PD-1641-15 PD-1641-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
No. ________ Transmitted 12/18/2015 9:24:13 AM
Accepted 12/19/2015 9:48:52 AM
ABEL ACOSTA
In the CLERK
Texas Court of Criminal Appeals
at Austin
♦
No. 01-11-00572-CR
In the Court of Appeals for the
First District of Texas
at Houston
♦
BRADLEY RAY MCCLINTOCK
Appellant
V.
THE STATE OF TEXAS
Appellee
♦
STATE’S PETITION FOR DISCRETIONARY REVIEW
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
December 18, 2015 AARON BURDETTE
MICHELE ONCKEN
Assistant District Attorneys
Harris County, Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713.274.5826
STATEMENT REGARDING ORAL ARGUMENT
In light of the law in Texas prior to the recent Supreme Court’s opinion
Florida v. Jardines, this case presents the issue of whether the First Court of Appeals
erroneously failed to apply Davis v. United States, dictating there can be no exclusion
of innocent police conduct “when binding appellate precedent specifically
authorizes a particular police practice” that might later be found unconstitutional.
The undersigned attorney would be delighted to present oral argument if this
Court would find it helpful.
i
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below:
Counsel for the State:
Devon Anderson District Attorney of Harris County
Bridget Holloway Assistant District Attorney on appeal
Aaron Burdette Assistant District Attorney at hearing
Michele Oncken Assistant District Attorney at hearing
Appellant or criminal defendant:
Bradley Ray McClintock
Counsel for Appellant:
Norman Silverman Counsel on appeal and at hearing
Trial Judge:
Honorable Jeannine Barr Presiding Judge
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
IDENTIFICATION OF THE PARTIES ............................................................................. ii
TABLE OF CONTENTS ................................................................................................... iii
INDEX OF AUTHORITIES .............................................................................................. iv
STATEMENT OF THE CASE ........................................................................................... 1
STATEMENT OF THE PROCEDURAL HISTORY ........................................................ 1
STATEMENT OF FACTS .................................................................................................. 4
STATE’S TWO GROUNDS FOR REVIEW ..................................................................... 6
REASONS FOR GRANTING REVIEW ............................................................................ 7
FIRST GROUND FOR REVIEW ....................................................................................... 8
Does the United State Supreme Court’s exception to the exclusionary
rule, held under Davis v. United States, 131 S.Ct. 2419 (2001), apply to
Texas’ exclusionary rule?
ARGUMENT................................................................................................................... 8
SECOND GROUND FOR REVIEW ................................................................................ 13
If the United States Supreme Court’s Davis exception to the
exclusionary rule, or at least the purpose behind it, applies to Texas’
exclusionary rule, the First Court of Appeals erred in excluding
evidence obtained legally under binding authority at the time the
search warrant was issued.
ARGUMENT................................................................................................................. 13
PRAYER ........................................................................................................................... 17
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE............................ 18
iii
INDEX OF AUTHORITIES
CASES
Curry v. State,
808 S.W.2d 481 (Tex. Crim. App. 1991) .................................................................... 11, 12
Davis v. United States,
131 S.Ct. 2419 (2011) .................................................................................................... 7, 8, 10
Florida v. Jardines,
133 S.Ct. 1409 (2013) ........................................................................................... 1, 13, 14, 15
Illinois Caballes,
543 U.S. 405 (2005) .............................................................................................................13
Jardines v. State,
73 So.3d 34 (Fla. 2011) ......................................................................................................... 14
Kyllo v. United States,
533 U.S. 27 (2001) .................................................................................................................13
McClintock v. State,
__ S.W.3d __, No. 01-11-00572-CR, 2015 WL 6851826
(Tex. App. —Houston [14th Dist.] Nov. 5, 2015) (brief on remand) ............ passim
McClintock v. State,
405 S.W.3d 277 (Tex. App. —Houston [1st Dist.] 2013),
rev’d __S.W.3d__, 2014 WL 4843959 (Tex. Crim. App. Oct. 1, 2014) ......................... 1
McClintock v. State,
444 S.W.3d 15 (Tex. Crim. App. 2014) ............................................................................ 2
Miles v. State,
241 S.W.3d 28 (Tex. Crim. App. 2007) ............................................................................ 9
Porter v. State,
93 S.W.3d 342
(Tex. App. —Houston [14th Dist.] 2002 pet. ref’d) ....................................................13
iv
Rodriguez v. State,
106 S.W.3d 224
(Tex. App. —Houston [1st Dist.] 2003 pet. ref’d) ........................................................13
Romo v. State,
106 S.W.3d 224
(Tex. App. —Houston [1st Dist.} 2003, pe. ref’d)........................................................ 14
State v. Daugherty,
931 S.W.3d 268 (Tex. Crim. App. 1996) .......................................................................... 11
State v. Jackson,
435 S.W.3d 819
(Tex. App. —Eastland 2014, pet. granted Oct. 8, 2014) ............................................ 16
State v. Rabb,
920 So.3d 1175 (Fla. 4th DCA 2006) ............................................................................... 14
Taylor v. State,
419 S.W.3d 520
(Tex. App. —Amarillo 2013, no pet.).............................................................................. 16
United States v. Jones,
132 S.Ct. 945 (2012)..............................................................................................................13
Wehrenberg v. State,
416 S.W.3d 458 (Tex. Crim. App. 2013)......................................................................... 10
v
STATUTES
TEX. CODE CRIM. PROC. ANN.
art. 38.23(a) (West 2012)................................................................................................... 14
TEX. CODE CRIM. PROC. ANN.
art. 38.23(b) (West 2012) ...................................................................................... 10, 12, 14
RULES
TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................... ii
TEX. R. APP. P. 66.3(c)................................................................................................................ 7
TEX. R. APP. P. 66.3(e) ............................................................................................................... 7
TEX. R. APP. P. 66.3(f) ................................................................................................................ 7
TEX. R. APP. P. 68.2(a) ............................................................................................................... 3
vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
Appellant, Bradley Ray McClintock, was charged by indictment with the
felony of possession of marijuana after marijuana was obtained pursuant to a
search warrant with evidence of a canine sniff. (CR at 7). The trial court denied
appellant’s motion to suppress, and appellant, thereafter, entered a plea of guilty
to the lesser state jail felony offense of possession of marijuana. (CR at 25-26).
