                                                                                  PD-0013-15
                         PD-0013-15 & PD-0015-15                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                              Transmitted 12/31/2014 4:19:30 PM
                                                                 Accepted 1/12/2015 2:02:27 PM
JANUARY 12, 2015                                                                   ABEL ACOSTA
                                                                                           CLERK
                             NO. 13-13-00665-CR

                   TO THE COURT OF CRIMINAL APPEALS

                                  OF TEXAS


THE STATE OF TEXAS                                            Appellant,

                                        v.

MICHAEL ERIC RENDON                                           Appellee.


                          Appeal from Victoria County

                   _____________________________________

            STATE’S PETITION FOR DISCRETIONARY REVIEW
                _____________________________________

                            STEPHEN B. TYLER
                           Criminal District Attorney
                            Victoria County, Texas
                            Bar I.D. No. 24008186


                              BRENDAN W. GUY
                       Assistant Criminal District Attorney
                             Victoria County, Texas
                             Bar I.D. No. 24034895
                           205 N. Bridge St. Ste. 301,
                           Victoria, Texas 77901-6576
                          (361) 575-0468 (Telephone)
                              (361) 570-1041 (Fax)
                                                 Table of Contents


Table of Contents.................................................................................... 2-3

Index of Authorities ............................................................................... 4-6

Statement Regarding Oral Argument ..................................................... 7

Statement of the Case............................................................................. 7-8

Statement of Procedural History ............................................................. 8

Statement of Facts ................................................................................ 8-11

Ground for Review .................................................................................. 11

      I. The Court of Appeals finding that the area outside of
         Appellee’s apartment constituted the curtilage of that
         apartment incorrectly decided an important question
         of State and Federal law that has not been but should
         be settled by the Court of Criminal Appeals ............................. 11

Argument and Authorities ................................................................ 11-19

      I. The Court of Appeals committed reversible error by
         applying the wrong legal standard for determining
         whether or not the area outside of Appellee’s apartment
         constituted an area of curtilage .............................................. 11-20

Prayer ....................................................................................................... 21

Signature .................................................................................................. 21

Certificate of Compliance....................................................................... 22

Certificate of Service............................................................................... 23

Appendix ...................................................................................... A-1-A-13
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                                                    2
       I.       Appendix Table of Contents ................................................... A-1

      II.        Dec. 4, 2014 Judgment
                 in Cause Number 13-13-00665-CR,
                 State of Texas v Michael Eric Rendon................................... A-2

    III. Dec. 4, 2014 Memorandum Opinion
         in Cause Number 13-13-00665-CR
         State of Texas v Michael Eric Rendon........................ A-3 –A-13




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                                     3
                                                     Index of Authorities


                                            United States Supreme Court Cases

Florida v. Jardines, 133 S.Ct. 1409 (2013) ............. 11, 15, A-6, A-8-A-11,
............................................................................................................... A-13

Illinois v. Cabales, 543 U.S. 405 (2005) .................................................. 11

Oliver v. United States, 466 U.S. 170 (1984) .......................................... A-9

Silverman v. United States, 365 U.S. 505 (1961) ................................ A-9

United States v Dunn, 480 U.S. 294 (1987) .................................. 12, 19-20

United States v. Jones, 132 S.Ct. 945 (2012) ...................................... A-8



                                                Federal Court of Appeals Cases

United States v. Cruz Pagan, 537 F. 2d 554 (1st Cir. 1976) .................... 17



                                                         Texas Cases

Amador v. State, 221 S.W. 3d 666 (Tex. Crim. App. 2007) ................ A-7

Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App. 1991) ................. A-11

Evans v. State, 995 S.W. 2d 284
(Tex. App. –Houston (14th Dist.) 1999, pet. ref’d) ....... 12, 16, A-10-A-11

Guzman v. State, 955 S.W. 2d 85 (Tex. Crim. App. 1997) ................ A-7

McClintock v. State, No. PD-0925-13 (Tex. Crim. App. 2014) ......... A-11

Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                                                       4
Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007) ....... A-8, A-12

State v. McLain, 337 S.W. 3d 268 (Tex. Crim. App. 2011)...... A-7-A-8,
............................................................................................................... A-12

State v. Rendon, No. 13-13-00665-CR
(Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed) .................... 8, 13-14,
....................................................................................................... A-2-A-13

State v. Rendon, No. 13-13-00666-CR
(Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed) ...............8, A-3-A-13

State v. Robinson, 334 S.W. 3d 776 (Tex. Crim. App. 2011).............. A-7

State v. Weaver, 349 S.W. 3d 521 (Tex. Crim. App. 2011) ..................... 12

Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005) ................... A-11


                                                   Other States Cases

Commonwealth v. Thomas, 358 Mass. 771,
267 N.E. 2d 489 (1971) ............................................................................ 17

Jardines v. State, 73 So. 3d 34 (Fla. 2011) ............................................ A-9

State v. Nguyen, 2013 ND 252, 841 N.W. 2d 676 (N.D. 2013) .......... 16-17


                                                United States Constitution

U.S. CONST. amend. IV .................................................. 11, 18, A-5-A-11

U.S. CONST. amend. XIV .................................................................... A-5




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                                                       5
                                                Texas Constitution

