Affirmed and Memorandum Opinion filed April 8, 2014.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00635-CR

                          THE STATE OF TEXAS, Appellant
                                              V.
                               CUONG PHU LE, Appellee

                       On Appeal from the 230th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1369320


                     MEMORANDUM OPINION

      The State of Texas charged Cuong Phu Le with felony possession of
marijuana.1 Appellee filed a motion to suppress evidence on grounds it had been
seized as a result of an illegal search. The trial court granted appellee’s motion to
suppress. We affirm.

                                       BACKGROUND
      1
          See Tex. Health & Safety Code Ann. § 481.121 (b)(4) (Vernon 2010).
      A warrant to search 8603 Jubilee Drive was issued on November 27, 2012.
The probable cause affidavit supporting the warrant was prepared by Houston
Police Department Officer Bobby Roberts, a narcotics supervisor with 26 years of
experience. According to the affidavit, a concerned citizen told Sergeant Robert
Clark of the Harris County Sherriff’s Department in November 2012 that
“suspicious activity” was occurring at 8603 Jubilee Drive.          Clark possessed
extensive training relating to the indoor cultivation and possession of marijuana.
The concerned citizen told Clark that (1) he never observed furniture being moved
into the residence and no one appeared to live there; (2) Asian males visited the
house during the early evening but never stayed long; (3) he had never seen a light
on in the residence even when the Asian males arrived at night; and (4) one of the
Asian males drove a black Toyota SUV with Texas license plate numbered
170HZY. The concerned citizen was a homeowner in Harris County Texas with
no criminal history.

      The affidavit further states that Clark conducted multiple surveillances on
the residence between November 6, 2012 and November 13, 2012. Clark observed
that no lights were visible in the residence other than at the front door and a single
light at the rear of the first floor. Clark observed that the mini-blinds were tightly
drawn on every window in the residence on November 6, 2012. Clark learned
through Centerpoint Energy that the utilities at 8603 Jubilee Drive were listed in
the appellee’s name.      Clark accessed the Texas Crime Information Computer
System and learned that appellee listed a different home address than 8603 Jubilee
Drive on his driver’s license and concealed handgun license. Clark traveled to the
address listed on the licenses as appellee’s home address and observed the black
Toyota in the driveway.

      On November 13, 2012, Clark traveled to 8603 Jubilee Drive and walked up

                                          2
the front sidewalk of the home to the front door. While standing at the front door,
Clark smelled what he believed from his training and experience to be raw
marijuana. While standing on the sidewalk in front of the residence, Clark heard
the air conditioning running.2

         Roberts conducted surveillance on the residence on November 27, 2012, and
observed appellee leave the residence in the black Toyota SUV. Hours later,
Roberts stopped appellee for traffic violations. During the traffic stop, Roberts
smelled what he believed from his training and experience to be raw marijuana on
appellee and in the car. The affidavit does not state that marijuana was found in
the car. Roberts requested the assistance of a Houston Police Department narcotics
detection dog. An officer and a narcotics detection dog responded to 8603 Jubilee
Drive.       The dog sniffed the front door and alerted officers to the odor of a
controlled substance.

         Based on this information, a magistrate issued a search warrant for 8603
Jubilee Drive. Police executed the warrant and seized 358 marijuana plants from
inside the residence. A grand jury indicted appellee with the felony offense of
possession of marijuana on January 14, 2013. Appellee filed a motion to suppress
the marijuana on May 16, 2013. At the suppression hearing, appellee argued that
(1) the use of dog sniffs at front doors had been invalidated by Florida v. Jardines,
133 S. Ct. 1409 (2013); and (2) the remaining evidence in the affidavit was based
on stale facts that were insufficient to support probable cause.

         The trial court considered the warrant, an affidavit by the arresting officer, a
memorandum by appellant’s trial counsel, and counsel’s arguments. The trial

         2
         The 2012 affidavit claims that it was 38 degrees Fahrenheit on November 13, 2012.
However, appellee’s motion to suppress included a weather report for “Houston Hull, Texas,”
which detailed that on November 13, 2012, the high was 60 degrees Fahrenheit and the low was
51 degrees Fahrenheit.

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court granted appellee’s motion. This appeal followed.

                                     ANALYSIS

      In one issue on appeal, the State argues that the trial court abused its
discretion in granting appellee’s motion to suppress the marijuana seized from the
Jubilee residence because (1) the magistrate who issued the search warrant was
acting in good faith in light of existing case law; and (2) even excluding the illegal
dog sniff, the affidavit established probable cause that appellee was growing
marijuana. Because the issue of probable cause is dispositive, we address it first.