Appellant was sentenced to three years deferred adjudication and assessed a $500
fine. (CR at 31). Appellant appealed the trial court’s denial of his motion to
suppress.
♦
STATEMENT OF THE PROCEDURAL HISTORY
While this case was pending on appeal, the United States Supreme Court
issued Florida v. Jardines, 133 S.Ct. 1409 (2013). The First Court of Appeals issued its
opinion in this case three months later. Relying on Jardines, the Court concluded
the search warrant was not based upon probable cause because the dog-sniff at
appellant’s door was unconstitutional and the rest of the warrant was insufficient
to establish probable cause. See McClintock v. State, 405 S.W.3d 277 (Tex. App. —
Houston [1st Dist.] 2013), rev’d 444 S.W.3d 15 (Tex. Crim. App. 2014).
This Court granted the State’s following two issues on petition for
discretionary review on November 20, 2013:
First: Under Davis v. United States, the First Court of
Appeals erred in concluding that the probable
cause supporting a search warrant issued prior to
United States v. Jones and Florida v. Jardines needed to
be reviewed on appeal without the canine sniff
when the officers and the magistrate relied in good
faith on existing good law at the time the warrant
was issued.
Second: The First Court of Appeals erred in finding the
affidavit supporting the search warrant lacked
probable cause upon excluding the canine sniff.
On October 1, 2014, this Court issued a published opinion rejecting the State’s
second ground for review, “albeit for reasons somewhat different than those of the
court of appeals,” and remanded this case back to the appellate court to consider
the first ground for review. See McClintock v. State, 444 S.W.3d 15, 18, 20-21 (Tex.
Crim. App. 2014).
After both parties filed briefs addressing the first ground, the First Court of
Appeals held, in a published opinion, “that the judge-made Davis exception to the
judge-made federal exclusionary rule does not create an exception to the Texas
exclusionary rule adopted by the Texas Legislature” and reversed and remanded
the case for a new trial without the evidence “that should have been suppressed.”
See McClintock v. State, __ S.W.3d __, No. 01-11-00572-CR, 2015 WL 6851826 (Tex.
2
App. —Houston [14th Dist.] Nov. 5, 2015) (brief on remand) (Appendix A). Judge
E. Keyes disagreed with a published dissent, noting she “would hold, in
accordance with Davis, that the good-faith exception to the exclusionary rule
applies in this case” because “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.” See id., slip op. at 3 (Keyes,
J. dissenting) (Appendix B). The State now timely files its petition for
discretionary review in accordance with TEX. R. APP. P. 68.2(a).
♦
3
STATEMENT OF FACTS
The Texas Department of Public Safety received information that marijuana
was being grown on the second floor of a duplex at 412 W. Clay Street in Houston
and began conducting surveillance. Appellant was observed going to the back of
the duplex. Appellant did not, however, use either of the front two doors that led
into a business on the first floor. Inside the business, accessible by only one of the
two first floor front doors, there did not appear to be any stairs that led to the
second floor. The windows of the second floor were blacked out with material
that resembled aluminum foil and there were multiple window air conditioning
units running. For several days, appellant was seen arriving early in the morning,
parking in the rear of the building, before leaving a few hours later. After multiple
days of surveillance, no one was ever seen using the other first floor front door.
Multiple vehicles were observed parked for extended periods of time in the
parking lot on occasion.
Two driveways lead to the back of the duplex to a rear parking lot with a
concrete slab surface. No gates, fences, or any type of obstruction block either
driveway or prevent access to the parking area behind the duplex. There was a
staircase on the back of the building that led to a door on the second floor. Agent
R. Arthur, the affiant, detected what he knew from his training and experience to
be the odor of marijuana while on the sidewalk. The smell continued up the
4
driveway to the parking area in the back of the building. At this point, he
requested the assistance of a narcotics canine. The canine officer and partner
“Sita” walked up the stairs to the second floor back door and Sita gave a positive
alert to the presence of a controlled substance. The canine officer observed a towel
and plastic sealing the bottom of the back door and around the seam near the door
handle. This is known to be used to “seal odors.” (CR at 12-16).
A warrant, supported by an affidavit from Agent Arthur, was obtained a day
later. (CR at 26). The affidavit included the following facts:
• Surveillance was set up at 412 W. Clay after receiving a tip that
“marijuana was being grown inside the 2nd floor residence;”
• A business operated on the bottom floor;
• “[A]n open to the public stairway” led to upstairs on the back
of the building;
• The stairs are located off a public parking area for the business;
• There are no gates, fences, or a door that blocks the stairway
from the parking lot;
• A male was observed coming and going from the back of the
building at hours consistent with possible narcotics activity;
• Agent Arthur smelled the odor of marijuana outside this
location; and
• “Sita,” who is a canine certified with the National Narcotics
Detector Dog Association, gave a positive alert to the presence
of marijuana, cocaine, and/or methamphetamine by the second
floor doorway.
5
Appellant filed a motion to suppress the marijuana seized pursuant to the
warrant. (CR at 16). He claimed the warrant lacked probable cause because the
affidavit misrepresented the stairway as “open to the public.” (CR at 17). The trial
court denied appellant’s motion to suppress, finding the stairs were not part of the
curtilage. (RR at 17).
♦
STATE’S TWO GROUNDS FOR REVIEW
First: Does the United State Supreme Court’s exception to the exclusionary
rule, held under Davis v. United States, 131 S.Ct. 2419 (2001), apply to
Texas’ exclusionary rule?
Second: If the United States Supreme Court’s Davis exception to the
exclusionary rule, or at least the purpose behind it, applies to Texas’
exclusionary rule, the First Court of Appeals erred in excluding
evidence obtained legally under binding authority at the time the
search warrant was issued.
♦
6
REASONS FOR GRANTING REVIEW
This petition for discretionary review should be granted pursuant to TEX. R.