TEX. CONST. art I, §§ 9 ............................................................ A-5, A-11

TEX. CONST. art I, §§ 10 .................................................................... A-5

TEX. CONST. art I, §§ 19 .................................................................... A-5


                                                  Texas Statutes

TEX. CODE CRIM. PROC. ANN. art 44.01 (West 2014) ................ A-6

TEX. HEALTH & SAFETY CODE § 481.121 (West 2010) .............. A-5

TEX. PENAL CODE §34.02 (West 2011) ........................................... A-5


                                                   Texas Rules

TEX. R. APP. 9.4 ..................................................................................... 22

TEX. R. APP. 47.1 ................................................................................. A-6

TEX. R. APP. 47.2 ............................................................................... A-13




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                                            6
                                                   No. 13-13-00665-CR

                                  TO THE COURT OF CRIMINAL APPEALS

                                                OF THE STATE OF TEXAS



THE STATE OF TEXAS, ............................................................................... Appellant

v.

MICHAEL ERIC RENDON, ......................................................................... Appellee

                                                       * * * * *

                     STATE’S PETITION FOR DISCRETIONARY REVIEW

                                                       * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

           Comes now the State of Texas, by and through its Criminal District Attorney

for Victoria County, and respectfully urges this Court to grant discretionary review

of the above named cause, pursuant to the rules of appellate procedure.

                                         Statement Regarding Oral Arguement

            Oral argument is waived.

                                                  Statement of the Case

            Appellee was charged by indictment on August 2, 2012 in Cause Number

12-8-26805-D with one count of possession of marihuana in an amount of five

pounds or less but more than four ounces. [CR-I-1]. On September 13, 2012 the
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                               7
Appellee filed a motion to suppress. [CR-I-2-4]. On June 14, 2013, the Appellee

filed two addition motions to suppress. [CR-I-6-13]. A hearing was held on those

motions to suppress on October 30, 2013. [RR-II-1]. On November 26, 2013, the

trial court, with the Honorable Robert Cheshire presiding, granted the defense

motion to suppress and submitted written findings of fact and conclusions of law

explaining his ruling. [CR-I-14]. The State timely filed its notice of appeal on

December 3, 2013. [CR-I-23-26]. On December 4, 2014, the Thirteenth Court of

Appeals (hereafter Court of Appeals) affirmed the trial court ruling granting the

motion to suppress. State v. Rendon, No. 13-13-00665-CR & 13-13-00666-CR

(Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed).                              The Court of Appeals

concluded that the narcotics dog sniff in this case occurred from within the

curtilage of Appellee’s apartment and was therefore an unreasonable search. Id. at

7-9.

                                                Statement of Procedural History

             On December 4, 2014, the Thirteenth Court of Appeals upheld the trial

court’s suppression of evidence. Rendon, 13-13-00665 at 11. No motion for

rehearing was filed. The State’s petition is due January 3, 2015.

                                                      Statement of Facts

             The State’s first witness at the suppression hearing was Detective Jason

Stover of the Victoria Police Department. [RR-II-7]. Detective Stover established
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                                8
that he was a trained canine operator, and that his canine was properly certified as a

drug detection dog. [RR-II-8-14, State’s Exhibit 1]. Detective Stover then stated

that he was tasked with investigating Appellee and confirmed that he did obtain a

search warrant to enter Appellee’s residence as part of that investigation. [RR-II-

15; State’s Exhibit 2.]                         The search warrant was subsequently admitted into

evidence. [RR-II-21].

            Detective Stover further testified as to how on May 8, 2012, he went to

Appellee’s residence, an apartment located at 901 Bingham, Apartment C, in

Victoria, Texas, as part of a drug investigation and how his canine, Baco, alerted on

the exterior of the door to the apartment. [RR-II-16-17].

            Detective Stover then elaborated about the layout of the apartment complex,

explaining how it is a “four-plex”, with two apartments on the bottom, two on the

top, and the top having a common stair case that splits off into a balcony to the left

and the right. [RR-II-18]. He also described how the apartment had no gates, or

patios, that the stairway was open, that the doors to the apartment grounds were

open to the public, and that there were no “no trespassing” signs present on the

complex grounds. [RR-II-18].

            Detective Stover went on to describe how, after the investigating officers

were denied consent to search Appellee’s apartment, he left the grounds to obtain a

search warrant which they subsequently executed. [RR-II-20].
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                          9
            On cross-examination, Detective Stover agreed there were items of personal

property on the balcony area in front of the apartments on the second floor. [RR-

II-33].

            At the conclusion of the State’s case, Appellee called one of his neighbors, a

Mr. John Crook, as a witness. [RR-II-58]. On cross-examination, Mr. Crook noted

that he had the authority to order people off of the apartment, because he works for

the manager. [RR-II-73]. He also indicated in regards to people walking up the

landings in the apartments that “it’s a free world.” [RR-II-73]. Then on re-cross,

when asked by Appellee if he could keep people from coming to his door, Mr.

Crook only indicated that he could keep people from coming into his home. [RR-

II-75].

            No evidence was presented during the hearing that Appellee had any sort of

special authority over the area outside his apartment or that he could exclude other

people from that area. [RR-II].