I.    Probable Cause

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard, giving almost complete deference to the historical facts found by the trial
court and credibility but reviewing de novo the trial court’s application of the law
to the facts. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011);
Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). When the trial
court determines whether there was sufficient probable cause to support the
issuance of a search warrant, there are no credibility determinations and the trial
court is constrained to the four corners of the affidavit. McLain, 337 S.W.3d at
271. The parties agree that, after Jardines, the use of a narcotics detection dog on
a residence’s front porch without a warrant is an illegal search that violates the
Fourth Amendment. See Jardines, 133 S. Ct. at 1412. Jardines held that the
government’s use of a trained police dog to investigate the immediate surroundings
of Jardines’s home was an unlicensed physical intrusion that amounted to a search
within the meaning of the Fourth Amendment. Id. Here, the affidavit supporting
the warrant contained evidence of an illegal dog sniff of the front door.

      “‘When a search warrant is issued on the basis of an affidavit containing


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unlawfully obtained information, the evidence seized under the warrant is
admissible only if the warrant clearly could have been issued on the basis of the
untainted information in the affidavit.’” Brackens v. State, 312 S.W.3d 831, 838
(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (quoting Pitonyak v. State, 253
S.W.3d 834, 848 (Tex. App.—Austin 2008, pet. ref’d)); State v. Bridges, 977
S.W.2d 628, 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Thus, if the
remaining information in the affidavit clearly established probable cause, then the
warrant is valid. Wright v. State, 401 S.W.3d 813, 822 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d).

       Probable cause for a search warrant exists if, under the totality of
circumstances before the magistrate, there is a “fair probability” or “substantial
chance” that contraband will be found in a particular place. Flores v. State, 319
S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213,
243 n.13 (1983)). As long as the magistrate had a substantial basis for concluding
probable cause existed, we will uphold that probable cause determination.
McLain, 337 S.W.3d at 271. We may not analyze the affidavit in a hyper-technical
manner and instead should interpret the affidavit in a commonsense and realistic
manner, deferring to all reasonable inferences that the magistrate could have made.
Id.

       The State argues that the affidavit was supported by probable cause even if
the evidence of the dog sniff is disregarded. Appellee asserts that the following
information outlined in the affidavit should not be considered in our determination
of probable cause: (1) information provided by the concerned citizen; (2) the
electric account information;3 and (3) the odor of marijuana smelled by Clark on

       3
         Appellee asserts that the electric account information for the Jubilee residence adds
nothing to a determination of probable cause except that the account is in appellee’s name. We
agree.

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the front door of the Jubilee residence. After disregarding this evidence and the
dog sniff, the appellee argues that the remainder of the evidence does not establish
probable cause.

      A.     Reliability of the Concerned Citizen

      Appellee contends that “the information provided by the ‘Concerned
Citizen’ should not be considered because there is no indication this person is
reliable.” Appellee further argues that “when information provided by someone
whose identity is unknown is used to form the basis of probable cause for a search,
there must be some information to convey to the court that the unknown person is
reliable.” Appellee cites Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App.
1977), to support these assertions.

      The credibility test used in Torres is a vestige of Aguilar v. State of Texas,
378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). In Illinois
v. Gates, 462 U.S. 213, 238 (1983), the Court disapproved of the hyper-technical
rules of these cases in favor of a totality of the circumstances approach. See
Lockett v. State, 879 S.W.2d 184, 187 (Tex. App.—Houston [14th Dist.] 1994, pet.
ref’d). Although the concerned citizen’s tip might be insufficient to establish
probable cause, it may be considered under our review of the totality of the
circumstances. See Gates, 462 U.S. at 238 (“This totality-of-the-circumstances
approach is far more consistent with our prior treatment of probable cause than is
any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.”); see
also Flores, 319 S.W.3d at 702 (A tip from a confidential informant alleging the
presence of illegal drugs in the defendant’s residence was a circumstance that
could be considered along with all of the other circumstances, even though the tip
itself was insufficient to establish probable cause.) Therefore, we will consider
this portion of the affidavit.

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      B.     Smell of Marijuana from the Front Door

      Appellee asserts that the evidence of the smell of marijuana noted by Clark
should be excluded because it was obtained in violation of appellee’s Fourth
Amendment rights. In Jardines, the Supreme Court explained the scope of an
officer’s permissible actions when approaching a front door, stating, “[t]he knocker
on the front door is treated as an invitation or license to attempt an entry.”
Jardines, 133 S. Ct. at 1415. The invitation or license extended to “solicitors,
hawkers and peddlers” also extends to law enforcement officers, who are
accordingly permitted to do as any “‘private citizen’ might do.” Id. at 1415–16.
Law enforcement officers are permitted “to approach the home by the front path,
knock promptly, wait briefly to be received, and then (absent invitation to linger
longer) leave.” Id. at 1415.

      The relevant portion of the affidavit states:
      Clark walked up to the front door of the residence on the front
      sidewalk, which is open to all visitors. While standing at the front
      door of the residence Clark could smell a distinct odor that he knows
      through training and experience in conducting investigations of indoor
      marijuana grows to be that of raw marijuana.
Nothing in the affidavit suggests that Clark did more than any private citizen might
do. Thus, we conclude that the evidence of the smell of raw marijuana emanating
from the front door does not violate the Fourth Amendment. See Jardines, 133 S.
Ct. at 1419 n.2 (Kagan, J., concurring) (“If officers can smell drugs coming from a
house, they can use that information; a human sniff is not a search.”).

