 349–50, 107 S. Ct. 1160, 1167 (1987),
5
and quoting Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702
(2009), and United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420
(1984)).
Relying on the foregoing reasoning and precedents, the Supreme Court held
in Davis that “[e]vidence obtained during a search conducted in reasonable reliance
on binding precedent is not subject to the exclusionary rule.” Id. at 2429. In
Davis, the Supreme Court expressly distinguished the exclusionary rule from the
retroactivity rule for newly created Fourth Amendment precedent first announced
in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987). See id. at 2429–30.
The retroactive application of a new substantive Fourth Amendment rule, it stated,
“raises the question whether a suppression remedy applies; it does not answer that
question.” Id. at 2431. The Court explained, “[E]xclusion of evidence does not
automatically follow from the fact that a Fourth Amendment violation occurred.
The remedy is subject to exceptions and applies only where its ‘purpose is
effectively advanced.’” Id. Thus, because “the sole purpose of the exclusionary
rule is to deter misconduct by law enforcement,” where the police have not been
guilty of any culpable conduct and have “reasonably relied on
binding . . . precedent” in executing a search, “[t]hat sort of blameless police
conduct . . . comes within the good-faith exception and is not properly subject to
the exclusionary rule.” Id. at 2432, 2434; see also Leon, 468 U.S. at 918, 104 S.
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Ct. at 3418 (“[S]uppression of evidence obtained pursuant to a warrant should be
ordered only on a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.”).
Assuming the applicability in Texas state courts of Supreme Court precedent
construing the Fourth Amendment, the exclusionary rule, and the good-faith
exception to that rule, this case falls squarely within the scope of the good-faith
exception to the federal exclusionary rule established by the Supreme Court in
Davis and its predecessors. Here, there is no evidence whatsoever that the police
exhibited “‘deliberate,’ ‘reckless’ or ‘grossly negligent’ disregard for Fourth
Amendment rights” when they relied, in part, on a warrantless dog-sniff search to
obtain a warrant to search appellant’s residence. See Davis, 131 S. Ct. at 2427.
Rather, they relied upon long-established and binding precedent in both the federal
courts and the Texas courts stating that a dog sniff was not a search within the
meaning of the Fourth Amendment and that the alert of a trained dog as to the
presence of contraband could be relied upon to establish probable cause to obtain a
legal warrant to search the premises where the alert occurred. See, e.g., Illinois v.
Caballes, 543 U.S. 405, 409, 410, 125 S. Ct. 834, 838 (2005) (use of “well-trained
narcotics-detection dog” on motor vehicle during traffic stop “does not rise to the
level of a constitutionally cognizable infringement” and “does not violate the
Fourth Amendment”); United States v. Tarazon-Silva, 166 F.3d 341, 341 (5th Cir.
7
1998) (per curiam) (dog sniff of outer edge of garage and dryer vent on exterior
wall of house was not search pursuant to Fourth Amendment); United States v.
Williams, 69 F.3d 27, 28 (5th Cir. 1995) (per curiam) (positive dog alert creates
probable cause to search vehicle); United States v. Seals, 987 F.2d 1102, 1106 (5th
Cir. 1993) (“A dog ‘sniff’ is not a search.”); Romo v. State, 315 S.W.3d 565, 573
(Tex. App.—Fort Worth 2010, pet. ref’d) (dog sniff of garage door and backyard
fence of defendant’s home not search for Fourth Amendment purposes); Rodriguez
v. State, 106 S.W.3d 224, 228–29 (Tex. App.—Houston [1st Dist.] 2003, pet ref’d)
(dog sniff conducted at front door of defendant’s home not search); Porter v. State,
93 S.W.3d 342, 346–47 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating
that investigative methods that can only detect existence of illegal items in home
and do not reveal legal information about interior are not searches for Fourth
Amendment purposes and holding that dog sniff outside front door did not
constitute search under Fourth Amendment).
As these federal and state precedents show, the case law relating to dog
sniffs occurring outside a public entrance to a defendant’s home was deemed valid
law at the time the search warrant issued in this case. It was only subsequently
abrogated by Jardines. At that time, this case was already on appeal.
