Opinion
No. 08-13-00024-CR
01-27-2016
OSVALDO MIGUEL PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from Criminal District Court No. 1 of El Paso County, Texas (TC # 20120D01211) OPINION
The United States Supreme Court in Florida v. Jardines, ___U.S.___,133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) held that a narcotic-dog sniff conducted on the front porch of a private residence constituted a search for Fourth Amendment purposes. This appeal returns to us from the Texas Court of Criminal Appeals for our consideration of whether Florida v. Jardines affects the outcome of this case. Bound up in that inquiry are issues of error preservation, whether Jardines negates a portion of a search warrant affidavit, and if so, whether the residual portions of the affidavit support the issuance of the search warrant, as well as whether a good faith exception to the exclusionary rule might apply.
We conclude that the trial court was aware of and considered the Jardines issue; therefore the issue was not forfeited. The holding in Jardines negates an essential part of the search warrant affidavit in this case, and without the canine search, there is no probable cause to uphold the warrant. Finally, for the reasons noted below, we decline to engraft the particular good faith exception urged by the State onto TEX.CODE CRIM.PROC.ANN. art. 38.23 (West 2005). Accordingly, we reverse the trial court's denial of the motion to suppress and the conviction below, and remand the case.
FACTUAL SUMMARY
Appellant was charged with possession of cocaine, unlawful possession of a firearm by a felon, and unlawful possession of body armor by a felon. The charges arose from the seizure of those items following a search of Appellant's home. The search was conducted pursuant to a magistrate issued search warrant, which in turn was based on a police officer's affidavit. The parties all agreed below that the police officer made a false statement in the affidavit. After excising the false statement, the substance of the affidavit includes only a bare reference to a confidential informant, and the alert by a trained narcotics dog at Appellant's front door. Appellant was unsuccessful in challenging the warrant in a pretrial suppression hearing, and thereafter pled guilty, while reserving his right to appeal the ruling from the suppression hearing.
Our record contains a complaint affidavit which describes various quantities of marijuana that were discovered in the house, but Appellant was indicted for possession of cocaine. This unexplained discrepancy does not affect any of the issues before us.
While the appeal was pending, the United States Supreme Court decided Florida v. Jardines, which holds that the use of a drug sniffing dog at the front door--in the so called curtilage of a house—constitutes a search under the Fourth Amendment. 133 S.Ct. at 1418. Appellant's brief on the merits neither cited the case, nor discussed the constitutionality of the drug dog search. The State's brief cited Jardines, but contended it did not apply because the issue was forfeited. We then issued our opinion which affirmed the trial court's denial of the motion to suppress because even without the officer's false statement, the dog's alert was sufficient to support probable cause for the warrant. Perez v. State, 08-13-00024-CR, 2014 WL 7237732, at *1 (Tex.App.--El Paso Dec. 19, 2014)(not designated for publication). In a motion for rehearing, Appellant raised Jardines related issues for the first time. The motion itself did not discuss Jardines, but cited a case which did. We overruled the motion for rehearing without written opinion. On petition for review to the Texas Court of Criminals Appeals, that court in an unpublished opinion vacated our judgment and returned the case for consideration of the impact, if any, of Jardines. Perez v. State, PD-0231-15, 2015 WL 4040810, at *1 (Tex.Crim.App. July 1, 2015)(not designated for publication).
The State has since filed a supplemental brief which suggests that we have three issues to decide. First, did Appellant properly preserve any error on Jardines grounds? Second, does the judge-made "good faith" mistake of law exception apply here because at the time of the search, Jardines had not been decided and the officers had an objectively reasonable belief that the dog sniff was proper. Third, the State asks us to consider whether the officer's search of the house, supported by the good faith reliance on a search warrant, is itself sufficient even if the warrant is later invalidated. Appellant has not favored us with any additional briefing. We accept the State's outline of the issues, but first detour to discuss whether Jardines applies here, and the importance of the canine search to the search warrant affidavit.
DOES JARDINES APPLY?
Our earlier opinion held that even after excluding the police officer's false statement from the search warrant affidavit, the warrant was still justified based on the canine's alert to the smell of narcotics. Based on Jardines, however, we can no longer rely on that portion of the affidavit.
As in this case, the police in Jardines went to the front door of a single family residence accompanied by a trained drug sniffing dog. 133 S.Ct. at 1413. The dog began to alert as they approached the front porch, and the dog sat, which was its signal for the location of the strongest odor, just at the front door. Id. Based on the alert, the officers obtained a search warrant that led to the discovery of drug contraband inside the house. Id. The controlling issue in Jardines was whether the implied invitation to walk to the front door of a single family residence includes an implied invitation to bring along a drug sniffing dog. Id. at 1416. Based on the "traditional property-based understanding of the Fourth Amendment" the court concluded the implied invitation to come to the front door was not that broad. Id. at 1417. As Justice Scalia explained for the majority:
This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. . . . But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to--well, call the police.Id. at 1416-17.
