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



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Davis preserves the admissibility of evidence seized by the police prior to that

ruling pursuant to a warrant obtained in good-faith reliance on binding precedent at

the time the warrant was obtained. Nothing in Texas law or in the text of article

38.23 provides any basis for applying Jardines and ignoring Davis in this case.

      Having failed to address Davis, however, and without showing any genuine

conflict between the federal good-faith exception to the exclusionary rule as

explicated in Davis and the express terms of Texas’s statutory good-faith exception

set out in article 38.23(b) or any genuine conflict between applicable federal law

construing the good-faith exception and controlling Texas precedent, the majority

in this case does exactly the opposite of what the Supreme Court said in Davis that

a court construing the exclusionary rule and its good-faith exception in deciding

Fourth Amendment cases should do: it declares the warrant obtained by Officer

Arthur to search appellant’s residence to be illegal because of the subsequent

change in the construction of the Fourth Amendment by the Supreme Court in

Jardines and then declares the officers’ actions in executing the warrant

retroactively illegal and the evidence seized under the warrant inadmissible, even

though the search was undertaken in objective good faith and was based on

probable cause under precedent binding at the time the warrant was issued.

      The majority’s construction of the text of article 38.23 is not only unfounded

in law but objectively unreasonable under the Supreme Court and Texas cases that



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established the exclusionary rule and its good faith exception, in that it entails

exactly the absurd consequences avoided by applying the exclusionary rule and the

good-faith exception in accordance with Davis, Miles, and Wehrenberg.              The

majority opinion requires the courts to construe the exclusionary rule as having the

opposite purpose from that for which it was promulgated—the deterrence of police

illegality—and to apply it where that purpose is not advanced and, therefore,

should not be applied.      See Miles, 241 S.W.3d at 35 (“Deterrence of police

illegality is the ‘core’ rationale for applying the federal exclusionary rule . . . .”);

see also Davis, 131 S. Ct. at 2431 (“[E]xclusion of evidence does not automatically

follow from the fact that a Fourth Amendment violation occurred. The remedy is

subject to exceptions and applies only where its ‘purpose is effectively

advanced.’”) (citations omitted). The majority’s holding thus vitiates the purpose

of both the exclusionary rule and the good faith exception.

      For the foregoing reasons, I cannot join the majority opinion or its holding,

and I therefore must dissent.




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                                    Conclusion

      I would affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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