Here, the affidavit executed by Officer Arthur detailing both his own and the
dog Sita’s detection of the odor of marijuana from outside appellant’s residence
8
was made in good faith, in reliance on binding precedent, and without culpability
of any kind on the part of the police. See 131 S. Ct. at 2426–29. “In the absence
of an allegation that the magistrate abandoned his detached and neutral role,
suppression is appropriate only if the officers were dishonest or reckless in
preparing their affidavit or could not have harbored an objectively reasonable
belief in the existence of probable cause.” Leon, 468 U.S. at 926, 104 S. Ct. at
3422. None of the conditions that would limit the applicability of the good-faith
exception apply here. Therefore, relying on federal and state precedent, and
applying the rule in Davis to the facts of this case, I would hold that, at the time it
was made, Officer Arthur’s affidavit provided probable cause for the magistrate to
issue the search warrant pursuant to which the police obtained the evidence of the
marijuana operation in appellant’s home upon which he was convicted. And, I
would further hold that the evidence obtained by the police in reliance on the
warrant issued by the magistrate based in part on the then-legal warrantless dog-
sniff search was admissible under the federal good-faith exception to the
exclusionary rule.
B. The Majority Opinion
The majority, however, holds that Texas’s statutory exclusionary rule and its
good-faith exception do not derive from the federal rule and, indeed, that Texas
law expressly overrides the federal rule with its statutory exclusionary rule set out
9
in Texas Code of Criminal Procedure article 38.23(a). With regard to Davis, the
majority states, “[W]e need not address the parties’ arguments about whether
Officer Arthur acted with objective good-faith reliance on binding precedent if
Davis does not create a valid exception to the Texas exclusionary statute.” Slip
Op. at 9. It then concludes that Davis’s holding is inconsistent with the terms of
Texas’s statutory good-faith exception to the exclusionary rule set out in article
38.23(b) and that Davis cannot and “does not create a valid exception to the Texas
exclusionary statute.” Slip Op. at 9, 13–14. Accordingly, it spends the rest of its
opinion explaining why, in its view, the federal good-faith exception to the
exclusionary rule, explicated in Davis, is inconsistent with Texas’ statutory
exclusionary rule and good-faith exception and is inapplicable here.
In my view, the majority opinion is based on two errors of law. First, Texas
did not pass its exclusionary statute to override the federal exclusionary rule and its
good-faith exception devised by the United States Supreme Court for use in
applying Fourth Amendment rulings. It did just the opposite: it expressly adopted
the federal rule and the federal case law that established and construes it.
Moreover, as shown above and below, the Texas courts have consistently followed
both federal and state precedent in construing this statute, with a lone exception for
a direct conflict between the language of article 38.23 and federal precedent—a
conflict not present in this case. Second, the majority’s conclusion that the warrant
10
upon which the search of appellant’s apartment was based was illegal at the time it
was issued assumes the answer to the question posed to this Court by the Court of
Criminal Appeals as its major premise. Therefore, it answers the question whether
the warrant was illegal at the time it was issued by concluding that because the
probable cause for the warrant was based in part on a warrantless dog-sniff search,
which was only subsequently held to be unconstitutional in Jardines, the warrant
was not based on probable cause at the time it was issued and, therefore, was
illegal. This argument is both circular and question-begging and, in my opinion,
its conclusion is incorrect.
1. Texas’s Exclusionary Rule: Code of Criminal Procedure Article 38.23
Texas’s exclusionary statute provides, in relevant part:
(a) No evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on
the trial of any criminal case.
....
(b) It is an exception to the provisions of Subsection (a) of this
Article that 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.
TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). Subsection (a) sets out the
exclusionary rule, and subsection (b) sets out the good-faith exception to the rule.
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2. Miles v. State and the Origin and Scope of Texas’s Exclusionary Rule
Relying on the Court of Criminal Appeals’ 2007 opinion in Miles v. State,
the majority claims that the Texas exclusionary rule “is not merely a judicial
creation” but “was enacted by the legislature,” so that Texas courts may disregard
the United States Supreme Court’s construction of the rule. See Slip Op. at 10
(citing Miles v. State, 241 S.W.3d 28, 33–36 (Tex. Crim. App. 2007)). This is the
opposite of what Miles actually says and is an incorrect statement of Texas law.