The front porch is part of the home's curtilage, which is the area "immediately surrounding and associated with the home" and which is considered a "part of the home itself for Fourth Amendment purposes." Id. at 1414, quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The boundaries of the curtilage are "easily understood from our daily experience." Id., quoting Oliver, 466 U.S. at 182 n.12, 104 S.Ct. 1735. The "front porch is the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.'" Id. The location of the search made the case straightforward for the court. The officers were "gathering information in an area belonging to Jardines" and in an area enjoying the same protection the home itself. Id. at 1414. Because the officers engaged in a warrantless search in that area, the court affirmed a lower court suppressing evidence gained from the subsequent search of the house.
The warrant here similarly describes a single family residence. Nothing about the description of the house is out of the ordinary. The residence has a car port, a driveway, a designated street address, and a front door. On October 4, 2011, five police officers walked up to the front door in an attempt to make contact with Appellant. One officer was accompanied by a narcotics dog named "Kim" who "was deployed outside the front door." The dog alerted to the odor of narcotics from inside the house. The officers then continued to knock on the front door, but no one answered.
We see no meaningful distinction between the fact of Jardines and those here, nor does the State's briefing suggest Jardines could be distinguished in any way. Moreover, excluding the canine search is fatal to the search warrant affidavit.
A search warrant cannot be issued unless it is based on probable cause as determined from the four corners of a sworn affidavit. U.S. Const. amend. IV; Tex.Const. art. I, § 9; TEX.CODE CRIM.PROC.ANN. art. 18.01(b)(West 2015)("No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance."). We ordinarily give "great deference" to a magistrate's determination of probable cause in issuing a warrant. State v. Cuong Phu Le, 463 S.W.3d 872, 876-78 (Tex.Crim.App. 2015), citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) and Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). That deference evaporates, however, when parts of the affidavit must be stricken of tainted information. McClintock v. State, 444 S.W.3d 15, 19 (Tex.Crim.App. 2014). "When part of a warrant affidavit must be excluded from the calculus, then it is up to the reviewing courts to determine whether 'the independently acquired and lawful information stated in the affidavit nevertheless clearly established probable cause.'" McClintock, 444 S.W.3d at 19, quoting Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App. 1991). A search warrant which is based in part on tainted information might still be valid "if it clearly could have been issued on the basis of the untainted information in the affidavit." Cuong Phu Le, 463 S.W.3d at 876-78.
In reviewing the remaining untainted portions of the affidavit, we do so in a "commonsensical and realistic manner, drawing reasonable inferences from the information." Id., citing Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). We will uphold the probable cause finding if, under the totality of the circumstances, there is fair probability that contraband or evidence of a crime will be found at a specified location. State v. McLain, 337 S.W.3d 268, 272 (Tex.Crim.App. 2011).
The affidavit here advanced three facts supporting probable cause. After describing the property, and reciting the detective's experience and general knowledge of narcotics, the detective states that he "received information from a confidential informant that [Appellant] was trafficking narcotics from the suspected place." No further description or mention of the informant is given. The officer then recounts the facts of Kim's alert at the front door. In another portion of the affidavit supporting a no-knock search, the detective states that he had "purchased small plastic baggies containing marijuana from the suspected place." The State's attorney at the suppression hearing acknowledged that this last claim was incorrect.
Absent the dog's alert, and the prior purchase of narcotics, we are left with only the statement that a confidential informant said appellant was "trafficking narcotics from the suspected place." That bare allegation is simply not enough to support probable cause. The court in Aguilar v. Texas, 378 U.S. 108, 109, n.1, 84 S.Ct. 1509, 1511, n.1, 12 L.Ed.2d 723 (1964) held that an affidavit stating no more than the officer "received reliable information from a credible person" that drugs were kept at a house was insufficient to support probable cause. The Fourth Amendment test used in Aguilar was subsequently modified by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), but the Gates court similarly agreed that standing alone, an anonymous letter claiming there were drugs in a residence would not support a finding of probable cause. Id. at 227. Subsequent case law has focused on the existence of factual statements which support the informant's veracity, reliability, and basis of knowledge. See e.g. Cuong Phu Le, 463 S.W.3d at 878 (tip coming from concerned citizen who was verified as being in good standing in the community); Moreno v. State, 415 S.W.3d 284, 288 (Tex.Crim.App. 2013)(controlled delivery witnessed by police provided verification of confidential informant's tip): Flores v. State, 319 S.W.3d 697, 703 (Tex.Crim.App. 2010) (detailed nature of anonymous tip as described in affidavit, along with verification from discarded trash, verified substantial basis for probable cause); Avery v. State, 545 S.W.2d 803, 804 (Tex.Crim.App. 1977)(credibility of informant established by allegations by past experience with same informant). This affidavit lacks any supporting information about the veracity, reliability, and basis of knowledge of the informant. The bare claim that there was an informant simply cannot support a magistrate's probable cause determination. McClintock, 444 S.W.3d at 17-19 (residual portion of affidavit included an unverified tip which along with ambiguous location of marijuana odor was insufficient to support probable cause); see also United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965)("Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.").