            At the conclusion of the suppression hearing, the trial court ruled that while

the stairway leading up to the second floor was a common area, the court believed

that since Appellee’s apartment was the only apartment on the left side of the

stairway that the area from the stairway to the apartment was part of Appellee’s

apartment’s curtilage.                          [RR-II-81].   The court further held that that would

invalidate the open air sniff of the apartment and without the evidence obtained as
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                             10
a result of that sniff, the search warrant issued against the apartment could not

stand. [RR-II-81-82].

                  On November 26, 2013, the trial court issued a written order granting

Appellee’s motion to suppress along with written findings of fact consistent with

the verbal findings it made at the suppression hearing. [CR-I-13].

                                                 Ground for Review

      I. The Court of Appeals finding that the area outside of Appellee’s
         apartment constituted the curtilage of that apartment incorrectly
         decided an important question of State and Federal law that has not
         been but should be settled by the Court of Criminal Appeals.

                                                Argument and Authorities

      I. The Court of Appeals committed reversible error by applying the wrong
         legal standard for determining whether or not the area outside of
         Appellee’s apartment constituted an area of curtilage.

            The United States Supreme Court has established that having a drug

detection dog do an open air sniff within the curtilage of a house is search for

Fourth Amendment purposes. See Florida v. Jardines, 133 S.Ct. 1409, 1417-1418

(2013). However, the Supreme Court has also established that when drug detection

dogs perform open air sniffs in non-constitutionally protected areas it does not

implicate the Fourth Amendment. See Illinois v. Cabales, 543 U.S. 405, 409

(2005)(holding that an open air sniff on an automobile as part of a lawful traffic

stop does not implicate the Fourth Amendment.) The same holds true under Texas

Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                   11
law as this Honorable Court has also recognized that a canine sniff is not a search

so long as the officer conducted the sniff from a place they had the right to be. See

State v. Weaver, 349 S.W. 3d 521, 528-529 (Tex. Crim. App. 2011). Accordingly,

the legality of the open air sniff of Appellee’s apartment turns entirely on the legal

question of whether Detective Stover and Baco were in a curtilage area when they

conducted the open air sniff. If they were then the sniff was unreasonable, if not it

was lawful and thus the information obtained from that action could be used to

support obtaining a search warrant for Appellee’s apartment.

            The United States Supreme Court has provided guidance in determining

when a location is a curtilage area.            The test is “whether the area harbors the

intimate activity associated with the sanctity of a man’s home and the privacies of

life.” United States v Dunn, 480 U.S. 294, 300 (1987). Common areas of an

apartment are therefore not part of the curtilage. See Evans v. State, 995 S.W. 2d

284, 286 (Tex. App. –Houston (14th Dist.) 1999, pet. ref’d).

            Based upon the Supreme Court’s definition of curtilage it is clear that any

analysis of if a location is part of a common area of an apartment or is a curtilage

area must include a determination of if a party has the power to exclude others

from that area. Such a finding is necessary because a party can hardly be said to

have a safe harbor for the “privacies of life” in a location where outsiders can

lawfully walk right up to them to observe what they are doing there. A party must
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                 12
have the power to exclude outsiders from an area to be safe to enjoy the privacies

of life there and as such a location where a person does not have the power to

exclude others can never be a curtilage area. Therefore any analysis of whether a

location is part of a curtilage area of an apartment must include a threshold

determination of whether the person trying to claim that area as curtilage has the

power to exclude others from the area.

            The Court of Appeals ruling was fatally flawed because it failed to address

the key determining factor of whether Appellee had the power to exclude others

from the passageway outside his apartment. The Court of Appeals instead relied

upon the fact that Appellee’s apartment was the only apartment on the upper-left

side of the building and on the fact that other apartment residents at this complex

placed objects such as plants or chairs in the area outside of their apartments to

establish the disputed area as a curtilage area. Rendon, 13-13-00665 at 8. Neither

of those factors are relevant though in determining what constitutes a curtilage area

and thus they should not have been considered by the Court of Appeals.

            Curtilage is not established merely by having the right to store or abandon

property in an area. An apartment might allow you to grow flowers in a common

area, but that does not mean you can tell others they cannot come along and smell

the flowers.                 The area itself remains common to all people lawfully on the

apartment grounds regardless of whether some of your possessions are located in
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                  13
that area. Nor is curtilage established simply by being the only domicile near a

location. The test is not how many neighbors you have, rather it is do you have the

right to keep others from entering that area. If you do not have the power to

exclude others from entering the area than it does not matter that you are the only

apartment located along that passageway. You still do not have a zone of privacy

in that location because the location can lawfully be intruded into by others at any

time for any reason. It is only the power of exclusion that truly establishes that an

area “harbors the intimate activity associated with the sanctity of a man’s home and

the privacies of life.” Therefore any analysis of whether an area is in the curtilage

or not should first establish whether the claimant has power of exclusion over that

area. If they do not have such authority then that location is not part of that

curtilage. By failing to consider that threshold question, the Court of Appeals

analysis was fatally flawed and must be reversed.