APP. P. 66.3(c) because the First Court of Appeals’ published opinion in this case
conflicts with the United States Supreme Court’s opinion in Davis v. United States,
131 S.Ct. 2419, 2426–27 (2011) that dictates there can be no exclusion of police
conduct “when binding appellate precedent specifically authorizes a particular
police practice” that might later be found unconstitutional. This petition for
discretionary review should be granted pursuant to TEX. R. APP. P. 66.3(e) because
the justices of the First Court of Appeals have disagreed on a material question of
law necessary to the court’s decision as evidenced by the dissent in this case.
Furthermore, this petition for discretionary review should be granted pursuant to
TEX. R. APP. P. 66.3(f) because the First Court of Appeals’ published decision
greatly departs from the jurisprudence of this State regarding the application of
Davis v. United States.
♦
7
FIRST GROUND FOR REVIEW
Does the United State Supreme Court’s exception to the
exclusionary rule, held under Davis v. United States, 131 S.Ct. 2419
(2001), apply to Texas’ exclusionary rule?
ARGUMENT
The Supreme Court held in Davis v. United States, 131 S.Ct. 2419 (2011) that
“Evidence obtained during a search conducted in reasonable reliance on binding
precedent is not subject to the exclusionary rule.” See id. at 2429. The First Court
of Appeals concluded that Davis, however, did not apply in Texas because its
exclusionary rule and good-faith exception are statutory and not judicially created
like the federal rule in Davis. See McClintock, slip op. at 17-18. Justice Keyes
disagreed, finding “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.” See McClintock, slip op. at 4 (Keyes, J. dissenting).
Justice Keyes points out two errors of law in the majority’s opinion. First,
Article 38.23 was not created to override the federal exclusionary rule and good-
faith exception devised by the United States Supreme Court for use in Fourth
Amendment rulings. Texas courts have consistently followed both federal and
state precedent in construing Article 38.23 (except for a conflict in the language
8
that is not at issue in this case). The majority erroneously relies on this Court’s
opinion in Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) to conclude that
Texas Courts may disregard the United State Supreme Court’s construction of the
federal exclusionary rule. See McClintock, slip op. at 10; slip op. at 12 (Keyes, J.
dissenting). Contrary to the majority’s view, however, Miles states that Article
38.23 “sanctioned the construction by the Federal courts of the search-and-seizure
clause of the [federal] Constitution.” See McClintock, slip op. at 13 (Keyes, J.
dissenting) (quoting Miles, 241 S.W.3d at 34). The only difference is that the Texas
Legislature applied the exclusionary rule to evidence illegally seized by private
individuals, which is not at issue here. See id. Here, the exclusion of evidence
under Article 38.23(a) is based upon a claim of a Fourth Amendment violation.
Where the Fourth Amendment of the United States is invoked as the basis of
exclusion, the principles underlying the federal exception to the exclusionary rule
should be recognized and applied. “Evidence seized in violation of the Fourth
Amendment through police misconduct must be excluded, but [ ] evidence seized
by the police in good faith need not be.” McClintock, slip op. at 19 (Keyes, J.
dissenting).
Second, the majority also erroneously concluded that Davis is in direct
conflict with Texas law and that Texas law does not recognize federal cases
construing the federal good-faith exception to the exclusionary rule. Article
9
38.23(b) provides an exception to the Texas exclusionary rule to permit 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. See TEX. CODE
CRIM. PROC. art. 38.23(b) (West 2012). As noted by Justice Keyes, Davis does not
conflict with that language. See McClintock, slip op. at 16 (Keyes, J. dissenting). The
majority concluded it does by incorrectly “assum[ing]” the warrant at issue here was
illegal when it was issued based solely on an act within it being illegal now. See id.,
slip op. at 11 (Keyes, J. dissenting). That conclusion is directly contrary to the
intent and purpose behind Davis. Davis held that a subsequent ruling by the Court
that a warrantless search is constitutionally invalid does not apply retroactively to
render evidence obtained in good-faith reliance on binding precedent inadmissible.
See Davis, 131 S.Ct. at 2429. The majority, however, applied the subsequent ruling
retroactively by concluding the search warrant at issue was not based upon
probable cause because of the subsequent ruling. See McClintock, slip op. at 18; slip
op. at 17-18 (Keyes, J. dissenting). Not only does the majority completely ignore
Davis, but “this argument…is circular.” See McClintock, slip op. at 18 (Keyes, J.
dissenting).
As noted by the dissent, the majority erroneously relied on Wehrenberg v. State,
416 S.W.3d 458 (Tex. Crim. App. 2013) and State v. Daugherty, 931 S.W.3d 268 (Tex.
10
Crim. App. 1996) in supporting its position. Daugherty is inapplicable because the
“inevitable discovery” of unlawfully obtained evidence goes against the plain
language of Article 38.23(b), providing a good-faith exception to “lawfully”
obtained evidence only. See McClintock, slip op. at 20 (Keyes, J. dissenting). And, in
Wahrenberg, this Court upheld the admissibility of evidence lawfully obtained
pursuant to the federal “independent source” doctrine because the evidence was
lawfully obtained, as required by Article 38.23. See id., slip op. at 21-22 (Keyes, J.
dissenting).
Under Davis and Wehrenberg, the evidence in this case was obtained lawfully
at the time of seizure. The majority erred in retroactively applying Jardines and in
ignoring Davis. The majority’s opinion “vitiates the purpose of both the
exclusionary rule and the good faith exception” —to deter police misconduct. See
McClintock, slip op. at 24 (Keyes, J. dissenting).
Furthermore, the majority cites to this Court’s opinion in Curry v. State, 808
S.W.2d 481 (Tex. Crim. App. 1991) for the proposition that this Court has held
that “based on probable cause” does not include “an officer’s good-faith reliance on
a warrant subsequently invalidated for lack of probable cause.” See McClintock, slip.
op. at 17. In Curry, however, the warrant was subsequently invalidated for
probable cause because it never contained probable cause. In fact, this Court
11
explicitly qualified its holding in Curry as requiring an “initial determination of
probable cause,” see Curry, 808 S.W.2d at 482 (emphasis added), which is
supported by the plain wording of Article 38.23(b), that in order to apply the
good-faith exception, officers must have acted in reliance upon “a warrant issued by
a neutral magistrate based upon probable cause.” See TEX. CODE CRIM. PROC. ANN.
art. 38.23(b). The majority’s reliance on Curry, therefore, is misplaced, and its
interpretation of Article 38.23(b) deprives it of its intended purpose.