Given that the warrant cannot stand without the help of "Kim's" alert, the State turns to several arguments to keep her on the affidavit.
Preservation of Error
In both its original and supplemental brief, the State contends that any Jardines issue is forfeited. Appellant's motion to suppress generally alleged that the search warrant was illegally issued because the magistrate's probable cause determination failed to meet the totality of the circumstances test from Illinois v. Gates. Absent probable cause, the motion generically claims the evidence seized violated appellant's rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, Article I, Sections 9, 10, and 19 of the Texas Constitution, and TEX.CODE CRIM.PROC.ANN. art. 38.23. The specific arguments advanced in the motion include that the affidavit was: (a) "improperly and illegally executed;" (b) it lacked "sufficient underlying circumstances" showing that contraband was at the house or that the affiant was credible; (c) it did not demonstrate a substantial basis for concluding contraband would be found at the house; (d) the warrant did not particularize the things to be seized; (e) "as a matter of law, the probable cause determination was not objectively reasonable;" and (f) the magistrate was misled by false information. No specific reference to the canine search is raised in the motion.
At the hearing, no mention of the illegality of the canine search was made, at least by Appellant's counsel. Instead, counsel focused on the false statement regarding the drug buy and the absence of any supporting facts about the confidential informant. But the trial judge was acutely aware of Jardines. He in fact knew that oral arguments before the United States Supreme Court in Jardines were taking place that very day:
THE COURT: Well, this case is actually before the Supreme Court today, right? This is basically the same thing?
[DEFENSE COUNSEL]: If you're looking about -- the 2012 case -- are you looking -- are you indicating Jones v. State, Judge, or are you looking at the State of Texas v. Duarte?The suppression hearing was heard on October 31, 2012, and oral arguments in Jardines in fact took place that same day.
THE COURT: I'm talking about the one before the United States Supreme Court and it's supposed to be argued today.
While it appears to us that Appellant's counsel was either unaware of the Jardines case, or overlooked addressing it at the time of the hearing, the trial judge understood the issue. In overruling the motion the judge stated:
Appellant's counsel made reference to a canine search case, but the context suggests it was not Jardines:
[Defense Counsel]: More importantly there is a case law concerning the sniffing of a dog outside -- outside the property. That's all they have is the sniffing of the dog.
THE COURT: So what's the case law in the sniffing of the dog?
[Defense Counsel]: Right here, Judge.
THE COURT: What about the sniffing of the constable [sic] ?
[Defense Counsel]: Sniffing of the what, Judge? It's Steelman, it's a 2002 case.
THE COURT: Well, give it to me.
[Defense Counsel]: Yes, sir. The sniffing of the dog alone itself is not sufficient.
THE COURT: This is not a dog sniffing, this is an officer sniffing case. That's more like a constable sniffing case.
THE COURT: No, that's all right. I'm going to go ahead and overrule the motion to suppress on the affidavit. This affidavit does have probable cause under the case law the way I understand it at this point in time. Although I understand it could be changing at this -- shortly. But for right now I'm going to overrule the motion to attacking the affidavit.The notice of appeal in this case was filed February 1, 2013. Jardines was decided on March 26, 2013. Appellant's brief on the merits was filed on August 20, 2013, and did not mention Jardines or address the canine search in any respect. Only on motion for rehearing did Appellant suggest the dog's alert was part of an unconstitutional search.
A party must preserve error, even constitutional error, with a proper objection. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012). To do so, the Texas Rules of Appellate Procedure require that the record show that the objection "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX.R.APP. P. 33.1(a)(1)(A). The issue raised on appeal must also comport with the objection made at trial. Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Otherwise, the complaint is forfeited. Clark, 365 S.W.3d at 339.
Here we have the somewhat unusual circumstance that the trial judge clearly appreciated the relevance of Jardines even if defense counsel did not. Case law provides us some guidance in this regard. The court in Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977) was confronted with an imprecise objection to the admission of a prior conviction, but because "the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection." This holding comports with TEX.R.APP. P. 33.1(a)(1)(A) which requires the complaining party to state the grounds of the objection "unless the specific grounds were apparent from the context." Id.