            The Court of Appeals analogized the passageway leading to Appellee’s

apartment with the front-porch of a free standing home. Rendon, 13-13-00665 at

8. This analogy was flawed because with a porch on a free-standing home the

home owner has total legal authority to tell intruders to get off his porch. The

porch is on his property, under his control, and thus he has the same power of

exclusion over the porch that he has over his living room. As such since the home

owner has control over who has access to the porch, it is perfectly reasonable for it
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                             14
to be included within the curtilage of his home.

            By contrast the apartment dweller does not have comparable authority to tell

intruders to depart the passageway even when it is outside his own apartment.

Regardless of how close it runs to his apartment the passageway is still a common

area of the apartment as open to the public as any other common areas of the

apartment, and thus the apartment dweller has no more authority to tell others to

leave the passageway than he does to tell others to leave the apartment laundry

room. One of the trade offs of living as a renter in an apartment complex is that

you generally lack the power to legally exclude that a home owner possesses and

thus you cannot claim the same level of privacy interest in the approaches to an

apartment that a home owner can claim in the approaches to their home.

            Justice Scalia in the Jardines case cited the example of a person with a metal

detector coming on to your property as being the type of intrusion that is outside of

what is socially acceptable. Jardines, 133 S.Ct. at 1416. That example can also be

used to highlight the critical difference between a home dweller and an apartment

dweller in determining the presence of curtilage. A home dweller if confronted by

such an errant treasure hunter would be well within their rights to order the person

off their property and to have the intruder arrested for criminal trespass if they did

not then depart. An apartment dweller though would not generally have that same

authority. So long as our hypothetical metal detector wielder (or more likely a Girl
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                  15
Scout attempting to sell cookies) was otherwise on the apartment grounds legally,

and the apartment did not otherwise have rules restricting which common areas

guests could enter, then the treasure hunter would have the exact same right to

stand outside an apartment door as the apartment dweller them self has. The

apartment dweller could certainly ask them to leave and could perhaps call the

apartment manager and ask for them to order the person away from their door, but

the apartment dweller has no authority themselves to order the person away or to

swear out a criminal trespass complaint against the treasure hunter because the

apartment dweller does not have control of the area of the apartment beyond their

front door. That area is the common area where everyone who is on the apartment

grounds legally has equal right to be, and thus cannot be considered part of the

curtilage of any apartment dweller’s apartment. Allowing people to claim curtilage

rights over areas where they do not even have authority over who is allowed to

enter would be to dangerously expand the curtilage doctrine and would effective

eviscerate the Evans principle that the curtilage does not include common areas of

apartment complexes.

            It must also be noted that other state jurisdictions have already concluded

that exclusive control is essential for establishing the existence of a curtilage zone.

The Supreme Court of North Dakota noted that “the curtilage of an apartment

house does not extend beyond the resident’s own apartment and any separate areas
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                               16
subject to his exclusive control.” State v. Nguyen, 2013 ND 252, 841 N.W. 2d 676,

682 (N.D. 2013)(emphasis added). The Supreme Judicial Court of Massachusetts

held the same and also noted that merely because a tenant has a right to use a

common area does not give him a right of privacy in that common area because the

tenant does not have exclusive control over the common area. See Commonwealth

v. Thomas, 358 Mass. 771, 267 N.E. 2d 489, 491 (1971). Furthermore at least one

Federal circuit court has also cited a requirement of exclusive control to establish a

curtilage zone. See United States v. Cruz Pagan, 537 F. 2d 554, 558 (1st Cir. 1976).

That is a logical requirement, and Texas should now join with those other

jurisdictions in establishing a similar requirement for exclusive control (i.e. the

ability to legally exclude others from entering or remaining in the area) as a

threshold requirement for establishing a curtilage zone in apartment complexes.

            Now obviously there could be situations where an apartment granted control

over the passageways to their residents and gave them the authority to exclude

others, and if that was done then such an area would constitute the curtilage of that

apartment, and it would convey the same protections to its residents that the

curtilage area of a house provides to the home owner. However, there is no

evidence in the present case that Appellee had any such grant of authority over the

area outside his apartment. Quite the contrary: the evidence presented at the

hearing established that the apartment dwellers in Appellee’s complex did not have
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                              17
any legal authority to exclude others from the grounds other than from their own

apartments.                 Witness Donald Crook, who testified about life at Appellee’s

apartment complex, specifically noted that he had the power to order people off of

the grounds because he worked for the manager. [RR-II-73]. Thus Mr. Crook

made it clear that the authority to exclude unwanted people from the apartment

grounds stemmed not from being a tenant at the complex but solely as an exercise

of authority as an employee of the apartment complex. Likewise when asked by

Appellee if he could keep people from coming to his apartment’s door, Mr. Crook

instead indicated that his authority was only to keep them from coming into his

actual apartment. [RR-II-75]. Thus from Appellee’s own witness it was clear there

was no authority for tenants at this complex to exclude people from the

passageways leading up to their apartments. The tenant’s authority of exclusion

only covered keeping unwanted visitors from entering into their actual apartments

and did not extend beyond that into the areas near but outside of their apartments.

Thus since the apartment residents lack any control over the space beyond their

apartment, that space must be part of the common area, which means it cannot be

considered a curtilage area.

