IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1641-15
BRADLEY RAY McCLINTOCK, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
A LCALA, J., filed a dissenting opinion.
DISSENTING OPINION
Because rules of statutory construction require this Court to apply a statute in
accordance with its plain language, I would affirm the court of appeals’s holding that the
evidence obtained against Bradley Ray McClintock, appellant, must be suppressed under
Article 38.23 of the Texas Code of Criminal Procedure. See T EX. C ODE C RIM. P ROC. art.
38.23. I agree with the court of appeals’s determination that, under the plain language of
the statute, the general rule in Article 38.23(a) requires the exclusion of the evidence because
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the Texas good faith exception in Article 38.23(b) does not apply to this case. See id.;
McClintock v. State, 480 S.W.3d 734, 743-44 (Tex. App.—Houston [1st Dist.] 2015). Under
its plain language, the exception in Article 38.23(b) applies when the warrant was issued by
a neutral magistrate “based on probable cause.” See T EX. C ODE C RIM. P ROC. art. 38.23(b).
This Court has already held that there was no probable cause to support the search warrant
that was issued in this case. McClintock v. State, 444 S.W.3d 15, 19-20 (Tex. Crim. App.
2014). Given that the plain language in Article 38.23(b) requires the existence of probable
cause for the exception in that portion of the statute to apply, and given this Court’s former
determination that this search warrant was issued in the absence of any probable cause under
a correct application of the law, I would apply the general rule in Article 38.23(a) and hold
that the evidence must be suppressed. See T EX. C ODE C RIM. P ROC. art. 38.23. For this
reason, I disagree with this Court’s decision to uphold the search in this case under the
rationale that, even though the warrant was issued in the absence of probable cause under a
correct view of the law, the search may be upheld under the good faith exception in Article
38.23(b) when the magistrate’s mistaken view of the law of probable cause was reasonable
under the then-accepted but incorrect articulation of the applicable law. I disagree with this
Court’s nuanced reading of Article 38.23(b) that is inconsistent with the statute’s plain
language that expressly requires a warrant “based on probable cause.” It is inappropriate to
consider extra-textual sources to evaluate the meaning of the plain language in a statute that
is not ambiguous. Because the good faith exception in Article 38.23(b) does not apply to this
McClintock - 3
case under the statute’s plain language requirement of a warrant based on probable cause, I
would apply the general rule in Article 38.23(a) that requires the exclusion of the evidence.
See T EX. C ODE C RIM. P ROC. art. 38.23. I, therefore, respectfully dissent.
I. Analysis
Under the rules of statutory construction, this Court must apply the plain language of
a statute as it is written, and we may not consider extra-textual sources to interpret the statute
unless its meaning is ambiguous or its plain language would lead to absurd results. Boykin
v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991). It is necessary, therefore, to begin
with the actual language in Article 38.23, which states,
(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 upon
probable cause.
T EX. C ODE C RIM. P ROC. art. 38.23.
The exception in Subsection (b) of Article 38.23 plainly requires that the evidence was
obtained pursuant to “a warrant issued by a neutral magistrate based on probable cause.” See
id. Unless such a warrant exists, then the good faith exception is inapplicable under a plain
reading of the statute. See id.; State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App.
1996) (“[W]here a statute contains an express exception, its terms must apply in all cases not
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excepted.”). Here, this Court has already held that there was no probable cause in this case
under a correct application of the law in existence at the time of the search. McClintock, 444
S.W.3d at 19-20. In the absence of a warrant based on probable cause, the plain language
of the statute precludes any consideration of whether the officer acted in good faith reliance
on the warrant.
That the application of Article 38.23(b) requires a valid warrant based on probable
cause is well established under longstanding precedent in this Court. See Curry v. State, 808
S.W.2d 481, 482 (Tex. Crim. App. 1991) (“The plain wording of Art. 38.23(b) requires an
initial determination of probable cause.”). Because an initial determination of probable cause
is necessary, the good faith exception in Subsection (b) has been satisfied only in cases
involving technical defects in warrants, not warrants issued in the absence of valid probable
cause under a correct application of the law. See, e.g., Dunn v. State, 951 S.W.2d 478, 479
(Tex. Crim. App. 1997).
Because the statutory language plainly and rationally requires a warrant “based on
probable cause,” it is inappropriate to consider extra-textual sources to change the meaning
of the statute. See Boykin, 818 S.W.2d at 785-86. This Court’s majority opinion discusses
federal law for purposes of examining whether the good faith exception should apply under
these circumstances. Reference to extra-textual sources, however, is improper because this
statute is not ambiguous and applying its plain language would not lead to absurd results.
Disallowing the results of searches of people’s homes when there is no probable cause to
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support the search is not an absurd result, and, rather, it is the best way to ensure that people
feel secure in their homes. See T EX. C ONST. Art. I, § 9. Regardless of whether this search
might be upheld under federal law, the issue before this Court is one of state statutory
interpretation and the plain meaning of the statute’s text, and, thus, it is inappropriate to rely
on those federal sources in this case.
The majority opinion suggests that, if there was probable cause under the law as it
existed when the magistrate issued the warrant, then that triggers the consideration of the
good faith exception in Article 38.23(b). But that interpretation of the statute does violence
to its plain language that requires that it be “based on probable cause” under the correct
application of the law. If, as the majority opinion suggests, some incorrect former view of
probable cause will suffice to meet the statutory requirement of a warrant based on probable
cause, then all of this Court’s precedent, as described above, that has stated otherwise must
be abandoned. This Court’s new interpretation of this statute will mean that, when a
magistrate and search warrant affiant believe that the warrant is being issued based upon
probable cause under the existing law, but they are reasonably wrong about the existing law
due to this Court’s mistaken statements about the law, then the evidence need not be
suppressed. This is a novel interpretation of Article 38.23 that is inconsistent with all of this
Court’s former descriptions of the plain language of this statute. I conclude that this
interpretation stretches the statute far beyond its plain language that requires a warrant “based
on probable cause.” Because the warrant in this case was issued in the absence of valid
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probable cause, Article 38.23(b) is inapplicable, and the results of the search must be
suppressed under the general rule in Article 38.23(a). See T EX. C ODE C RIM. P ROC. art. 38.23.
II. Conclusion
I would apply the plain language of this State’s statutory law that requires the
exclusion of the evidence obtained by a search warrant that was issued in the absence of
probable cause. I, therefore, would affirm the judgment of the court of appeals.
Filed: March 22, 2017
PUBLISH