The court revisited forfeiture in Resendez v. State, 306 S.W.3d 308, 313 (Tex.Crim.App. 2009), a case where a litigant argued a constitutional basis for excluding evidence, but failed to mention a stronger statutory ground. The court noted again that "[w]hen the correct ground for exclusion was obvious to the judge and opposing counsel, no forfeiture results from a general or imprecise objection." Id. The court concluded in Resendez that the trial judge was not apprised, nor necessarily aware, that the statutory exclusion was being urged. Id. The court noted several earlier cases, however, where an imprecise objection sufficed when the record clearly showed the trial judge understood the correct objection before the court. Id. at 316, citing Lankston v. State, 827 S.W.2d 907, 910 (Tex.Crim.App. 1992)(while the defendant's counsel did not identify the applicable statutory provision relied on, the trial judge did); Ex parte Little, 887 S.W.2d 62, 66 (Tex.Crim.App. 1994)(the trial court asked for case law on issue of manifest necessity which showed court was aware of the issue). As Resendez concludes: "In these cases, it was appropriate for the appellate court to reach the merits of the argument because it was clear that the trial court had understood the argument and had a chance to rule on it as well." 306 S.W.3d at 316.
More recently in Douds v. State, 472 S.W.3d 670 (Tex.Crim.App. 2015), the court found a DWI litigant forfeited his Fourth Amendment argument challenging a mandatory blood draw. Even though a constitutional challenge to the mandatory blood draw statute was percolating through the appellate courts, Douds trial counsel argued only a statutory theory. Accordingly, Douds would provide seeming support for the proposition that if one asks for the correct thing, but gives the wrong reason, the argument is forfeited. We note, however, that Douds recited several times in the opinion that the purpose for the preservation rule is to give the judge and opposing counsel the chance to consider the objection. Id. at 674 ("The purpose for requiring a timely, specific objection is twofold: (1) it informs the judge of the basis of the objection and affords him an opportunity to rule on it, and (2) it affords opposing counsel an opportunity to respond to the complaint."). As stated in Lankston "all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." 827 S.W.2d at 909.
The context of this record shows the trial judge understood the Jardines issue, and even alerted both sides to the issue at the hearing. The judge based his ruling on the state of existing law, expressly contemplating that Jardines might well change the outcome. Our ultimate role here is to grade the performance of the trial judge, and not the lawyers. Because the trial judge understood and considered the Jardines issue, we decline to find a forfeiture.
The State also points out that the error argued in Appellant's original briefing did not mention the Jardines issue. We have the discretion to entertain an issue raised in a motion for rehearing, and choose to do so here. See Rochelle v. State, 791 S.W.2d 121, 124-25 (Tex.Crim.App. 1990).
Good Faith Exception
The State also contends that the dog's alert should not be excluded because the police officers had an "objectively reasonable" belief that using a narcotics dog at the front door was permissible. We digress briefly to discuss the origin and nature of this good faith exception.
Both the United States and Texas Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 9; State v. Betts, 397 S.W.3d 198, 203 (Tex.Crim.App. 2013). Neither constitutional provision expresses how that right is to be enforced. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Welchek v. State, 247 S.W. 524, 528 (Tex.Crim.App. 1922). The federal courts, however, have created the judge-made exclusionary rule to exclude illegally obtained evidence. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998)(and cases cited therein). In Texas, a statutory basis for excluding evidence is found in Article 38.23(a) of the Code of Criminal Procedure:
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.TEX.CODE CRIM.PROC.ANN. art 38.23(a). The predecessor of Article 38.23 was enacted in 1925 to overturn Welchek v. State, which had declined to create a common law based exclusionary rule in Texas. See Miles v. State, 241 S.W.3d 28, 33-36 (Tex.Crim.App. 2007)(providing historical overview of Article 38.23).
Federal courts have limited the use of the judge-made exclusionary rule to those situations where its underlying purpose is well served. Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426 180 L.Ed.2d 285 (2011). These limitations are meant to strike a balance between incentivizing police fidelity to the law, and the cost of excluding relevant evidence which potentially lets the guilty go free. Id. at 2427. For instance, when a police officer can demonstrate that they made a reasonable mistake of fact, the results of an ensuing improper search will not always be excluded. See Illinois v. Rodriguez, 497 U.S. 177, 183-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)(reasonable mistake as to whether person who gave permission to search house had the authority to do so); Hill v. California, 401 U.S. 797, 802-05, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971)(reasonable mistake of fact as to identity of person being arrested). More recently, the United Supreme Court has addressed good faith mistakes of law in two opinions: Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) and Heien v. North Carolina, ___U.S.___, 135 S.Ct. 530, 539, 190 L.Ed.2d 475 (2014).