            Therefore Detective Stover and Baco were not in a curtilage zone when they

conducted their open air sniff, and as such the sniff did not implicate Appellee’s

Fourth Amendment rights. The investigating officer and his canine partner were
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                 18
standing in a common area where they had the exact same right to be as Appellee

himself, and thus the evidence they obtained from that location was legally

obtained, and thus formed a proper basis for supporting the search warrant in this

case. The Court of Appeals’s decision to the contrary was based upon applying an

improper analysis for determining what constitutes a curtilage area since their

analysis failed to properly consider the critical factor of whether the claimant had

the authority to exclude others from the area.

            This petition should therefore be granted, so the Court of Criminal Appeals

can definitively establish the proper factors to be considered by lower courts in

evaluating whether a location is part of a curtilage area or not. Guidance on this

point will decide an important question of state and federal law that has not been

but should be settled by the Court of Criminal Appeals. Furthermore, a definite

standard on what factors to consider in determining the curtilage area of apartment

complexes will give invaluable guidance to law enforcement agents on when they

can and cannot legally conduct open air canine sniffs on apartment grounds for

future cases which will help guarantee greater efficiency in future law enforcement

operations and reduced litigation in the court system. As such it will serve the

interests of justice for this petition to be granted. And since the curtilage definition

provided by the Supreme Court in the Dunn case logically requires that a party

have the power to exclude others from an area in order for that area to be
Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                               19
considered curtilage, the State would ask this Honorable Court to definitively

establish what is already implicitly required by Dunn: that any finding of curtilage

on apartment complex grounds must first include a determination that the

apartment owner had the legal authority to exclude others from the area claimed to

be curtilage. The power to exclude from an area is logically necessary for that area

to meet the definition of curtilage established by the United States Supreme Court,

and by failing to apply that requirement in this case the Court of Appeals ruling

was clearly in error and must be reversed.




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                            20
                                                PRAYER FOR RELIEF

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court grant this Petition for Discretionary Review and reverse the

decision of the Court of Appeals.




                                                    Respectfully submitted,


                                                    STEPHEN B. TYLER
                                                    CRIMINAL DISTRICT ATTORNEY



                                                    /s/ Brendan W. Guy
                                                    Brendan W. Guy
                                                    Assistant Criminal District Attorney
                                                    SBN 24034895
                                                    205 North Bridge Street, Suite 301
                                                    Victoria, Texas 77902
                                                    Telephone: (361) 575-0468
                                                    Facsimile: 361 (576)-4139


                                                    ATTORNEYS FOR THE APPELLANT,
                                                    THE STATE OF TEXAS




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                           21
                                           CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in Appellant’s Petition for Discretionary Review

submitted on December 31, 2014, excluding those matters listed in Rule 9.4(i)(3) is

3,012.



                                                      /s/ Brendan W. Guy
                                                      BRENDAN W. GUY
                                                      Assistant Criminal District Attorney
                                                      SBN 24034895
                                                      205 N. Bridge St., Suite. 301
                                                      Victoria, TX 77901
                                                      Telephone: (361) 575-0468
                                                      Facsimile: 361 (576)-4139


                                                       ATTORNEY FOR APPELLANT,
                                                       THE STATE OF TEXAS




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                        22
                                                CERTIFICATE OF SERVICE

            I certify that a true and correct copy of Appellant’s Petition for Discretionary

Review has been served on Edward Bartolomei, Attorneys for Appellee, and on Lisa

McMinn, State Prosecuting Attorney, by depositing same in the United States Mail,

postage prepaid on the day of December 31, 2014.



                                                          /s/ Brendan W. Guy
                                                          BRENDAN W. GUY
                                                          Assistant Criminal District Attorney
                                                          SBN 24034895
                                                          205 N. Bridge St., Suite. 301
                                                          Victoria, TX 77901
                                                          Telephone: (361) 575-0468
                                                          Facsimile: 361 (576)-4139


                                                          ATTORNEY FOR APPELLANT,
                                                          THE STATE OF TEXAS




Appellant’s Petition for Discretionary Review
Victoria County Criminal District Attorney
No. 13-13-00665-CR
                                                                                            23
                                          APPENDIX

                                      Table of Contents

Dec. 4, 2014 Judgment
in Cause Number 13-13-00665-CR,
State of Texas v Michael Eric Rendon ...................................................A-2

Dec. 4, 2014 Memorandum Opinion
in Cause Number 13-13-00665-CR
State of Texas v Michael Eric Rendon ......................................... A-3-A-13




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                   THE THIRTEENTH COURT OF APPEALS

                                    13-13-00665-CR


                               THE STATE OF TEXAS
                                       v.
                              MICHAEL ERIC RENDON


                                  On Appeal from the
                     377th District Court of Victoria County, Texas
                            Trial Cause No. 12-8-26805-D


                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court

orders the judgment of the trial court AFFIRMED.

      We further order this decision certified below for observance.

December 4, 2014




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                    NUMBERS 13-13-00665-CR & 13-13-00666-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                       Appellant,

                                                    v.

MICHAEL ERIC RENDON,                                                                       Appellee.


                        On appeal from the 377th District Court
                              of Victoria County, Texas.


                                          OPINION
                 Before Justices Rodriguez, Garza, and Benavides
                          Opinion by Justice Benavides

          By four issues, which we consolidate into one, the State of Texas appeals the trial

court’s orders granting appellee Michael Eric Rendon’s motions to suppress.1 We

affirm.


