                                                                           PD-0605-14
                                                        COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 5/14/2015 7:54:31 PM
                           No. PD-0605-14               Accepted 5/15/2015 12:41:09 PM
                                                                         ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF                TEXAS, AT AUSTIN CLERK
                        The State of Texas
                               Appellant
  May 15, 2015                      v.
                           Cuong Phu Le
                                Appellee
     On Appeal from Harris County in Case Number 1369320, from
     the 230th District Court, the Hon. Jeannine Barr, Judge
     Presiding; and the Opinion of the Fourteenth Court of Appeals in
     Case Number 14-13-00635-CR, Delivered April 8, 2014



                 Motion for Rehearing

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW, Cuong Phu Le, Appellee in the above styled

and numbered cause, and respectfully enters this Motion for

Rehearing, pursuant to Rule 79.2, Tex.R.App.Pro., and would

show the Court that on April 29, 2014, this Court reversed the

actions of the trial court and Court of Appeals in a published

opinion. See State v. Le, _____ S.W.3d _____ (Tex.Cr.App. No.

PD-0605-14; April 29, 2015).

     This motion for rehearing is timely filed if presented or post-

marked on or before May 14, 2015. In that regard, Appellee would
show the Court that it should grant rehearing and affirm the

opinion and judgment of the Court of Appeals for the following

reasons:

    Based on its holding in McClintock v. State, 444 S.W.3d 15

(Tex.Cr.App. 2014), after excising evidence that a police drug-dog

sniff had been conducted in this case, the Court held that the

“untainted information” in the search-warrant affidavit clearly

established probable cause. The Court reversed the judgment of

the Court of Appeals and remanded the case to the trial court.

State v. Le, slip op. at 15.

    The Court also determined that, although the trial court and

Court of Appeals had determined the “untainted information in the

search-warrant affidavit” was stale, Davis v. State, 202 S.W.3d

149, 157 (Tex.Cr.App. 2006)(“Davis II”), “makes clear that

Appellee’s approach is inconsistent” with Illinois v. Gates, 462

U.S. 213, 236 (1983). Appellee asserts that the Court’s analysis

of the instant case, Davis II, and Gates, is incorrect.

    The warrant in Davis was a “smell” warrant, based on

information from an officer that he smelled a strong chemical odor

                                2
coming from a residence that he associated with the manufacture

of methamphetamine. Davis v. State, 165 S.W.3d 393, 397 (Tex.

App. - Fort Worth 2005)(“Davis I”). The affidavit submitted did not

include information about the officer's expertise or experience in

recognizing      odors    associated   with     methamphetamine

manufacture. There were no details about why the officer thought

it was from that particular house. Additionally, the officer who

swore to the affidavit was not the officer who smelled the

chemicals, he had no personal knowledge of the odor or the

suspected residence, he did not verify the other officer's

observations, and other information provided in the affidavit was

neither verified nor substantiated. Davis I, 165 S.W.3d at 397-

398.

       The Court of Appeals averred that while “the veracity of an

officer   is   presumed    if   unchallenged,   expertise   is   not

presumed.”Davis I, 165 S.W.3d at 400. Over a dissent which

noted that “common sense and reasonable interpretation” dictate

that the officer (Westervelt) “had enough experience and expertise

that he had previously smelled the same chemical odor and had

                                  3
previously      associated          it    with      the      manufacture            of

methamphetamine,” the majority of the Court of Appeals held that

this assumption added information to the affidavit that “is

contained nowhere in it.” Davis I, 165 S.W.3d at 400.

    On discretionary review, this Court held that it was not

unreasonable to infer that when a person identifies a smell by

association, he has encountered that odor-causing agent before.