From these cases, we discern two distinct threads to the good faith mistake of law exception. Davis addresses a good faith mistake of procedural criminal law and holds that when an officer's conduct is based on "objectively reasonable reliance on binding judicial precedent", and the precedent is later changed, the results of the search need not be excluded under the exclusionary rule. 131 S.Ct. at 2428. Heien deals with an officer's good faith mistake of substantive criminal law, and holds that if an officer makes an "objectively reasonable" mistake as to what is a crime, evidence later developed because of actions taken based on that belief will not be excluded because there was never a Fourth Amendment violation in the first place. 135 S.Ct. at 539. The facts of each case highlight the distinction.
Mr. Davis was arrested following a routine traffic stop. In accordance with controlling precedent from the Eleventh Circuit, which interpreted New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the police could search the passenger compartment of a car and they did so in Davis' case, finding an illegal weapon. Davis, 131 S.Ct. at 2424-25. Davis unsuccessfully moved to exclude the weapon, and then appealed that decision. Id. at 2426. While the case was on appeal, the Supreme Court decided Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) which limited the scope of this kind of search to the area within the reach of the occupant, or to other parts of the vehicle, but only if the police have reason to believe that the vehicle contains evidence relevant to the crime for which the arrest was made. Id. at 332, 129 S.Ct. at 1712.
In deciding whether the evidence should be excluded, the United States Supreme Court acknowledged that Gant should be applied retroactively and that the search was therefore assumed to be unlawful. Davis, 131 S.Ct. at 2428, 2431. Nonetheless, after balancing the interests of police fidelity against the cost of excluding relevant evidence, the court concluded:
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.Id. at 2429 (quotations omitted). The court then 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.
By contrast, Mr. Heien was pulled over by a police officer because only one of his brake lights was working. 135 S.Ct. at 534. The police officer believed this to be a violation of the law, based on a traffic code provision that could reasonably be read to require two working brake lights. A search of Heien's vehicle turned up contraband leading to his arrest on another charge. Id. at 534. As it turned out, however, a North Carolina court ultimately found that only one brake light was required by the statute. Id. at 535. Accordingly, the underlying reason for the stop, which led to the discovery of the incriminating evidence, was incorrect.
When the issue reached the United States Supreme Court, a majority found the officer's "objectively reasonable" but ultimately incorrect view of the traffic code, did not invalidate the search. Id. at 540. The officer needed a "reasonable suspicion" to pull Heien over. Id. at 536. A mistaken understanding of the scope of a legal prohibition met that reasonable suspicion test. Id. at 536. But the mistake must be reasonable. "The Fourth Amendment tolerates only reasonable mistakes, and those mistakes--whether of fact or of law--must be objectively reasonable." [Emphasis in original]. Id. at 539.
And while both Davis and Heien involve mistakes of law, they have one stark distinction. Davis assumes there was a violation of the Fourth Amendment, but precludes a remedy based on the good faith reliance on binding precedent. Heien goes one step further by holding the officer's legal error did not give rise to a Fourth Amendment violation in the first instance:
Heien is correct that in a number of decisions we have looked to the reasonableness of an officer's legal error in the course of considering the appropriate remedy for a constitutional violation, instead of whether there was a violation at all. [citing cases, including Davis]. In those cases, however, we had
already found or assumed a Fourth Amendment violation. An officer's mistaken view that the conduct at issue did not give rise to such a violation--no matter how reasonable--could not change that ultimate conclusion. Any consideration of the reasonableness of an officer's mistake was therefore limited to the separate matter of remedy. Here, by contrast, the mistake of law relates to the antecedent question of whether it was reasonable for an officer to suspect that the defendant's conduct was illegal. If so, there was no violation of the Fourth Amendment in the first place.Id. at 539 (internal citations omitted). Thus when Heien applies, there is not an underlying violation of the Fourth Amendment. This distinction becomes important in light of how Texas courts are grappling with the good faith mistake of law exception and our statutory exclusionary rule.
The Davis good faith exception was directly addressed in McClintock v. State, ___S.W.3d ___, 2015 WL 6851826 (Tex.App.--Houston [1st Dist.] November 5, 2015, pet. filed). McClintock is remarkably similar to the case before us. In both cases, a search warrant affidavit relied in part on a canine's alert. In both cases, the residual portion of the affidavits, absent the dog sniff, were insufficient to support probable cause. Both searches took place before Jardines was decided. The court of appeals in McClintock on first hearing held that the use of a drug sniffing dog at the defendant's front door was a search, and without the result of that search, a later issued search warrant was not based on probable cause. McClintock v. State, 405 S.W.3d 277, 281 (Tex.App.--Houston [1st Dist.] 2013). When McClintock reached the Texas Court of Criminal Appeals, the State argued for a good faith exception. McClintock v. State, 444 S.W.3d 15, 20 (Tex.Crim.App. 2014). The Court of Criminal Appeals remanded the case to the court of appeals for consideration of the good faith exception. Id.