The United States Supreme Court’s Davis exception to the exclusionary rule,
and the purpose behind it, should apply to the Texas’ exclusionary rule. Here, a
facially valid warrant was issued based upon an initial determination of probable
cause. The State’s first ground for review should be granted.
♦
12
SECOND GROUND FOR REVIEW
If the United States Supreme Court’s Davis exception to the
exclusionary rule, or at least the purpose behind it, applies to
Texas’ exclusionary rule, the First Court of Appeals erred in
excluding evidence obtained legally under binding authority at
the time the search warrant was issued.
ARGUMENT
The First Court of Appeals erred in finding the trial court abused its
discretion in denying appellant’s motion to suppress when both the officers and
the magistrate were following the state of the law in Texas at the time the warrant
was issued. The search warrant for the second floor of 412 West Clay was issued
in September 2010. (Supp. CR at 20). United States v. Jones, 132 S.Ct. 945 (2012) was
issued over a year after the search warrant was issued, and during the pendency of
appellant’s appeal, the United States Supreme Court issued Jardines. It is beyond
dispute that as of September 2010, when Agent Arthur acted, precedent
specifically authorized law enforcement to use a drug-detection dog to seek out
illegal narcotics in an area open to the public. See Illinois Caballes543 U.S. 405, 409
(2005); Porter v. State, 93 S.W.3d 342, 346, n. 6 (Tex. App. —Houston [14th Dist.]
2002 pet. ref’d) (interpreting Kyllo v. United States, 533 U.S. 27, 31–34 (2001));
Rodriguez v. State, 106 S.W.3d 224, 229 (Tex. App. —Houston [1st Dist.] 2003 pet.
ref’d); Romo v. State, 106 S.W.3d 224 (Tex. App. —Houston [1st Dist.} 2003, pe.
13
ref’d). 1 Thus, prior to the decision in Jardines, the use of a narcotics detection dog
was not considered a “search” under precedent in Texas.
Article 38.23(a) of the Code of Criminal Procedure excludes, “evidence
obtained by an officer or other person in violation of any provision of the
Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America.” See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West
2012). Article 38.23(b), however, provides a good-faith exception that allows
evidence obtained in good-faith reliance on a warrant issued by a neutral
magistrate based upon probable cause to be admissible. TEX. CODE CRIM. PROC.
ANN. art. 38.23(b) (West 2012).
Here, the officers did all they could do in seeking to comply with the law. In
addition to conducting surveillance, they conducted what was, at the time, a
lawful dog-sniff at the door on the second floor of the suspected house. They then
sought a search warrant to search the second floor of the house. Because the
police in this case acted in objectively reasonable reliance on binding appellate
precedent, the Davis good-faith exception should have applied. At every step of
1
Moreover, unlike here, Davis did not apply to Florida v. Jardines because binding appellate
precedent in Florida, and as ultimately decided by the Supreme Court of Florida in
Jardines v. State, was to suppress the dog-sniff. See Jardines v. State, 73 So.3d 34, 38 (Fla.
2011); see also State v. Rabb, 920 So.3d 1175 (Fla. 4th DCA 2006) (canine sniff from outside a
home to detect narcotics inside the home uses extra-sensory procedure that violates the
firm line at the door of the home protected from intrusion by the Fourth Amendment).
14
the way, the police followed the law as they understood it at the time.
Suppressing the evidence here would have no effect in discouraging police
misconduct; if the appellate courts of this State failed to foresee the holding in
Jardines, the police cannot be faulted for following the law as it was given to them.
The dissent of four justices in Jardines indicates the police could not have known
that the search would be deemed illegal. Therefore, the good-faith exception to
the exclusionary rule protects the search from retroactive invalidation under
Jardines. To find otherwise, would mean that the operation of the good-faith
exclusionary rule would not serve its remedial purpose.
Furthermore, Article 38.23(a) bars the admission of illegally-obtained
evidence. The State, however, was not seeking to introduce the results of the
warrantless dog-sniff, it was seeking to introduce the items discovered inside the
house pursuant to a legally issued warrant. Though it is generally the case that
illegally-obtained evidence cannot provide the probable cause for a warrant, the
State believes that the convergence of the state and federal good-faith exceptions
allows it in this case. The Texas good-faith exception, by its terms, does not bar
the consideration of illegally obtained evidence in the probable cause analysis; that
15
is a judicial construct, and like all judicial constructs it can be modified as policy
demands. 2
The First Court of Appeals erred in excluding the dog-sniff because it was
conducted pursuant to established precedent at the time the warrant was issued.
The State’s second ground for review should be granted.
♦
2
See e.g., Taylor v. State, 419 S.W.3d 520 (Tex. App. —Amarillo 2013, no pet.) (at the time a
GPS unit was placed on car, it was not considered a search that required probable cause;
thus, the evidence seized pursuant to use of the GPS unit would not be subject to the
exclusionary rule because “the officers acted in reasonable reliance on federal precedent
in the majority of the federal circuit courts of appeal, including the Fifth Circuit”), but see
State v. Jackson, 435 S.W.3d 819 (Tex. App. —Eastland 2014), rev’d on other ground, 464
S.W.3d 724 (Tex. Crim. App. 2015) (also argued that the placement of a GPS unit on his
car prior to Jones was now an illegal search and tainted the evidence obtained as the
result of its use; the court of appeals held that “an officer’s good faith reliance on the law
or existing precedent is not recognized as an exception to the Texas exclusionary rule;”
finding Article 38.23(b) does not state the exclusionary rule applies to “an officer’s good
faith reliance on the law or existing precedent.”).