The majority then states, “The Texas exclusionary statute is ‘broader than its
federal counterpart’ and is therefore more broadly protective of individual rights.”
Id. at 11 (quoting Miles, 241 S.W.3d at 34). This statement is narrowly correct, but
is applied by the majority out of context in this case to reach a conclusion
supported neither by the text of the Texas exclusionary statute nor by the
construction of that statute and its history as explicated by the Court of Criminal
Appeals in Miles.
Miles discusses the history of the exclusionary rule at length, pointing out
that the Texas Legislature enacted the predecessor to article 38.23 in 1925
expressly to overrule the 1922 Court of Criminal Appeals Prohibition-era case,
Welchek v. State, 247 S.W. 524 (Tex. Crim. App. 1922). 241 S.W.3d at 33. In
Welchek, the Court of Criminal Appeals had refused to recognize an exclusionary
rule under the Texas Constitution for three jugs of whiskey seized without a
12
warrant and had “specifically rejected the reasoning of the United States Supreme
Court cases that had imposed an exclusionary rule on federal courts under the
Fourth Amendment.” Id. The statute was thus enacted by the Texas Legislature to
impose on Texas courts the exclusionary rule created by the United States Supreme
Court for use in the federal courts. And it statutorily abrogated the Court of
Criminal Appeals case that had refused to recognize the rule.
The Court of Criminal Appeals stated in Miles—directly contrary to what
the majority says it states—that by enacting the exclusionary rule, now article
38.23, “[t]he Legislature thus ‘sanctioned the construction by the Federal courts of
the search-and-seizure clause of the [federal] Constitution.’” Id. at 34 (quoting
Chapin v. State, 296 S.W. 1095, 1100 (Tex. Crim. App. 1927)). The only
difference with respect to the exclusionary rule as set out in the predecessor to
article 38.23(a) was that the Texas Legislature expanded the rule to apply not only
to evidence illegally seized by government officials, as the federal rule does, but
also to evidence illegally seized by private individuals, by adding the phrase “or
other person” to article 38.23(a). Id. at 34–35. Thus, the rule excludes evidence
obtained “in violation of any provision of the Constitution or laws of the State of
Texas, or of the United States of America” not only by “an officer” but also by an
“other person,” including “‘vigilante-type private citizens [acting] in concert with
the police conducting illegal searches for whiskey.’” Id. at 33–35 (quoting State v.
13
Johnson, 939 S.W.2d 586, 591 (Tex. Crim. App. 1996) (McCormick, P.J.,
dissenting)). However, this is the only way mentioned in Miles in which the Texas
exclusionary rule was made statutorily broader than the federal rule. Because the
issue in this case is the application of the exclusionary rule to evidence seized by
police officers, the fact that article 38.23(a) extends the protection of the
exclusionary rule to evidence seized by “other person[s]” is irrelevant to this case.
Thus, there is no support in Miles for the majority’s broadening of the exclusionary
rule on the ground that article 38.23(a) is broader than the federal exclusionary
rule.
The Court of Criminal Appeals’ opinion in Miles cannot plausibly be
construed as providing that, in enacting the exclusionary rule by statute in Texas,
the Texas Legislature intended to reject the federal exclusionary rule and its
construction by the federal courts and to impose broader protections against
searches and the seizure of evidence by police than the United States Supreme
Court has imposed upon the federal courts. See id. at 34 (stating that, in enacting
predecessor to article 38.23, Legislature “sanctioned the construction by the
Federal courts of the search-and-seizure clause of the [federal] Constitution”). The
only material difference between the exclusionary rule set out in article 38.23(a)
and the federal rule is that the Texas statute extends the exclusionary rule to
14
evidence seized by “other persons” acting illegally. The majority’s argument that
Miles supports its conclusion is, in my view, without merit.
Miles did not, however, deal with or discuss the statutory good-faith
exception to the exclusionary rule set out in article 38.23(b).
3. The “Warrant Based on Probable Cause” Requirement and Article
38.23(b)’s “Good-Faith Exception” to the Exclusionary Rule
The majority also claims that the good-faith exception to the exclusionary
rule, as the Supreme Court explicated it in Davis, cannot apply to this case because
it is not consistent with the text of article 38.23(b), which sets out the good-faith
exception to the exclusionary rule. See Slip Op. at 12–13. That text provides for
an exception to the exclusionary rule for evidence “obtained by a law enforcement
officer acting in objective good faith reliance upon a warrant issued by a neutral
magistrate based on probable cause.” TEX. CODE CRIM. PROC. ANN. art. 38.23(b).