On remand, the majority opinion from the First Court of Appeals concluded that while a good faith exception might govern the judge-made exclusionary rule, the Texas statutory provision in Article 38.23 left the courts no such leeway. McClintock v. State, 2015 WL 6851826, at *5. The exclusionary rule as developed in the federal court system is a judge-made doctrine designed to balance the need for proper police conduct against the cost to society of excluding relevant evidence of improper conduct. Id. at *3. Courts thus have latitude in adjusting that judge made doctrine to make it better represent a fair balance of those competing interests. Id.
The exclusion of evidence in Texas, however, is statutorily mandated and has only one express exception 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)(West 2005). The majority in McClintock reasoned that because the Texas legislature created a specific statutory exception, courts are precluded from "entertain[ing] exceptions to the Texas exclusionary rule that are not consistent with Article 38.23's text." Id. at *5.
Rather, any exception derives from the language of Article 38.23 itself. For instance, Article 38.23(a) excludes evidence "obtained" by an officer in violation of the law. The courts therefore require a "causal connection" between the illegal conduct and the acquisition of the evidence. Id. at *5. By way of example, if the evidence is obtained entirely through some other means, the statute does not apply even if there was some police wrongdoing in the case. See Wehrenberg v. State, 416 S.W.3d 458, 468 (Tex.Crim.App. 2013)(search warrant which was based on affidavit which contained no illegally derived information adequately supported search of home).
The dissent in McClintock argued that the predecessor to Article 38.23 was intended to adopt the federal exclusionary rule, and that it does no violence to the statute to interpret it in light of evolving federal law, so long as there is no conflict between the two. Id. at *11-13. Article 38.23(b) exempts from exclusion any evidence obtained in reliance on a warrant issued by a magistrate "based on probable cause." At the time the evidence was obtained, the dog's alert provided that probable cause and the search at the time was lawful. Id. at *15. Ignoring that probable cause because a later decided opinion invalidates the police's accepted procedure is "circular logic" which cannot support the majority's rationale. Id at *13.
We would not approach this issue on a clean slate. In State v. Munoz, 08-13-00164-CR, 2015 WL 4719559, at *1 (Tex.App.--El Paso July 31, 2015, pet. filed), we rejected the State's claim that the Davis good faith exception saved a warrantless blood draw in a DWI case. The defendant there moved to suppress evidence based on the newly decided case of Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The State urged that McNeely did not apply, but if it did, the officer at the time of the blood draw was relying on the controlling language of the Texas blood draw statute which required taking a blood specimen in certain defined situations. Accordingly, under the Davis good faith exception, the evidence should not be excluded.
While we agreed that an earlier unpublished opinion from this court had applied Davis' good faith exception, we rejected the exception in Munoz for several reasons. First, the earlier case had not addressed Article 38.23. Second, we looked at the question as one of retroactivity, and quoted the court's admonition from Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987) that "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." Third, we relied the reasoning of the Houston Fourteenth Court of Appeals in Douds v. State, which held that the judge made good-faith exception did not apply in Texas. Douds v. State, 434 S.W.3d 842, 861 (Tex.App.--Houston [14th Dist.] 2014), rev'd on other grounds, 472 S.W.3d 670 (Tex.Crim.App. 2015). Rather, Article 38.23 had its own defined good faith exemption, and the warrantless blood draw before us did not meet the exception. We acknowledge here that following our decision in Munoz, the Court of Criminal Appeals reversed Douds because the initial complaint was never preserved, rendering the court of appeals discussion of the good faith exception moot. But we agree with Douds' underlying reasoning as to Article 38.23 that when the Legislature provides a statutory exception, our role is to apply that exception and not create a new one. See State v. Daugherty, 931 S.W.2d 268 (Tex.Crim.App. 1996)(federal inevitable discovery doctrine did not apply to statutory exclusion of improperly obtained evidence).
State v. Elias, No. 08-08-00085-CR, 2012 WL 4392245, at *7 (Tex.App.--El Paso Sept. 26, 2012, pet. ref'd)(not designated for publication).
McClintock and our opinion in Munoz addressed the mistake of law exception developed in Davis. In this appeal, the State urges a good faith exception from Heien, and in fact does not even cite to Davis. We suspect the State does so in part because Heien holds that the reasonable mistake of law at issue there meant the officer's conduct never violated the Fourth Amendment in the first place. 135 S.Ct. at 539. Accepting that logic, Article 38.23 by its plain terms would not apply. A Heien based analysis thus circumvents the Article 38.23 problem that the State faced in both McClintock and Munoz. Relying on Heien also avoids a second problem for the State: Davis is premised on an objectively reasonable reliance on "binding precedent." Davis, 131 S.Ct. at 2429. The State does not cite us to, nor have we found, binding precedent that a dog sniff at the front door of a house is not a search under the Fourth Amendment.