Davis II, 202 S.W.3d at 157.
    This is especially so when that person may reasonably be expected to have
    had some experience with that kind of odor. For example, if a pilot says,
    “That smells like jet fuel,” the natural assumption is that, because he is a
    pilot, he has previously encountered jet fuel and recognizes it specifically
    by its smell. That is not an unreasonable inference. Neither is the inference
    that a police officer in today’s society, with the current prevalence of
    methamphetamine, who says that he smells an odor that “he has
    associated” with the manufacture of methamphetamine, has previously
    come into contact with a methamphetamine laboratory and can recognize
    the odor it emits.

Davis II, 202 S.W.3d at 157. Ultimately, the Court stated that it

had examined the affidavit and concluded that the magistrate had

drawn “reasonably available inferences” in finding that it supplied

probable cause. “We hold that the trial court properly deferred to

the magistrate's probable cause determination in this case, and




                                         4
did not err to deny the Appellant's motion to suppress.” Davis II,

202 S.W.3d at 157.

    Davis II had nothing to do with the question of staleness.

Further, Davis II is not supportive of the Court’s holding in the

instant case, and is not contrary to anything in Gates.

    Appellee admits that, under Gates, the reviewing courts are

supposed     to       provide   “great   deference”   to   a   magistrate’s

determination of probable cause, and that the review should be

based   on        a     “totality-of-the     circumstances     approach.”

Nevertheless, to take this to mean that staleness has no place in

a Gates analysis is to read something into the law that is simply

unwarranted. More importantly, this Court has never said the

doctrine of staleness was dead, and, in fact, has addressed

“staleness” cases in the recent past.

    The Court was concerned with staleness when it decided

State v. Jordan, 342 S.W.3d 565 (Tex.Cr.App. 2011). There, the

police officer presented his search-warrant affidavit to the

magistrate on June 6, 2008. The magistrate signed the warrant at

3:54 a.m.

                                         5
       The officer's affidavit stated that the defendant "committed the

offense of Driving While Intoxicated on June 6, 2008, and then

described the driving and intoxication that constituted elements

of that offense.” Jordan, 342 S.W.3d at 570. The Court noted that

the magistrate “needed to know when the [defendant] was stopped

in order to determine the probability that evidence of an offense

would be found in the [defendant's] blood at the time the warrant

issued,” and the officer should have included the time that he

stopped or arrested the defendant. Jordan, 342 S.W.3d at 570.

The Court nonetheless found that such an omission was not fatal,

because the officer did say that the defendant had committed the

offense on June 6th, so necessarily there was less than a

four-hour interval between the initial stop and the signing of the

warrant at 3:54 a.m. on that same date. Jordan, 342 S.W.3d at

571.

       The Court was once again concerned with staleness when it

delivered Crider v. State, 352 S.W.3d 704 (Tex.Cr.App. 2011).

There, the defendant claimed, both at trial and on appeal, that the

search warrant failed to establish "recent" probable cause. The

                                   6
affidavit in support of the search warrant stated simply that

Appellant was stopped on June 6 without referencing the time of

day, and the warrant was signed by a magistrate at 1:07 a.m. on

June 7. Crider, 352 S.W.3d at 706.

     In an unpublished opinion, the Court of Appeals held that the

search warrant affidavit established probable cause to believe that

evidence of intoxication would be found in Appellant's blood, even

though the officer did not specify when, on the day before he

obtained the search warrant, he had stopped Appellant. PDR was

granted to address whether a search warrant affidavit for blood

must contain the time the DWI arrestee was stopped. Crider, 352

S.W.3d at 705.

     Calling Crider a “bookend” case to Jordan, the Court held

that the affidavit in that case was not sufficient to show probable

cause “because there could have been a twenty-five-hour gap

between the time the officer stopped [the defendant] and the time

he obtained the search warrant for blood.” Crider, 352 S.W.3d at

705. Specifically, the Court held that the affidavit lacked sufficient

facts “within the four corners to establish probable cause that

                                  7
evidence of intoxications would be found in [the defendant]’s blood

at the time the search warrant was issued.” Crider, 352 S.W.3d at

705.