          1   These cases have been consolidated for the purposes of this opinion on appeal.




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                                              I. BACKGROUND

        On May 8, 2012, Victoria, Texas police officers conducted a drug investigation at

an apartment complex located on Bingham Street following a confidential informant’s tip.

The police’s target suspect was Rendon, who was a resident of the apartment complex.

Victoria Police Detective Jason Stover and his police-trained dog, Baco, assisted other

officers in the investigation.

        Detective Stover testified that Baco initially conducted a warrantless “open-air

sniff” of the exterior of Rendon’s parked vehicle, which was located in the apartment

complex’s parking lot. Following the sniff, Baco exhibited a “positive alert to the

presence of narcotics.” At that point, other Victoria police officers approached

Rendon’s apartment, but Rendon exited his apartment and greeted the officers before

they were able to knock on his apartment door.2

        The other officers spoke to Rendon outside of his apartment, and the officers later

advised Detective Stover “by radio” to approach Rendon’s residence with Baco.

Detective Stover and Baco arrived at Rendon’s apartment door, and Baco again

conducted a warrantless sniff of the apartment’s door and “alerted [Detective Stover] to

the odor of illegal narcotics.” After the positive alert, Detective Stover returned Baco to

his police unit and joined the other officers outside of Rendon’s apartment. Police

officers then requested Rendon’s consent to search his apartment, but Rendon declined.

Detective Stover testified that because Rendon declined consent to search his


        2   The record establishes that the rectangular building holds four separate apartment units over two
floors. The first two units are located on the ground floor, and the remaining two units are located on the
second floor. A straight continuous staircase leads visitors and residents to the second floor. At the
stairway’s landing, the path splits left and right. Each second-floor apartment has a patio area immediately
in front of its doorway. Rendon’s apartment was located on the left side of the second floor.

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apartment, he applied for a search warrant of Rendon’s apartment and vehicle. In his

search warrant application affidavit, Detective Stover noted Baco’s “positive” alerts to the

odor of narcotics from the “open-air sniff” outside of Rendon’s vehicle, as well as after

sniffing the “bottom left portion” of Rendon’s apartment door. Detective Stover’s

application for the search warrant was granted by a magistrate and executed the same

day.

       The record is unclear as to what exactly was seized from Rendon’s vehicle or

apartment following the execution of the search warrant. However, in appellate cause

number 13-13-00665-CR, a Victoria County grand jury indicted Rendon for possession

of marijuana in an amount of five pounds or less but more than four ounces, a state jail

felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through 2013

3d C.S.). In appellate cause number 13-13-00666-CR, the same grand jury indicted

Rendon for money laundering, a state jail felony. See TEX. PENAL CODE ANN. §

34.02(e)(1) (West, Westlaw through 2013 3d C.S.).

       After his arrest, Rendon was charged with possession of marijuana and money

laundering and filed a motion to suppress in each respective case. Rendon sought to

suppress, in relevant part, any and all evidence that was seized by the Victoria Police

Department pursuant to the execution of Detective Stover’s search warrant. Rendon

attacked the warrant on Fourth and Fourteenth Amendment grounds, see U.S. CONST.

amends IV, XIV, as well as under Article I, Sections 9, 10, and 19 of the Texas

Constitution. See TEX. CONST. art. I, §§ 9, 10, 19. Specifically, Rendon asserted that

Detective Stover’s affidavit lacked probable cause to support the search and arrest. At

the consolidated suppression hearing, Rendon’s counsel argued that Baco’s sniff of



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Rendon’s apartment door was an unconstitutional search under the Fourth Amendment,

and thus, insufficient probable cause supported the warrant. The trial court agreed and

granted Rendon’s motions.

       In its identical orders granting Rendon’s motions to suppress, the trial court issued

findings of fact and conclusions of law and found that Baco searched the “curtilage” of

Rendon’s apartment and that such a search was illegal under the Fourth Amendment,

citing Florida v. Jardines, 133 S.Ct. 1409, 1417–18 (2013). The trial court further

concluded that after excluding the tainted search from Detective Stover’s affidavit, the

remaining information did not establish probable cause to issue a warrant to search

Rendon’s apartment. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(5).

                                       II. MOTION TO SUPPRESS

       By one consolidated issue, the State asserts that the trial court erred by granting

Rendon’s motions to suppress.3

A.     Standard of Review

       We review a trial court’s ruling on a motion to suppress by using a bifurcated

standard of review, where we give almost total deference to the historical facts found by

       3 The State presented four issues for our review. For brevity, we will address each of the four
issues under one analysis. See TEX. R. APP. P. 47.1. The State’s original four issues were stated as
follows:

       (1) Is the standard of review in this case de novo?

       (2) Is the passageway leading up to an apartment part of the common area of the
           apartment or part of the curtilage of the apartment?

       (3) Did the trial court commit reversible error by finding that [Rendon] had met his burden
           to show that the search warrant against him was invalid?

       (4) Did the State procedurally default by not asserting that the passageway from the
           stairway to [Rendon’s] apartment was not part of the curtilage at the trial level?

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the trial court and review de novo the trial court’s application of the law to those facts.