For an El Paso police officer, that binding precedent might include a decision from the United States Supreme Court, the Texas Court of Criminal Appeals, or this court. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)(courts obliged to follow only higher Texas courts and the United States Supreme Court). Prior to Jardines, the United States Supreme Court had decided drug dog sniff cases involving searches of automobiles, searches at the border, and searches of luggage at an airport. Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)(dog sniff of a car during a traffic stop); Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)(dog sniff at drug interdiction checkpoint); United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)(dog sniff of a traveler's luggage in the airport). Jardines did not explicitly overrule any of these cases--they all dealt with different circumstances. Id. at 1417.
We do not include the Fifth Circuit Court of Appeals in that list. Villarreal v. State, 267 S.W.3d 204, 208 (Tex.App.--Corpus Christi 2008, no pet.)("Fifth Circuit precedent is not binding on Texas courts, and its constitutional pronouncements are highly persuasive at best.").
Those cases turned on the expectation of privacy as outlined in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Jardines, 133 S.Ct. at 1417. Jardines was decided based on "the Fourth Amendment's property-rights baseline [which] keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines' property to gather evidence is enough to establish that a search occurred." Id. --------
The only controlling authority the State cites from the Texas Court of Criminal Appeals is State v. Weaver, 349 S.W.3d 521, 528 (Tex.Crim.App. 2011). In that case, the police had permission to look around a business for a fugitive, but expanded the search to include a van in the parking lot, notwithstanding the owner's protestations. The police brought in a drug sniffing dog which alerted on the vehicle. The court stated that "[t]he Supreme Court has made it clear that a dog sniff is not a search." Id. at 534. But the court dropped a footnote citing Caballes, Edmund, and Place, noting that each case is "premised, however, upon a finding that the officer--and therefore the dog--have a right to be standing where they are at the time of the canine sniff." Id. at 534. Because the officers in Weaver were in a private parking lot, they had no right to bring the dog with them. Weaver therefore would not provide a clear precedent allowing the officers here to conduct a search at the front door when the scope of their permission to be there was limited to knocking on the door.
The State also cites to our opinion in Sabedra v. State, No. 08-07-00276-CR, 2009 WL 3790012 at *5 (Tex.App.--El Paso Nov. 12, 2009, no pet.)(not designated for publication). That case addressed the search of a bus passenger's luggage after the passenger had already given the police reasonable cause to conduct the search. Based on the United States Supreme Court's decision in United States v. Place we noted a "luggage sniff by a dog is neither an investigatory stop nor a search and seizure." 2009 WL 3790012, at *5. Sabedra, nor any other of our cases that we have found, permit the search around the front door of a home by a trained narcotics dog. Appellate decisions from Fort Worth and Houston could be read to go that far, but they are not controlling precedent in this appellate district. See 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); 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).
As we note, however, the good faith exception outlined in Heien is arguably broader than Davis because it does not turn on binding judicial precedent, but only a reasonable mistake of the law. But Heien addresses a mistake of substantive criminal law (what is a crime) and not a mistake of criminal procedure (i.e. how far may a search extend). We think this distinction is important, and believe that Heien should be cabined to those limited situations where there may be an objectively reasonable dispute over the application of a criminal statute to a person's conduct. The few cases applying Heien in Texas have not applied it to police procedural issues. State v. Tercero, 467 S.W.3d 1, 10-11 (Tex.App.--Houston [1st Dist.] 2015, pet. filed) (Heien good faith exception did not apply to mandatory blood draw procedure); Evans v. State, 14-13-00642-CR, 2015 WL 545702, at *4 (Tex.App.--Houston [14th Dist.] 2015, pet. filed) (mem. op.)(not designated for publication)(same).
In sum, we decline the State's invitation to create a good-faith reliance exception based on Heien with respect to a Florida v. Jardines type search at the front door of a residence. The State does not expressly urge us to apply the Davis good faith exception to the fact of this case and we therefore do not expressly decide that issue.
Does the Statutory Good Faith Exception Apply?
Finally, the State argues that the statutory exception in Article 38.23(b) applies here because the evidence was obtained by a police officer acting in good faith reliance upon a warrant. While the warrant was in turn based on illegally obtained information, the State contends the magistrate's determination of probable cause is not undermined simply because of a subsequent change in the law. Following the rationale of the dissenting opinion State v. Cuong Phu Le, 463 S.W.3d 872, 889-90 (Tex.Crim.App. 2015)(Alcala, J., dissenting), the State contends Jardines cannot render a nullity the probable cause that existed at the time the search warrant was issued.