       Both Crider and Jordan considered and were concerned with

the concept of the staleness of the evidence. Further, both Crider

and Jordan were delivered long after the Court’s decision in Davis

II. Finally, both Crider and Jordan were considered in line with

the “totality-of-the circumstances approach” prescribed by Gates.

       In short, staleness is still a viable concern in Fourth

Amendment search warrant cases. The question is, was, and

remains, whether information contained within the four corners

of an affidavit seeking the issuance of a search warrant

demonstrates that the evidence in question would probably be

found at the time the search warrant was issued. Davis II, 202

S.W.3d at 154.1

       Judge Alcala delivered a dissenting opinion in this case. State

v. Le, PD-0605-14 (Tex.Cr.App. April 29, 2015)(Alcala, J.,

1
  Citing, in footnote, Cassias v. State, 719 S.W.2d 585, 587 (Tex.Cr.App. 1986);
Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App. 1983); and ; Gish v. State, 606
S.W.2d 883, 886 (Tex.Cr.App. 1980).

                                       8
dissenting). In that dissent, Judge Alcala noted that there are six

significant problems that occurred in this case:

     Î dog-sniff evidence was used as probable cause for this
       warrant, but the Supreme Court has now disallowed that type
       of evidence in the manner that it was obtained in this case;2

     Ï the officer’s expert opinion about the citizen’s tip is
       unsupported by the facts;3

     Ð the officer’s general statements about high electricity usage
       being indicative of a marijuana growing operation are
       immaterial to this case;4

     Ñ the officer’s general statements about the significance of
       supplemental air conditioning are immaterial to this case;5

     Ò the vast majority of the information used to sustain the
       warrant was stale information obtained about two weeks
       before the search warrant was obtained;6 and

     Ó there is inadequate information from which to infer that this
       was an ongoing marijuana growing operation.7


 2
     State v. Le, Alcala, J., dissenting, slip op. at 3.
 3
     State v. Le, Alcala, J., dissenting, slip op. at 3-5.
 4
     State v. Le, Alcala, J., dissenting, slip op. at 5-6.
 5
     State v. Le, Alcala, J., dissenting, slip op. at 6-7.
 6
     State v. Le, Alcala, J., dissenting, slip op. at 7-11.
 7
     State v. Le, Alcala, J., dissenting, slip op. at 11-12.

                                           9
“Taking these six problems with the search warrant into

consideration, the totality of the facts fail to establish probable

cause for this search.” State v. Le, Alcala, J., dissenting, slip op.

at 2-3.

     The six reasons cited by Judge Alcala notwithstanding,

Appellant asserts, without the evidence of the “dog sniff,” the

remaining evidence failed to demonstrate that the requested

evidence would probably be found at the time the search warrant

was issued, because the information in the affidavit was stale.

Additionally, as Judge Alcala has noted, examining the

information in the search warrant in its totality, it fails to establish

probable cause as to the existence of an ongoing indoor

marijuana-grow operation.

     The facts show that no one was living in a residence for a

period of anywhere from one to three months; young Asian males

would reportedly visit the residence in the evenings and stay a

short while, but the affidavit includes no information about



                                  10
whether they returned at all between the time of the citizen’s tip

and the stop of appellee; no light was emitted from the residence;

on one day of one month, the blinds in the house were tightly

shut, but the affidavit includes no information as to whether the

blinds were shut at any other point in time during the month of

the officer’s surveillance; on one occasion, an officer smelled raw

marijuana outside of the front door of the house; appellee did not

live there but paid the utilities there; and one to two weeks after

those events, on one occasion after he had been there for several

hours, appellee and his car smelled like raw marijuana. According

to   the   affidavit,   evidence   of   high   electricity   usage   and

supplemental air conditioning units would have been indicative of

an ongoing marijuana-grow operation, but no evidence of either of

these circumstances was included in the affidavit. See Bonds v.