State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford the same amount of deference to

trial courts' rulings on application of law to fact questions, also known as “mixed

questions of law and fact, if the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997).

       A defendant who alleges a violation of the Fourth Amendment has the burden of

producing evidence that rebuts the presumption of proper police conduct. State v.

Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). He may carry this burden by

establishing that the search or seizure occurred without a warrant. Id. The burden

then shifts to the State to prove the reasonableness of the search or seizure.   Id.

B.     Discussion

       We first examine whether Rendon carried his burden to rebut the presumption of

proper police conduct. Rendon argues that the affidavit presented to the magistrate

lacked probable cause because it was based on an unconstitutional sniff by Baco, and

the remaining information in the affidavit was erroneous and insufficient to support a

finding of probable cause.

       A magistrate shall not issue a search warrant without first finding probable cause

that a particular item will be found in a particular location. McLain, 337 S.W.3d at 272.

Probable cause exists when, under the totality of the circumstances, there is a fair

probability that contraband or evidence of a crime will be found at the specific location.

Id.   When the trial court determines whether probable cause exists to support the

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issuance of a search warrant, there are no credibility determinations; rather, the trial

court is constrained to the four corners of the affidavit. Id. at 271. When reviewing a

magistrate’s decision to issue a warrant, we apply a highly deferential standard because

of the constitutional preference for searches to be conducted pursuant to a warrant. Id.

As long as the magistrate had a substantial basis for concluding that probable cause

existed, we will uphold the magistrate’s probable cause determination.   Id.

      An evaluation of the constitutionality of a search warrant should begin with the

rule that “the informed and deliberate determinations of magistrates empowered to issue

warrants are to be preferred over the hurried action of officers who may happen to make

arrests.” Id. at 272. When reviewing the issuing magistrate’s determination,         we

interpret the affidavit in a commonsensical and realistic manner, rather than a

hypertechnical manner, recognizing that the magistrate may draw reasonable

inferences.    Rodriguez v. State, 232 S.W.3d 55, 59–61 (Tex. Crim. App. 2007).

      1. Dog Sniff

      Rendon first argues that the State lacked probable cause to obtain a search

warrant because the basis for the warrant was an unconstitutional search by Detective

Stover with Baco at Rendon’s door. The United States Supreme Court recently

addressed the constitutionality of the use of drug-sniffing dogs in Florida v. Jardines.

133 S.Ct. at 1414–18. In Jardines, the Court reiterated that “when ‘the Government

obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a

search within the original meaning of the Fourth Amendment’ has ‘undoubtedly

occurred.” Id. at 1414 (quoting United States v. Jones, 132 S.Ct. 945, 950–51 n.3

(2012)).      The Jardines Court further noted that when it comes to the Fourth

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Amendment, the home is “first among equals,” because at the Amendment’s “very core,”

stands “the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.” Id. (quoting Silverman v. United States, 365

U.S. 505, 511 (1961)).

       Additionally, the United States Supreme Court has recognized that the “curtilage,”

or the area immediately surrounding and associated with the home, is “‘part of the home

itself for Fourth Amendment purposes.’” Id. (quoting Oliver v. United States, 466 U.S.

170, 180 (1984)). The Court noted that “[w]hile the boundaries of the curtilage are

generally ‘clearly marked,’ the ‘conception defining the curtilage’ is at any rate familiar

enough that it is ‘easily understood from our daily experience.’”   Id. (quoting Oliver, 466

U.S. at 182, n.12). Utilizing these principles, the Jardines Court upheld the Florida

Supreme Court’s holding that the Miami-Dade Police Department’s use of trained police

dogs to investigate a home and its immediate surroundings was a “search” within the

meaning of the Fourth Amendment that was unsupported by probable cause, rendering

the warrant invalid. See id. at 1417–18; see also Jardines v. State, 73 So.3d 34, 55–56

(Fla. 2011).

       We now turn to the facts of the present case. Detective Stover’s testimony

reveals that he used Baco to conduct a warrantless search of Rendon’s apartment door

at the request of other officers who were speaking to Rendon at the time outside of

Rendon’s apartment. Detective Stover provided no other reason to support the

warrantless search. Rendon argues that this sniff search occurred in the curtilage of his

apartment, and was, thus, unreasonable under Jardines and the Fourth Amendment.

The State argues that because Baco’s sniff occurred in the passageway leading up to

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Rendon’s apartment, it was a “common area” of the apartment complex and not

protected by the Fourth Amendment.      We agree with Rendon.

       According to Detective Stover’s testimony and affidavit requesting a search

warrant, Baco sniffed the “bottom left portion” of Rendon’s apartment door and indicated

the odor of narcotics “from within” Rendon’s apartment. However, facts from the record

support Rendon’s curtilage argument, including that (1) Rendon’s apartment was the

only apartment on the upper-left side of the building; (2) Rendon’s neighbor, John Crook,

who lives in the apartment on the upper-right side of the building, testified that he hangs

plants along the railing in front of his apartment; and (3) Defendant’s Exhibit 3, a

photograph of Rendon’s apartment building taken from the parking lot, depicts that

Rendon’s downstairs neighbor has chairs in the area immediately in front his apartment

as well. Logically, this means that at the time of Baco’s sniff, Rendon’s door was

closed, and the sniff occurred immediately in front of the apartment’s door. Based on

this record, we conclude that the area immediately in front of Rendon’s apartment is no

different from the front porch of a free-standing home. Thus, bringing a trained police

dog to sniff the bottom left portion of Rendon’s apartment door in hopes of discovering

incriminating evidence exceeded the scope of any express or implied license allowed

under the Fourth Amendment. See Jardines, 133 S.Ct. at 1416 (noting that “the

knocker on the front door is treated as an invitation or license to attempt an entry,

justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”).