16
PRAYER
The State respectfully requests this Court grant the State’s petition for
discretionary review and reverse the appellate court’s suppression of the evidence
obtained via a valid search warrant supported by evidence admissible under
binding appellate authority when it was issued.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin Suite 600
Houston, Texas 77002
(713) 755-5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
17
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
This is to certify: (a) that the word count of the computer program used to
prepare this document reports that there are 3985 words in the document; and (b)
that the undersigned attorney requested that a copy of this document be served to
appellant’s attorney, and the State Prosecuting Attorney, via TexFile at the
following emails on December 18, 2015:
Norman J. Silverman
Attorney for Appellant
Email: lawyernorm@msn.com
Lisa C. McMinn
State Prosecuting Attorney
Email: Lisa.McMinn@SPA.texas.gov
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
18
APPENDIX A
Opinion issued November 5, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00572-CR
———————————
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
OPINION ON REMAND
This case was remanded to us by the Court of Criminal Appeals. McClintock
v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014). That Court affirmed our initial
analysis and remanded to address in the first instance an issue first raised in the
State’s petition for discretionary review. On remand, we must determine whether,
under the facts of this case, an officer’s good-faith reliance on binding appellate
precedent operates as an exception to both the federal exclusionary rule and Texas
exclusionary statute. See id. at 20–21.
We conclude that the judge-made Davis exception to the judge-made federal
exclusionary rule does not create an exception to the Texas exclusionary rule
adopted by the Texas Legislature. Because the search warrant in this case was not
based on probable cause, the Texas rule requires that the illegally obtained
evidence be suppressed, and a new trial is required.
Background
Appellant Bradley McClintock appealed his conviction for possession of
marijuana, arguing that evidence seized from his apartment pursuant to a search
warrant should have been suppressed. In the supporting affidavit used to procure
the warrant, Department of Public Safety Officer R. Arthur stated the following:
Affiant received information that marijuana was being grown inside
the 2nd floor residence located at 412 West Clay, Houston, Harris
County, Texas. Affiant went to this location and found it to be located
in Harris County, Texas. . . . Affiant and other peace officers with the
Texas Department of Public Safety set up surveillance on this
location. During surveillance of this location over the last week of the
making of this affidavit, affiant observed the following: the
downstairs of this location appears to be a business, there is an open to
the public stairway that leads to the upstairs. . . . This stairway is open
to the public in that it could easily be where a delivery person could or
would make deliveries to the upstairs residence area. Affiant has
observed a male individual come and go from this location, at hours
well before and after the business hours of the business on the first
2
floor. Based on training and experience, Affiant found this to be
consistent with possible narcotics activity.
On September 29, 2010, Affiant approached this location. At this
time, from the outside of this location, Affiant could smell, what
Affiant knows from training and experience to be, marijuana. On this
same date at approximately 11:30 pm, Affiant requested the assistance
of a narcotics canine at this location. Affiant spoke with and obtained
the assistance of Houston Police Department Canine Officer Kristin
Uhlin and her canine partner “Sita”. Officer Uhlin stated that she and
“Sita” are currently certified by the National Narcotics Detector Dog
Association, # 48761, for the detection of the odors of marijuana,
cocaine and methamphetamine. Affiant observed Officer Uhlin and
“Sita” to deploy up to the second floor doorway using the open to the
public stairway described above. Officer Uhlin stated to Affiant that at
the doorway leading into the second floor of this location, “Sita” gave
a positive alert at this location indicating the presence of one or more
of the above named controlled substance.
On the basis of the Supreme Court’s decision in Florida v. Jardines, 133 S. Ct.
1409 (2013), issued while the appeal was originally pending in this court, we held
that the warrantless dog sniff conducted at McClintock’s back door was unlawful.
McClintock, 405 S.W.3d at 283–84. Setting aside that information, we concluded
that the remainder of the affidavit was insufficient to establish probable cause
necessary for a warrant. Id. at 284–88. We accordingly reversed the denial of
McClintock’s motion to suppress and remanded for a new trial. Id. at 288–89.
The State petitioned the Court of Criminal Appeals for review of our
decision. In its first ground for review, the State asserted that Officer Arthur
conducted the dog sniff in good-faith reliance on previously binding appellate
precedent that held that a canine drug sniff did not constitute a “search” for Fourth
3
Amendment purposes. McClintock, 444 S.W.3d at 18. Relying on the Supreme
Court’s decision in Davis v. United States, 131 S. Ct. 2419 (2011), the State argued
for the first time that pursuant to a good-faith exception to the exclusionary rule,
the dog-sniff evidence should not be excluded. In its second ground for review the
State argued, alternatively, that this court erred in its determination that the
remainder of the affidavit could not furnish the probable cause necessary to
support a search warrant. McClintock, 444 S.W.3d at 18.
The Court of Criminal Appeals granted the State’s petition and considered
both grounds for review. In a published opinion, the Court agreed with our
determination that the remainder of the warrant affidavit did not clearly establish
probable cause. McClintock, 444 S.W.3d at 19–20. Nevertheless, the Court vacated
our judgment and remanded the case for consideration of the State’s new argument
regarding a good-faith exception to the federal and Texas exclusionary rules. Id. at
20–21. The Court observed that “the issue of the proper application of the
exclusionary rule to the facts of this case is not remotely clear cut,” and that, if its
resolution of the issue is eventually needed, it “would benefit from a carefully
wrought decision from the court of appeals.” Id.
Analysis
The question presented at this stage of the appeal is whether an exception
applied by federal courts to the exclusionary rule, established in Davis v. United
4
States, also should apply in this case to permit reliance on illegally obtained drug
evidence. This question requires us to interpret and apply the Texas exclusionary
statute, Code of Criminal Procedure Article 38.23. Before turning to the parties’
arguments about whether the exception applies in this case, we first review the
scope of the exception established in Davis.
I. Davis v. United States
In Davis, the police arrested petitioner Willie Davis for giving a false name
during a routine traffic stop. Davis, 131 S. Ct. at 2425. After the officers had
handcuffed Davis and secured the scene, they searched his vehicle and found a
gun. Id. As a result, Davis was indicted on charges of being a felon in possession
of a firearm. Id. at 2425–26. The officers had conducted the search of the vehicle
in reliance on the Eleventh Circuit’s interpretation of New York v. Belton, 453 U.S.
454, 101 S. Ct. 2860 (1981). Davis, 131 S. Ct. at 2425–26. Davis acknowledged
that then-existing precedent in the Eleventh Circuit allowed for the search of his
vehicle, but he still preserved the issue and appealed. Id. at 2426.
