             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-1641-15

                      BRADLEY RAY McCLINTOCK, Appellant

                                               v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

       A LCALA, J., filed a dissenting opinion.

                                 DISSENTING OPINION

       Because rules of statutory construction require this Court to apply a statute in

accordance with its plain language, I would affirm the court of appeals’s holding that the

evidence obtained against Bradley Ray McClintock, appellant, must be suppressed under

Article 38.23 of the Texas Code of Criminal Procedure. See T EX. C ODE C RIM. P ROC. art.

38.23. I agree with the court of appeals’s determination that, under the plain language of

the statute, the general rule in Article 38.23(a) requires the exclusion of the evidence because
                                                                               McClintock - 2

the Texas good faith exception in Article 38.23(b) does not apply to this case. See id.;

McClintock v. State, 480 S.W.3d 734, 743-44 (Tex. App.—Houston [1st Dist.] 2015). Under

its plain language, the exception in Article 38.23(b) applies when the warrant was issued by

a neutral magistrate “based on probable cause.” See T EX. C ODE C RIM. P ROC. art. 38.23(b).

This Court has already held that there was no probable cause to support the search warrant

that was issued in this case. McClintock v. State, 444 S.W.3d 15, 19-20 (Tex. Crim. App.

2014). Given that the plain language in Article 38.23(b) requires the existence of probable

cause for the exception in that portion of the statute to apply, and given this Court’s former

determination that this search warrant was issued in the absence of any probable cause under

a correct application of the law, I would apply the general rule in Article 38.23(a) and hold

that the evidence must be suppressed. See T EX. C ODE C RIM. P ROC. art. 38.23. For this

reason, I disagree with this Court’s decision to uphold the search in this case under the

rationale that, even though the warrant was issued in the absence of probable cause under a

correct view of the law, the search may be upheld under the good faith exception in Article

38.23(b) when the magistrate’s mistaken view of the law of probable cause was reasonable

under the then-accepted but incorrect articulation of the applicable law. I disagree with this

Court’s nuanced reading of Article 38.23(b) that is inconsistent with the statute’s plain

language that expressly requires a warrant “based on probable cause.” It is inappropriate to

consider extra-textual sources to evaluate the meaning of the plain language in a statute that

is not ambiguous. Because the good faith exception in Article 38.23(b) does not apply to this
                                                                                  McClintock - 3

case under the statute’s plain language requirement of a warrant based on probable cause, I

would apply the general rule in Article 38.23(a) that requires the exclusion of the evidence.

See T EX. C ODE C RIM. P ROC. art. 38.23. I, therefore, respectfully dissent.

                                           I. Analysis

       Under the rules of statutory construction, this Court must apply the plain language of

a statute as it is written, and we may not consider extra-textual sources to interpret the statute

unless its meaning is ambiguous or its plain language would lead to absurd results. Boykin

v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991). It is necessary, therefore, to begin

with the actual language in Article 38.23, which states,

       (a) No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

                                              ***
       (b) It is an exception to the provisions of Subsection (a) of this Article that the
       evidence was obtained by a law enforcement officer acting in objective good
       faith reliance upon a warrant issued by a neutral magistrate based upon
       probable cause.

T EX. C ODE C RIM. P ROC. art. 38.23.

       The exception in Subsection (b) of Article 38.23 plainly requires that the evidence was

obtained pursuant to “a warrant issued by a neutral magistrate based on probable cause.” See

id. Unless such a warrant exists, then the good faith exception is inapplicable under a plain

reading of the statute. See id.; State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App.

1996) (“[W]here a statute contains an express exception, its terms must apply in all cases not
                                                                               McClintock - 4

excepted.”). Here, this Court has already held that there was no probable cause in this case

under a correct application of the law in existence at the time of the search. McClintock, 444

S.W.3d at 19-20. In the absence of a warrant based on probable cause, the plain language

of the statute precludes any consideration of whether the officer acted in good faith reliance

on the warrant.

       That the application of Article 38.23(b) requires a valid warrant based on probable

cause is well established under longstanding precedent in this Court. See Curry v. State, 808

S.W.2d 481, 482 (Tex. Crim. App. 1991) (“The plain wording of Art. 38.23(b) requires an

initial determination of probable cause.”). Because an initial determination of probable cause

is necessary, the good faith exception in Subsection (b) has been satisfied only in cases

involving technical defects in warrants, not warrants issued in the absence of valid probable

cause under a correct application of the law. See, e.g., Dunn v. State, 951 S.W.2d 478, 479

(Tex. Crim. App. 1997).

       Because the statutory language plainly and rationally requires a warrant “based on

probable cause,” it is inappropriate to consider extra-textual sources to change the meaning

of the statute. See Boykin, 818 S.W.2d at 785-86. This Court’s majority opinion discusses

federal law for purposes of examining whether the good faith exception should apply under

these circumstances. Reference to extra-textual sources, however, is improper because this

statute is not ambiguous and applying its plain language would not lead to absurd results.

Disallowing the results of searches of people’s homes when there is no probable cause to
                                                                                  McClintock - 5

support the search is not an absurd result, and, rather, it is the best way to ensure that people

feel secure in their homes. See T EX. C ONST. Art. I, § 9. Regardless of whether this search

might be upheld under federal law, the issue before this Court is one of state statutory

interpretation and the plain meaning of the statute’s text, and, thus, it is inappropriate to rely

on those federal sources in this case.

       The majority opinion suggests that, if there was probable cause under the law as it

existed when the magistrate issued the warrant, then that triggers the consideration of the

good faith exception in Article 38.23(b). But that interpretation of the statute does violence

to its plain language that requires that it be “based on probable cause” under the correct

application of the law. If, as the majority opinion suggests, some incorrect former view of

probable cause will suffice to meet the statutory requirement of a warrant based on probable

cause, then all of this Court’s precedent, as described above, that has stated otherwise must

be abandoned. This Court’s new interpretation of this statute will mean that, when a

magistrate and search warrant affiant believe that the warrant is being issued based upon

probable cause under the existing law, but they are reasonably wrong about the existing law

due to this Court’s mistaken statements about the law, then the evidence need not be

suppressed. This is a novel interpretation of Article 38.23 that is inconsistent with all of this

Court’s former descriptions of the plain language of this statute. I conclude that this

interpretation stretches the statute far beyond its plain language that requires a warrant “based

on probable cause.” Because the warrant in this case was issued in the absence of valid
                                                                                 McClintock - 6

probable cause, Article 38.23(b) is inapplicable, and the results of the search must be

suppressed under the general rule in Article 38.23(a). See T EX. C ODE C RIM. P ROC. art. 38.23.

                                        II. Conclusion

       I would apply the plain language of this State’s statutory law that requires the

exclusion of the evidence obtained by a search warrant that was issued in the absence of

probable cause. I, therefore, would affirm the judgment of the court of appeals.

Filed: March 22, 2017

PUBLISH