       The State misplaces its reliance on our sister court’s holding in Evans v. State,

995 S.W.2d 284, 285–87 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) to support its

“common area” argument. We find Evans distinguishable and inapplicable.           In Evans,

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the appellant sought to suppress evidence obtained from a search of her apartment on

the basis that officers entered her apartment complex’s common areas in an

unauthorized manner. Id. at 286. The present case does not deal with the common

areas of an apartment complex, as discussed in Evans, such as parking lots and

sidewalks, but rather the curtilage of Rendon’s apartment. Therefore, we hold that

police conducted an unreasonable search by using a trained police dog to investigate the

curtilage of Rendon’s apartment. See U.S. CONST. IV; TEX. CONST. art. I, § 9; see also

Jardines, 133 S.Ct. at 1417–18.

      2. Residual Probable Cause

      Despite our holding that police conducted an unreasonable search of Rendon’s

home and used the tainted search results to establish probable cause in order to obtain a

search warrant, we must continue our inquiry and “put aside all tainted allegations” to

determine whether the remaining independently acquired and lawful information stated

in the affidavit clearly established probable cause.     See McClintock v. State,

S.W.3d      , No. PD–0925–13, at *3 (Tex. Crim. App. Oct. 1, 2014) (recognizing the

principle of “residual probable cause” as stated in Castillo v. State, 818 S.W.2d 803, 805

(Tex. Crim. App. 1991), overruled on other grounds by Torres v. State, 182 S.W.3d 899,

901–02 (Tex. Crim. App. 2005)).

      In the remainder of his probable cause affidavit, Detective Stover stated that

Victoria police officers conducted a drug investigation at Rendon’s apartment complex

on May 8, 2012. Detective Stover stated that in the parking lot of the complex, Baco

conducted a sniff test upon a parked white Coors Lite Hartman Distributing Chevrolet

HHR and a parked red four-door Cadillac.    According to the affidavit, Baco displayed an

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“extreme change in behavior and breathing” when he sniffed the Chevrolet vehicle,

indicating a “positive alert to the odor of narcotics from within.” Detective Stover also

provided the following information in his affidavit:

       Prior to [the May 8, 2012] investigation, a confidential informant working
       under the direction [sic] purchased a large amount of cocaine from an
       individual whose supplier arrived from another location to the buy location.
       On the first purchase of cocaine, the supplier showed up in a red 4 door
       vehicle. The surveillance vehicle was too far away at this time to make
       out the model of the vehicle.

       During the second buy, a Hartman Distributing HHR showed up and
       supplied cocaine to the “middle man” who in turn was given the money for
       the cocaine by the confidential informant.

       A license plate was obtained off of the Harman Distributing [sic] by SCU
       personnel. Sgt. Jameson contacted the owner of Hartman Distributing
       and requested to know who had been driving the vehicle on this date.
       The owner advised that Michael Rendon had been driving the vehicle on
       the date of the confidential informant’s purchase of cocaine.

       Surveillance was conducted on this location following this information
       being provided. At this time, SCU personnel learned that Michael Rendon
       also owned and operated a red 4 door Cadillac.

       After reviewing the four corners of the affidavit “in a commonsensical and realistic

manner,” see Rodriguez, 232 S.W.3d at 59–61, and giving the appropriate deference to

the magistrate, see McLain, 337 S.W.3d at 271, we cannot conclude that the remaining

“independently acquired and lawful information stated in the affidavit” clearly establishes

probable cause to search Rendon’s apartment. After setting aside Baco’s sniff of

Rendon’s apartment door, the remaining allegations contained in Detective Stover’s

affidavit focus on establishing Rendon’s identity and his use of the Chevrolet vehicle to

transport drugs. Nothing in the remainder of the affidavit establishes that under the

totality of the circumstances, there was a fair probability that contraband or evidence of a

crime would be found inside of Rendon’s apartment.        See id. at 272. Therefore, we
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conclude that the magistrate did not have a substantial basis for concluding that

probable cause existed to search Rendon’s apartment.

       3. Summary

       In sum, we conclude that Rendon met his burden to rebut proper police conduct.

Under Jardines, Detective Stover conducted an unreasonable search of Rendon’s home

by entering the curtilage of Rendon’s apartment and using a trained dog to sniff

Rendon’s door to find incriminating evidence. Furthermore, after “putting aside” the

information derived from the dog sniff from the search warrant affidavit, we cannot

conclude that the affidavit clearly established probable cause to search Rendon’s

apartment. Without probable cause, the search warrant was invalid. The State’s sole

issue on appeal is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s orders granting Rendon’s motions to suppress.




                                                       GINA M. BENAVIDES,
                                                       Justice


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

Delivered and filed the
4th day of December, 2014.




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