As Davis’s appeal was pending, the Supreme Court decided Arizona v. Gant,
556 U.S. 332, 129 S. Ct. 1710 (2009). The new, two-part rule of Gant held that a
warrantless automobile search incident to arrest is constitutional only when (1) the
arrestee is within reaching distance of the vehicle during the search, or (2) the
police have reason to believe that the vehicle contains evidence relevant to the
5
crime of arrest. Id. at 332, 129 S. Ct. at 1712. Applying the new rule from Gant,
the Eleventh Circuit concluded that the vehicle search incident to Davis’s arrest
was unconstitutional. See Davis, 131 S. Ct. at 2426. Nevertheless, the Eleventh
Circuit declined to apply the exclusionary rule to the illegally obtained evidence
based upon the officers’ good-faith reliance on judicial precedent. See id.
The Supreme Court granted certiorari and considered “whether to apply the
exclusionary rule when the police conduct a search in objectively reasonable
reliance on binding judicial precedent.” Id. at 2428. The Court acknowledged that
Gant applied retroactively to the case and that the search was unlawful, despite the
fact that the officers’ conduct was not culpable. Id. at 2428, 2431. Rather than
viewing the issue as one of retroactivity, the Court based its analysis on the “good
faith” test it established in United States v. Leon, 468 U.S. 897 (1984). Davis, 131
S. Ct. at 2427–28.
The Court recognized that exclusion of evidence “exacts a heavy toll on both
the judicial system and society at large,” but stated that the rule should nonetheless
be applied as a “last resort.” Id. at 2427. The “sole purpose” of the rule is to “deter
future Fourth Amendment violations.” Id. at 2426. Accordingly, exclusion is
appropriate only when its “deterrence benefits” outweigh its “heavy costs.” Id. at
2427. These circumstances exist when the police exhibit “deliberate, reckless, or
grossly negligent disregard for Fourth Amendment rights.” Id.
6
Applying the deterrence principles to the facts of the case, the Court
concluded that exclusion of evidence obtained in reliance on binding judicial
precedent would not be appropriate:
About all that exclusion would deter in this case is
conscientious police work. Responsible law-enforcement officers will
take care to learn what is required of them under Fourth Amendment
precedent and will conform their conduct to these rules. But by the
same token, when binding appellate precedent specifically authorizes
a particular police practice, well-trained officers will and should use
that tool to fulfill their crime-detection and public-safety
responsibilities. An officer who conducts a search in reliance on
binding appellate precedent does no more than act as a reasonable
officer would and should act under the circumstances. The deterrent
effect of exclusion in such a case can only be to discourage the officer
from doing his duty.
That is not the kind of deterrence the exclusionary rule seeks to
foster. We have stated before, and we reaffirm today, that the harsh
sanction of exclusion should not be applied to deter objectively
reasonable law enforcement activity.
Id. at 2429 (quotations omitted). Thus the Court established a new exception to the
federal exclusionary rule: “Evidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to the exclusionary rule.”
Id.
The State argues at the outset that the Davis exception should apply in this
case because Officer Arthur acted in objectively reasonable good-faith reliance on
pre-Jardines precedent when he conducted the unlawful dog-sniff search. In
response, McClintock contends that we cannot apply the Davis exception to this
7
case without first affording him a chance to develop a factual record regarding the
issue of good faith. See State v. Esparza, 413 S.W.3d 81, 89 (Tex. Crim. App.
2013) (refusing to uphold trial court’s ruling under an alternative theory of law
applicable to the case when the appellant did not have the opportunity to develop a
factual record on that issue). He also responds that no precedent in the relevant
jurisdiction specifically authorized the search, which he contends is a necessary
condition to applying the Davis exception.* See Davis, 131 S. Ct. at 2429; see also
*
Numerous federal courts of appeals have addressed how explicit or
settled the appellate precedent must be to trigger the Davis exception. A
panel of the Third Circuit adopted a strict rule, holding that the precedent
must be from within the Circuit and specific to the facts at hand. United
States v. Katzin, 732 F.3d 187, 210 (3d Cir. 2013). That panel’s decision
was vacated, however, and after rehearing the appeal en banc the court
rejected such a narrow reading of Davis:
Stated as a syllogism, if binding appellate precedent specifically
authorizes the precise conduct under consideration, then it will likely
be binding appellate precedent upon which police can reasonably rely
under Davis. However, this does not make the reverse syllogism true,
namely, that if a case is binding appellate precedent under Davis, then
it must specifically authorize the precise conduct under consideration.
Davis’ holding is broader: “[e]vidence obtained during a search
conducted in reasonable reliance on binding precedent is not subject
to the exclusionary rule.”
United States v. Katzin, 769 F.3d 163, 176 (3d Cir. 2014) (en banc), cert.
denied, 135 S. Ct. 1448 (2015). Other courts have also rejected the
contention that “binding appellate precedent” requires precedent within
the Circuit and specific to the facts at hand, instead focusing on whether
reliance on a body of law is objectively reasonable. See United States v.
Brown, 744 F.3d 474, 478 (7th Cir. 2014); United States v. Stephens, 764
F.3d 327, 337 (4th Cir. 2014), cert. denied, 83 U.S.L.W. 3860 (U.S. Oct.
8
id. at 2435 (“This case does not present the . . . question [of] whether the
exclusionary rule applies when the law governing the constitutionality of a
particular search is unsettled.”) (Sotomayor, J., concurring in the judgment).
But we 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. If good-faith reliance
on binding appellate precedent is not a valid exception to the Texas exclusionary
statute, then we must remand this cause to the trial court for a new trial without the
evidence that should have been suppressed.
II. Application of the Texas exclusionary statute
Both the U.S. and Texas constitutions protect against unreasonable searches
and seizures. The Fourth Amendment to the United States Constitution protects the
“right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. CONST. amend. IV. Similarly,
the Texas Constitution ensures that people “shall be secure in their persons,
houses, papers and possessions, from all unreasonable seizures or searches.” TEX.
CONST. art. I, § 9. Neither constitutional provision prescribes a remedy to be
5, 2015); United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013).
Nevertheless, precise rules about when reliance on appellate precedent is
objectively reasonable are difficult to ascertain. See Brown, 744 F.3d at
478 (“There is legitimate debate about whether precedent from Circuit A
could be deemed ‘binding’ (for the purpose of Davis) when the search
occurs in Circuit B, where the issue remains unresolved.”).