State, 403 S.W.3d 867, 873 (Tex.Cr.App. 2013). Furthermore,

according to the affidavit, daily visits to an indoor marijuana-grow

house are necessary to tend to the plants when someone does not



                                   11
live at the residence, but the affidavit then fails to include any

information to show that there were any visits to this location

during the month between the citizen’s tip and appellee’s arrest.

    Assuming that all of these facts occurred shortly before the

search warrant was signed, they arguably provide probable cause

to believe that there might be marijuana in the house. The totality

of these facts, however, is inadequate here because there was

about a two-week gap of time between almost all of these facts and

the issuance of the warrant. In short, all of the facts were stale,

except for the smell of raw marijuana on appellee and in his car,

and that smell was inadequate to establish probable cause for the

search of the house.

    To overcome the staleness of the facts presented in the

probable-cause affidavit, the affidavit would have had to show

probable cause of an ongoing criminal activity, but it failed in this

respect.   As Judge Alcala has noted, in assessing whether

information that might otherwise be stale can support a



                                 12
probable-cause determination in light of the existence of an

ongoing and continuous drug enterprise, courts have considered

factors such as confirmation of ongoing drug activity from

confidential informants; the defendant’s prior drug-trafficking

activities; and direct observations by law-enforcement agents

indicating drug-trafficking activity.8

       By contrast, here, there was little more than the smell of raw

marijuana at the front door of the house on a single day to suggest

that there was any drug activity at all at that location, let alone a

“long-standing, ongoing pattern of criminal activity.” United

States v. Rojas-Alvarez, 451 F.3d 320, 332 (5th Cir. 2006)

(citations omitted). Omitting the officer’s general observations

about marijuana-grow operations which were unconnected to the

facts of this case and the impermissible dog-sniff evidence, the

remainder of the affidavit contains isolated facts that, even taken




 8
     State v. Le, Alcala, J., dissenting, slip op. at 13; see FN 1.

                                         13
together, do not amount to probable cause to believe that there

was an ongoing indoor marijuana-grow operation.

                            Conclusion

     All of the events described in the affidavit supporting the

search warrant occurred about two weeks before the warrant was

issued, and the sole event, the smell of raw marijuana on appellee

and in his car, that occurred shortly before the issuance of the

warrant fails to establish probable cause for the search of the

house. Furthermore, the totality of the affidavit fails to establish

probable cause of an ongoing criminal activity which would permit

a court to consider the stale information.

                              Prayer

     WHEREFORE PREMISES CONSIDERED, Appellant prays this

Honorable Court will grant his Motion for Rehearing, reconsider its

rejection of the opinion of the Court of Appeals in this case, and,

on rehearing, affirm the actions of the Court of Appeals and the

trial court in this case.


                                14
Respectfully submitted,

David Michael Ryan
Attorney at Law
6161 Savoy Dr Suite 1116
Houston, Texas 77036
eMail: dmryanesq@hotmail.com
Tel. 713-223-9898
Fax: 713-223-8448
State Bar No. 00786412

John G. Jasuta
Attorney at Law
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
eMail: lawyer1@johngjasuta.com
Tel. 512-474-4747
Fax: 512-532-6282
State Bar No. 10592300



____________________________________
David A. Schulman
Attorney at Law
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
eMail: zdrdavida@davidschulman.com
State Bar Card No. 17833400

Attorneys for Cuong Phu Le


   15
           Certificate of Compliance and Delivery
       This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 2,588 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
January 6, 2014, a true and correct copy of the above and
foregoing “Motion for Rehearing” was transmitted via the eService
function    on    the   State’s     eFiling   portal,   to   David    Ryan
(dmryanesq@hotmail.com), current counsel for Appellee, Bridget
Holloway     (holloway_bridget@dao.hctx.net)            &    Alan    Curry
(curry_alan@dao.hctx.net), counsel for the State of Texas, and
Lisa     McMinn     (lisa.mcminn@spa.state.tx.us),           the     State’s
Prosecuting Attorney.



                                  ______________________________________
                                  David A. Schulman




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