The majority opines, “Notably, the statute contains an explicit exception in
subsection (b) for evidence obtained in objective good-faith reliance on a warrant
‘based on probable cause.’ The Court of Criminal Appeals has refused to entertain
exceptions to the Texas exclusionary rule that are not consistent with Article
38.23’s text.” Slip Op. at 12 (quoting TEX. CODE CRIM. PROC. ANN. art. 38.23(b)).
The majority opines that the good-faith exception to the exclusionary rule in
Davis does not apply in this case because the good-faith exception as explicated in
that federal Supreme Court case conflicts with the express language of article
15
38.23(b) by allowing illegally obtained evidence to be admitted. Slip Op. at 13–
14. Thus, it opines, Davis creates an exception to the exclusionary rule in conflict
with Texas law. Id. It also concludes that Texas case law, in construing the good-
faith exception in article 38.23(b), does not recognize the authority of federal cases
construing the federal good-faith exception to the exclusionary rule as precedential
or persuasive. Slip Op. at 17–18. I disagree with both arguments and address
them in turn.
a. The argument that Davis conflicts with article 38.23(b)
Despite the majority’s claims, there is no conflict between the plain
language of article 38.23(b) and Davis. Article 38.23(b) provides a statutory good-
faith exception to the exclusionary rule that permits the admission of evidence that
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 TEX.
CODE CRIM. PROC. ANN. art. 38.23(b). Davis does not conflict with that language
in any way. And merely claiming—as the majority does—that Davis conflicts
with the text of article 38.23(b) because a warrantless dog-sniff search is unlawful
and therefore cannot provide probable cause for a warrant entirely begs the
question posed to this Court by the Court of Criminal Appeals: Does the good-faith
exception to the exclusionary rule preserve the admissibility of evidence that was
obtained pursuant to a warrant issued on the basis of probable cause supplied, in
16
part, by a warrantless search that was deemed lawful under binding precedent at
the time of the search but that was subsequently held by a new ruling of the
Supreme Court to be unlawful under the Fourth Amendment? Or does the
subsequent Supreme Court ruling holding a warrantless dog-sniff search to be
illegal operate retroactively to make the warrantless dog-sniff search unlawful at
the time of the search, vitiating the probable cause relied upon to obtain the
warrant to search appellant’s apartment and rendering that search unlawful and the
evidence seized inadmissible?
Davis says that the Supreme Court’s subsequent ruling that a warrantless
search is constitutionally invalid does not retroactively render inadmissible
evidence that was obtained by police officers in good-faith reliance on binding
precedent that, at the time of a warrantless search, deemed the search legal, and no
Texas law says anything different. See 131 S. Ct. at 2429. The majority, however,
ignores Davis as inapplicable and says, on the basis of no authority other than its
misreading of relevant law, that Jardines made the dog-sniff search in this case
retroactively illegal and therefore the good-faith exception does not apply.
Essentially, the majority reasons that article 38.23(b) saves from exclusion
only evidence seized in good-faith reliance on a warrant “based on probable
cause,” and it concludes that the evidence in this case was not obtained pursuant to
a warrant “based on probable cause” because Jardines retroactively vitiated the
17
probable cause finding necessary to sustain the warrant when it declared the
warrantless dog-sniff on which this warrant was, in part, obtained unconstitutional.
See Slip Op. at 15–17. But this argument, as stated above, is circular. A circular
argument is an invalid argument that cannot support a legal ruling—here, the
majority’s ruling that Jardines applies retroactively to exclude the marijuana
evidence seized from appellant’s house.