9
applied when a person’s rights under the provision are violated. See Davis, 131 S.
Ct. at 2426 (“The [Fourth Amendment] says nothing about suppressing evidence
obtained in violation of this command.”); Perez v. State, 11 S.W.3d 218, 223 (Tex.
Crim. App. 2000) (“Whether a violation of [Article 1, Section 9] (e.g. an
unreasonable search) results in the suppression of evidence obtained as a result of
that violation (i.e. employment of an exclusionary rule) is a separate, collateral
issue not encompassed by the right granted in that constitutional provision.”)
(Keller, J., concurring in the judgment); see also Welchek v. State, 247 S.W. 524,
528–29 (Tex. Crim. App. 1922).
Federal courts enforce a judge-made exclusionary rule to “compel respect
for the constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217, 80 S.
Ct. 1437, 1444 (1960). The federal rule harbors several exceptions for police
conduct that was conducted in reasonable reliance on a facially valid source of
legal justification. See Davis, 131 S. Ct. at 2428–29 (reliance on subsequently
invalidated binding appellate precedent); Illinois v. Krull, 480 U.S. 340, 350, 107
S. Ct. 1160, 1167 (1987) (reliance on a subsequently invalidated statute); United
States v. Leon, 468 U.S. at 922–24, 104 S. Ct. at 3420–21 (reliance on
subsequently invalidated warrant).
In Texas, however, the exclusionary rule is not merely a judicial creation. It
was enacted by the Legislature. See TEX. CODE CRIM. PROC art. 38.23; Miles v.
10
State, 241 S.W.3d 28, 33–36 (Tex. Crim. App. 2007) (explaining the history of
Article 38.23 and its precursors). The Texas exclusionary statute is “broader than
its federal counterpart” and is therefore more broadly protective of individual
rights. See Miles, 241 S.W.3d at 34.
The federal constitution does not “limit the authority of the State to exercise
its police power or its sovereign right to adopt in its own Constitution individual
liberties more expansive than those conferred by the Federal Constitution.”
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, S. Ct. 2035, 2040 (1980).
Both the Court of Criminal Appeals and the Supreme Court of Texas have
observed that “[t]he federal constitution sets the floor for individual rights; state
constitutions establish the ceiling.” Heitman v. State, 815 S.W.2d 681, 690 (Tex.
Crim. App. 1991) (quoting LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)).
Texas courts thus repeatedly have refused “to blindly follow the Supreme
Court’s decisions interpreting the Fourth Amendment” and instead have conducted
their own examination of the Texas Constitution and associated statutes. Id.; see
also Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim. App. 1998). Such
analyses do not fall afoul of the Supremacy Clause, as they do not lead to holdings
about an individual’s rights under federal law. Hulit, 982 S.W.2d at 437. Overall,
“[t]he Supremacy Clause means that, in practical terms, persons will always be
11
able to avail themselves of the greater right.” Id. Here, the statutory rights provided
by Article 38.23 are greater than those provided by the federal exclusionary rule.
In relevant part, Article 38.23 provides:
(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. art. 38.23.
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. Compare
Wehrenberg v. State, 416 S.W.3d 458, 468 (Tex. Crim. App. 2013) (recognizing
independent-source doctrine as an exception, consistent with the statute), with
State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (refusing to
recognize inevitable-discovery doctrine, because it is inconsistent with the statute).
This is in accordance with the general rule that “where an express exception exists
in a statute, the statute must apply in all cases not excepted.” Garcia v. State, 829
S.W.2d 796, 800 (Tex. Crim. App. 1992).
12
The Court of Criminal Appeals has held that Article 38.23(a)’s use of the
term “obtained” calls for the exclusion of evidence only when there is a “causal
connection” between the illegal conduct and the acquisition of the evidence.
Wehrenberg, 416 S.W.3d at 468. Consequently, doctrines that exempt evidence
from exclusion are consistent with the statute only when they do not involve such a
causal connection. See id. at 469–70; Johnson v. State, 871 S.W.2d 744, 750 (Tex.
Crim. App. 1994). When a causal connection between the illegal conduct and the
acquisition of evidence is present, the evidence has been “obtained” in violation of
the law, and the evidence must be excluded under Article 38.23 regardless of any
exception applied under federal law. See Daugherty, 931 S.W.2d at 271; accord
Howard v. State, 617 S.W.2d 191, 193 (Tex. Crim. App. 1979) (op. on reh’g)
(declining to adopt exception for good-faith reliance on a subsequently invalid
statute).
The Davis exception assumes a causal connection and thus cannot be applied
under Article 38.23(a). The Davis doctrine involves illegal police conduct that
directly causes the acquisition of the evidence. See Davis, 131 S. Ct. at 2430–32
(clarifying that the Court’s retroactivity jurisprudence established that police in
that case acquired evidence through unlawful means). Good-faith reliance on
binding precedent is not a doctrine that eliminates the causal connection between
the illegal activity and the acquisition of the evidence. Rather, it treats that
13
connection as a given. The exception is thus inconsistent with Article 38.23’s text.
See Daugherty, 931 S.W.2d at 270 (once “the illegality and its causal connection to
the evidence have been established, the evidence must be excluded” under Article
38.23).
Rather than arguing that the Davis exception for good-faith reliance on
appellate precedent is consistent with the text of Article 38.23(a), the State argues
that the marijuana evidence seized from McClintock’s home should be exempted
from exclusion under Article 38.23(b). Subsection (b) provides an exception to
subsection (a) for evidence obtained by an officer “acting in objective good faith
reliance upon a warrant issued by a neutral magistrate based upon probable cause.”
TEX. CODE CRIM. PROC. art. 38.23(b). The State asserts that the Davis exception
applies in this case to save the dog-sniff evidence from being excluded from the
magistrate’s probable-cause determination.
The State concedes that, according to binding precedent, a “search warrant
may not be procured lawfully by the use of illegally obtained information.” State v.
Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015) (quoting Brown v.