Article 38.23(b) provides: "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(9)(West 2005). The exception by its express terms requires the warrant to have been supported by probable cause. 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."). At the time of its adoption, this probable cause requirement distinguished the Texas statutory exception from the then existing federal good faith exception and made the Texas exception narrower than its federal counterpart. Gordon v. State, 801 S.W.2d 899, 912-13 (Tex.Crim.App. 1990).
The majority in Cuong Phu Le reminds us that a "search warrant may not be procured lawfully by the use of illegally obtained information." 463 S.W.3d at 877, 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). Accordingly, an officer cannot sanitize illegally obtained information by feeding it through a magistrate, who in turn authorizes a search warrant. State v. Guo, 64 S.W.3d 662, 668 (Tex.App.--Houston [1st Dist.] 2001, no pet.)(evidence obtained pursuant to the warrant was properly suppressed when information obtained from illegal warrantless search was used to establish probable cause for the warrant); State v. Aguirre, 5 S.W.3d 911, 914 (Tex.App.--Houston [14th Dist.] 1999, no pet.)(evidence recovered by executing warrant was fruit of an earlier and illegal search); State v. Johnson, 896 S.W.2d 277, 288 (Tex.App.--Houston [1st Dist.] 1995, pet. ref'd)(search pursuant to warrant was invalid where information used in affidavit to obtain warrant was gained by prior illegal, warrantless search).
There are exceptions, of course, as when independent and lawfully acquired information in the affidavit establish probable cause. McClintock, 444 S.W.3d at 19. But as we set out above, the warrant here did not contain sufficient lawfully acquired information to establish probable cause without the dog-sniff evidence. See McClintock, 444 S.W.3d at 19-20 (residual probable cause evidence insufficient to support search warrant). Article 38.23(b) also forgives some technical defects in a warrant. See e.g. Dunn v. State, 951 S.W.2d 478, 479 (Tex.Crim.App. 1997)(failure of magistrate to sign one of several pages). The issue here, however, is not a technical defect, but is rather the question of whether the use of the dog search in the affidavit was illegal.
The State urges that if the officers objectively believed that the search was proper, then the fruits of that search may still be considered as a part of the probable cause for the purposes of Article 38.23(b). We think the answer to that argument turns on the retroactive application of Jardines. At one time, the United States Supreme Court only applied newly announced rules governing criminal prosecutions if they met a multi-factorial test, principally asking whether the new rule constituted a clear break from past precedent. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The application of that test proved difficult, however, and the court migrated to a bright line rule that new rules for the conduct of criminal prosecutions apply retroactively to all cases pending on direct appeal at the time the new rule is announced. Griffith v. Kentucky, 479 U.S. 314, 326-28, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Texas Court of Criminal Appeals in Taylor v. State, 10 S.W.3d 673 (Tex.Crim.App. 2000) explained the logic of Griffith this way: "The Court criticized as arbitrary the practice of 'simply fishing one case from the stream of appellant review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by the new rule.'" Id. at 678, quoting Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)(Harlan, J. concurring). "The Supreme Court's retroactivity analysis for federal constitutional errors is binding upon the states when federal constitutional errors are involved." Taylor, 10 S.W.3d at 679.
If Jardines applies retroactively as Griffith requires, then we think by definition the use of the dog search in this case was illegal at the time it took place. The United States Supreme Court assumed as much for the searches both in Davis and Illinois v. Krull, 480 U.S. 340, 359-60, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), which similarly dealt with invalidated search procedures. See Heien, 135 S. Ct. at 539. If we simply decreed that a canine search performed before Jardines is valid under a good faith exception, we would effectively emasculate Griffith. The Jardines ruling would be applied retroactively just up to the point the State cries good faith, and then the effect of Jardines would evaporate for any case in the appellate pipeline. We cannot, therefore, apply the exception in Article 38.23(b) in a way that swallows Griffith's retroactive application of a federal constitutional right. Because there was a violation of the Fourth Amendment at the time of the search, and the evidence gleaned as a result of that violation is an integral part of the probable cause to support the warrant, the exception in Article 38.23(b) does not apply.
CONCLUSION
Accordingly, we find that the Jardines error is not forfeited under the unique facts of this case. The warrant here included a dog drug sniff that was improper under Jardines, and without the dog's alert, there is no probable cause to support the search warrant. We reject the State's proffered Heien based good faith exception, and similarly find that the statutory exception in Article 38.23(b) does not apply here because the warrant was not supported by probable cause. We accordingly grant Appellant's Motion for Rehearing, reverse the conviction below, and remand the case for further proceedings not inconsistent with this opinion. January 27, 2016
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Rodriguez, J., not participating) (Do Not Publish)