When the question posed to us by the Court of Criminal Appeals is actually
addressed, the answer to it is the opposite of the majority’s. At the time the
warrant issued in this case—which was well prior to the Supreme Court’s decision
in Jardines declaring warrantless dog-sniff searches occurring on the curtilage of a
residence unconstitutional—an unbroken string of Texas precedential cases relying
on both federal and Texas law interpreted the Fourth Amendment to permit just
such warrantless dog sniffs. See Caballes, 543 U.S. at 409, 410, 125 S. Ct. at 838
(use of “well-trained narcotics-detection dog” during traffic stop does not violate
Fourth Amendment); Tarazon-Silva, 166 F.3d at 341 (dog sniff of garage and vent
on exterior of house not search under Fourth Amendment); Williams, 69 F.3d at 28
(positive dog alert creates probable cause to search vehicle); Romo, 315 S.W.3d at
573 (dog sniff of garage door and backyard fence not search under Fourth
Amendment); Rodriguez, 106 S.W.3d at 228–29 (dog sniff at front door of house
not search); Porter, 93 S.W.3d at 346–47 (same). Therefore, under Davis, the
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evidence seized pursuant to the warrant here should not have been excluded, as it
was seized pursuant to “a warrant issued by a neutral magistrate based on probable
cause,” as required by the plain language of article 38.23(b), and that was obtained
by officers acting in good-faith reliance on a warrantless dog-sniff search, which
had long been held to be legal under binding Texas and federal precedent.
Jardines construes the reach of the Fourth Amendment and Davis continues
a long line of federal and state cases construing the exclusionary rule and holding
that evidence seized in violation of the Fourth Amendment through police
misconduct must be excluded but that evidence seized by the police in good faith
need not be.
b. Texas case law construing the scope of the good faith exception
No Texas case law prior to the majority opinion in this case has held that
Texas does not follow United States Supreme Court rulings construing the
exclusionary rule and its good faith exception. Rather, Miles expressly states that,
in enacting the predecessor to article 38.23, the Texas Legislature “sanctioned the
construction by the Federal courts of the search-and-seizure clause of the [federal]
Constitution.” 241 S.W.3d at 34 (quoting Chapin, 296 S.W. at 1100). And the
Texas exclusionary statute was explicitly based on the federal exclusionary rule—
as the Court of Criminal Appeals has acknowledged. See id.
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The majority places great emphasis on two Court of Criminal Appeals
opinions construing Texas’s statutory good-faith exception to the exclusionary rule
that it contends support its ruling—Wehrenberg v. State, 416 S.W.3d 458 (Tex.
Crim. App. 2013), and State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App.
1996). Neither of these cases, however, supports the majority’s opinion. Rather,
as the cases show, federal law construing the exclusionary rule and the good-faith
exception apply in every Texas state court case under article 38.23 unless the
express language of that article renders federal precedent inapplicable. Daugherty
and Wehrenberg illustrate this point.
In Daugherty, the Court of Criminal Appeals held that the federal
“inevitable discovery” doctrine—which permits the admission of evidence in
federal court that was unlawfully obtained but that would inevitably have been
discovered—is inapplicable in Texas because the plain language of article 38.23(b)
provides a good faith exception to the exclusionary rule only for evidence that was
lawfully obtained. See 931 S.W.2d at 270. Specifically, article 38.23(b) protects
the admissibility only of “evidence . . . obtained by a law enforcement officer
acting in objective good faith reliance upon a warrant issued . . . based on probable
cause.” TEX. CODE CRIM. PROC. ANN. art. 38.23(b). The court held in Daugherty
that the terms of article 38.23 “must apply in all cases not excepted” and that when
the evidence was, in fact, seized illegally, the illegality of the seizure may not be
20
ignored simply because the evidence would have been discovered anyway. 931
S.W.2d at 270–71. However, Daugherty, by its own terms, is inapplicable in this
case because the inculpatory evidence against appellant was obtained pursuant to a
warrant that was issued on the basis of probable cause that was deemed lawfully
obtained under both federal and state precedent at the time of the search. The
courts, therefore, do not have to rely in this case on the inevitable discovery of
appellant’s marijuana operation to justify admissibility of that evidence because it
was obtained pursuant to a warrant that was itself deemed lawfully obtained at the
time it issued. This is the exact opposite of the situation in Daugherty.
Wehrenberg, however, represents the other side of the coin from Daugherty,
and it is applicable here. In that case, the Court of Criminal Appeals upheld the
admissibility in Texas courts of evidence lawfully obtained pursuant to the federal
“independent source” doctrine. Wehrenberg, 416 S.W.3d at 472–73. And it
specifically contrasted that doctrine with the “inevitable discovery” doctrine,
which the court had held in Daugherty does not save from exclusion evidence
unlawfully obtained on the ground that it inevitably would have been discovered.