State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980), overruled on other grounds
by Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989)). Ordinarily, when a
search warrant is issued on the basis of an affidavit containing illegally obtained
information, as it was in this case, the evidence seized pursuant to the warrant is
14
admissible only if the independently and lawfully acquired information in the
affidavit clearly established probable cause. McClintock, 444 S.W.3d at 19;
Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). The warrant in this case did not contain sufficient lawfully acquired
information to clearly establish probable cause without the dog-sniff evidence.
McClintock, 444 S.W.3d at 19–20.
The State argues that because Officer Arthur acted in good-faith reliance on
pre-Jardines precedent when he conducted the dog-sniff search, the dog-sniff
evidence should be acceptable to support the magistrate’s probable-cause
determination. This would allow the warrant the officers relied on to seize the
marijuana evidence in this case to be a “warrant issued by a neutral magistrate
based on probable cause,” and therefore render the marijuana evidence admissible
under the statutory exception. TEX. CODE CRIM. PROC. art. 38.23(b). The State
contends that the bar against consideration of illegally obtained evidence in the
probable cause determination for a warrant is a “judicial construct,” not rooted in
Article 38.23’s text, which can be modified “as policy demands.”
We are not persuaded by the State’s argument that policy considerations
justify disregarding Article 38.23(b) and applying the Davis exception to cure a
flawed probable-cause determination. The State ignores the fact that it seeks an
exception to a statutory remedy governed by Article 38.23. The Court of Criminal
15
Appeals has expressly held that the decision to implement such an exception must
be rooted in an analysis of the text of Article 38.23. When considering whether the
“inevitable discovery” doctrine could exempt evidence from exclusion in Texas,
the Court explained:
The whole issue here is whether for purposes of interpreting
Article 38.23(a), we agree that “inevitable discovery” really does
break the causal connection between the illegality and the evidence.
That depends, of course, upon what Article 38.23(a) means when it
says “evidence obtained in violation of” law. And this is purely a
question of statutory construction. Not even the Supreme Court would
presume to instruct us on how our own statutes should be construed.
Were we implementing a court-made rule we would of course be free
to follow the lead of the United States Supreme Court. However,
because this is a statute enacted by the Texas Legislature, we are
required to interpret the language of the statute in order to implement
the legislative intent in enacting it.
Daugherty, 931 S.W.2d at 271. We, too, anchor our analysis to the text of
Article 38.23, not our own evaluation of the wisdom of its policy.
Here, the State asks us to broaden the exception of Article 38.23(b) in a
manner not supported by its text. It is true, as the State argues, that the text of
Article 38.23(b) does not expressly forbid the consideration of illegally obtained
evidence when considering whether the magistrate’s warrant was based on
probable cause. But nothing in subsection (b) expressly supports the State’s
expansive reading either, and “[w]here a statute contains an express exception, its
terms must apply in all cases not excepted.” Daugherty, 931 S.W.2d at 270. Thus,
16
subsection (a) must apply to suppress all evidence not expressly excepted by
subsection (b).
The Court of Criminal Appeals has held that the phrase “based on probable
cause” in Article 38.23(b) requires an independent finding of probable cause; an
officer’s good-faith reliance on a warrant subsequently invalidated for lack of
probable cause does not fulfill the statutory exception. See Curry v. State, 808
S.W.2d 481, 482 (Tex. Crim. App. 1991). The exception in subsection (b) has only
been satisfied in cases involving technical defects in warrants, not warrants with
defects concerning probable cause. See, e.g., Dunn v. State, 951 S.W.2d 478, 479
(Tex. Crim. App. 1997) (concluding that exception applied in case where warrant
lacked magistrate’s signature); Brent v. State, 916 S.W.2d 34, 38 (Tex. App.—
Houston [1st Dist.] 1995, pet. ref’d) (holding that exception applied despite
warrant based on unsigned affidavit). Furthermore, as recognized above, illegally
obtained evidence cannot provide the probable cause necessary to support a
warrant. Le, 463 S.W.3d at 877.
The State suggests that Davis provides a reason to deviate from these past
decisions. But the Court of Criminal Appeals already has recognized that its
interpretation of Article 38.23(b) stands in contrast to the federal good-faith
exception, established in United States v. Leon, for officers relying on a
subsequently invalidated warrant. See Curry, 808 S.W.2d at 482 (“[Article
17
38.23(b)] requires a finding of probable cause, while the exception enunciated in
Leon appears more flexible in allowing a good faith exception if the officer’s belief
in probable cause is reasonable.”).
The State’s proposed application of the Davis exception essentially mirrors
past attempts to use Leon, which the Court of Criminal Appeals already has held
does not satisfy the text of Article 38.23(b). Tellingly, the Supreme Court itself
recognized that its decision in Davis was merely an extension of the good-faith
exception established in Leon. See Davis, 131 S. Ct. at 2428–29 (“Under our
exclusionary rule precedents, [the] acknowledged absence of police culpability
dooms Davis’s claim. . . . Indeed, in 27 years under Leon’s good-faith exception,
we have ‘never applied’ the exclusionary rule to suppress evidence obtained as a
result of nonculpable, innocent police conduct.”). We do not perceive any
difference between the arguments previously rejected by the Court of Criminal
Appeals and the State’s proposed application of Davis.
We reject the State’s proposed application of the Davis exception to allow
consideration of illegally obtained evidence in the magistrate’s probable cause
analysis for a warrant. As the Court of Criminal Appeals affirmed, the dog-sniff
search was unlawful. Binding precedent holds that illegally obtained evidence
cannot provide probable cause to support a warrant. Based on past interpretation of
Article 38.23, we conclude that the good-faith exception established in Davis does
18
not apply to allow the State to use the illegal dog-sniff evidence to support the
warrant. As a result, the warrant used to seize the marijuana evidence from
McClintock’s residence was “not based on probable cause,” and the marijuana
evidence does not satisfy Article 38.23(b). Accordingly, the Texas exclusionary
statute applies and the marijuana evidence must be suppressed. See TEX. CODE
CRIM. PROC. art. 38.23(a).
Conclusion
We overrule the State’s sole issue. We remand the case to the trial court for
a new trial without the evidence that should have been suppressed.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown
Justice Keyes, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
19
APPENDIX B
Opinion issued November 5, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00572-CR
———————————
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.
6
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.
11
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
18
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.
19
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
21
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
22
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
23
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.
24
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).
25