      Appellee argues alternatively that evidence that Clark smelled raw marijuana
from the front door of the Jubilee residence on November 13, 2012 is inadmissible
because the evidence was stale when the warrant issued on November 27, 2012.

      To determine whether the facts supporting a search warrant have become

                                          7
stale, we examine the elapsed time between the occurrence of events set out in the
affidavit and the time the search warrant was issued in light of the type of criminal
activity involved. McKissick v. State, 209 S.W.3d 205, 214 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d). The Court of Criminal Appeals has “suggested that
time is a less important consideration when an affidavit recites observations that
are consistent with ongoing drug activity at a defendant’s residence.” Jones v.
State, 364 S.W.3d 854, 860 (Tex. Crim. App. 2012), cert. denied, 133 S. Ct. 370
(2012).

      The State cites Lockett, and a number of out-of-state cases to support its
assertion that Clark’s observations were not stale. Lockett v. State, 879 S.W.2d at
188. In Lockett, the affidavit in support of a warrant contained information from
two confidential informants who had known Lockett for several years and
observed firearms in his residence months before the warrant was executed. Id. at
188. This court concluded that the affidavit was not based on stale information
because the magistrate could have concluded that Lockett had been in possession
of firearms over an extended period of time which continued until the time the
warrant was issued.

      Lockett is distinguishable from the case at hand. The affidavit in this case
does not state that anyone witnessed appellee with illegal contraband. Further, this
case concerns the possession of marijuana, not illegal firearms. See Kennedy v.
State, 338 S.W.3d 84, 98 (Tex. App.—Austin 2011, no pet.) (“[I]llegal weapons
are not fungible in the same way that drugs are and may be retained for long
periods of time.”). Thus, because of the transient nature of drugs, the evidence that
Clark smelled raw marijuana emanating from the Jubilee residence on November
13, 2012 was stale on November 27, 2012 when the warrant was executed. See
State v. Griggs, 352 S.W.3d 297, 303 (Tex. App.—Houston [14th Dist.] 2011, pet.

                                         8
ref’d) (“Facts stated in an affidavit must be so closely related to the time of the
issuance of the warrant that a finding of probable cause is justified at that time.”).

      C.     Totality of the Circumstances

      After disregarding the evidence of the illegal dog sniff and Clark’s
observations on November 13, 2012, the remaining facts in the affidavit establish:
(1) “suspicious activity” was occurring at the Jubilee residence; (2) individuals
only visited the residence on a sporadic basis; (3) the mini-blinds were tightly
drawn on every window in the residence; (4) the utilities at the residence were in
appellee’s name; and (5) appellee’s car and person smelled of raw marijuana hours
after leaving the residence. Under the totality of the circumstances, we conclude
that the remaining information in the affidavit does not clearly establish probable
cause that marijuana would be found at the Jubilee residence. See Flores, 319
S.W.3d at 702; Serrano v. State, 123 S.W.3d 53, 63 (Tex. App.—Austin 2003, pet.
ref’d) (probable cause not established by (1) an anonymous tip stating that
defendant was dealing cocaine in Travis County; (2) police records and personal
observations establishing a tenuous connection between defendant and the
residence; and (3) the discovery of a plastic bag containing cocaine residue in a
garbage can outside the residence); see also State v. Bayer, No. 13-13-00008-CR,
2014 WL 586012 at *4 (Tex. App.—Corpus Christi Feb. 13, 2014, no. pet. h.)
(mem. op.) (after excluding illegal evidence of a dog sniff, remaining evidence was
insufficient to support probable cause.).

II.   Good Faith Exception

      The State alternatively asserts that the evidence of marijuana is admissible
because the magistrate who issued the search warrant was acting in good faith in
light of existing case law.


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      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, shall not be admitted in evidence against the accused
on the trial of any criminal case. See Tex. Code Crim. Proc. Ann. art. 38.23(a)
(Vernon 2005).     Article 38.23(b) provides that “[i]t 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.” Id. art. 38.23(b).

      The State did not raise the issue of good faith to the trial court below at the
suppression hearing. An appellate court may not reverse a trial court’s decision
based on a legal theory not presented to the trial court. Hailey v. State, 87 S.W.3d
118, 121 (Tex. Crim. App. 2002); Wade v. State, 164 S.W.3d 788, 792 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). Thus, because the State failed to raise
this defense below, it is procedurally barred from asserting this argument as a basis
for reversing the trial court’s ruling. State v. Elrod, 395 S.W.3d 869, 883 (Tex.
App.—Austin 2013, no pet.).

                                   CONCLUSION

      Having overruled the State’s sole issue, we conclude that the trial court did
not err in finding that the magistrate lacked probable cause to issue the search
warrant of the Jubilee residence. Accordingly, we affirm the trial court’s order of
suppression.


                                       /s/    William J. Boyce
                                              Justice

Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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