Id. The court explained the difference, stating, “Although evidence that has
actually been acquired in an unlawful manner is considered ‘obtained’ in violation
of the law, regardless of whether it inevitably would have been discovered, the
same cannot be said of evidence discovered and obtained pursuant to an
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independent source because that evidence is lawfully obtained at the time of
seizure.” Id. (emphasis added). This is exactly what happened here.
This case is properly governed by Wehrenberg and Davis. There is no
inconsistency between the plain language of article 38.23 and Davis’s (and its
federal and state predecessors’) holding that the exclusionary rule does not apply to
evidence obtained when police conduct a search in “objectively reasonable
reliance” on a warrant lawfully obtained under “binding judicial precedent” at the
time of the search, even if, under a subsequent Supreme Court interpretation of the
Fourth Amendment, the warrant would be considered to have been unlawfully
obtained. See Davis, 131 S. Ct. at 2428. There is also no evidence of any culpable
police conduct that would render the good-faith exception inapplicable. See id. at
2428–29. And there is no language in article 38.23(b) that is inconsistent with the
Texas courts holding admissible evidence obtained in “objective good faith
reliance upon a warrant issued by a neutral magistrate based on probable cause” at
the time of seizure. See TEX. CODE CRIM. PROC. ANN. art. 38.23(b). Thus, under
Davis and Wehrenberg, the evidence of appellant’s marijuana operation should be
deemed “lawfully obtained at the time of seizure.” See Wehrenberg, 416 S.W.3d
at 473.
In sum, Jardines extends the protection of the exclusionary rule to evidence
seized as a result of a warrantless dog sniff on the curtilage of a residence. And
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Davis preserves the admissibility of evidence seized by the police prior to that
ruling pursuant to a warrant obtained in good-faith reliance on binding precedent at
the time the warrant was obtained. Nothing in Texas law or in the text of article
38.23 provides any basis for applying Jardines and ignoring Davis in this case.
Having failed to address Davis, however, and without showing any genuine
conflict between the federal good-faith exception to the exclusionary rule as
explicated in Davis and the express terms of Texas’s statutory good-faith exception
set out in article 38.23(b) or any genuine conflict between applicable federal law
construing the good-faith exception and controlling Texas precedent, the majority
in this case does exactly the opposite of what the Supreme Court said in Davis that
a court construing the exclusionary rule and its good-faith exception in deciding
Fourth Amendment cases should do: it declares the warrant obtained by Officer
Arthur to search appellant’s residence to be illegal because of the subsequent
change in the construction of the Fourth Amendment by the Supreme Court in
Jardines and then declares the officers’ actions in executing the warrant
retroactively illegal and the evidence seized under the warrant inadmissible, even
though the search was undertaken in objective good faith and was based on
probable cause under precedent binding at the time the warrant was issued.
The majority’s construction of the text of article 38.23 is not only unfounded
in law but objectively unreasonable under the Supreme Court and Texas cases that
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established the exclusionary rule and its good faith exception, in that it entails
exactly the absurd consequences avoided by applying the exclusionary rule and the
good-faith exception in accordance with Davis, Miles, and Wehrenberg. The
majority opinion requires the courts to construe the exclusionary rule as having the
opposite purpose from that for which it was promulgated—the deterrence of police
illegality—and to apply it where that purpose is not advanced and, therefore,
should not be applied. See Miles, 241 S.W.3d at 35 (“Deterrence of police
illegality is the ‘core’ rationale for applying the federal exclusionary rule . . . .”);
see also Davis, 131 S. Ct. at 2431 (“[E]xclusion of evidence does not automatically
follow from the fact that a Fourth Amendment violation occurred. The remedy is
subject to exceptions and applies only where its ‘purpose is effectively
advanced.’”) (citations omitted). The majority’s holding thus vitiates the purpose
of both the exclusionary rule and the good faith exception.
For the foregoing reasons, I cannot join the majority opinion or its holding,
and I therefore must dissent.
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Conclusion
I would affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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