                                                                                       PD-0013-15
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
March 3, 2015                                                        Transmitted 3/2/2015 2:24:09 PM
                                                                       Accepted 3/3/2015 8:02:03 AM
                                                                                        ABEL ACOSTA
                                    NO. PD-0013-15                                              CLERK

                     IN THE COURT OF CRIMINAL APPEALS
                            OF THE STATE OF TEXAS
                _______________________________________________

                              THE STATE OF TEXAS,
                                            Appellant,
                                      v.

                            MICHAEL ERIC RENDON,
                                             Appellee.
                ________________________________________________

                      On Appeal from Cause Number 12-8-26805-D
                In the 377th Judicial District Court of Victoria County and
                              Cause Number 13-13-00665-CR
          In the Court of Appeals for the Thirteenth Judicial District of Texas.
               ________________________________________________
                               BRIEF FOR THE STATE

                                STEPHEN B. TYLER
                               Criminal District Attorney
                                Victoria County, Texas

                             BRENDAN WYATT GUY
                          Assistant Criminal District Attorney
                                Victoria County, Texas
                              205 N. Bridge St. Ste. 301,
                             Victoria, Texas 77901-6576
                                brendan.guy@vctx.org
                                    (361) 575-0468
                                 (361) 570-1041 (fax)
                                State Bar No. 24034895
                                      (On Appeal)

                            Attorneys for the State of Texas


                         ORAL ARGUMENT REQUESTED
                              IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:

APPELLANT                                         The State of Texas

APPELLEE                                          Michael Eric Rendon

TRIAL JUDGE                                       The Honorable Robert Cheshire
                                                  377th Judicial District Court
                                                  Victoria, Texas

TRIAL PROSECUTORS                                 James Pink Dickens
                                                  State Bar No.05818800
                                                  Assistant Criminal District Attorney
                                                  205 N. Bridge St. Ste 301
                                                  Victoria TX 77901-6576

TRIAL DEFENSE ATTORNEY                            Edward A. Bartolomei
                                                  State Bar No. 01852470
                                                  420 Baltimore Avenue
                                                  San Antonio, TX 78215

APPELLATE STATE’S                                 Brendan Wyatt Guy
ATTORNEY                                          State Bar No. 24034895
                                                  Assistant Criminal District Attorney
                                                  205 N. Bridge St. Ste 301
                                                  Victoria, TX 77901-6576

APPELLATE DEFENSE                                 Edward Francis Shaughnessy, III
ATTORNEYS                                         State Bar No. 18134500
                                                  206 E. Locust
                                                  San Antonio, TX 78212




Brief of Appellant                           ii
Victoria County Criminal District Attorney
No. PD-0013-15
                                             TABLE OF CONTENTS

                                                                                                PAGE (S)

IDENTITY OF PARTIES & COUNSEL ............................................... ii

TABLE OF CONTENTS ....................................................................iii-iv

INDEX OF AUTHORITIES ............................................................... v-vii

STATEMENT OF THE CASE............................................................. 2-3

ISSUES PRESENTED.............................................................................. 3

     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 ............................... 3

STATEMENT OF THE FACTS .......................................................... 3-6

SUMMARY OF ARGUMENT ............................................................. 6-8

ARGUMENT ........................................................................................ 8-27

       I. The standard of review for this case is de novo ........................... 8

      II. 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 .............................................. 9-21

   III. A free air sniff conducted from a common area of an
        apartment does not violate a suspect’s Fourth
        Amendment rights .................................................................. 21-27

PRAYER .................................................................................................. 28

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No. PD-0013-15
SIGNATURE ........................................................................................... 29

CERTIFICATE OF COMPLIANCE ................................................... 29

CERTIFICATE OF SERVICE ............................................................. 30




Brief of Appellant                                 iv
Victoria County Criminal District Attorney
No. PD-0013-15
                                             INDEX OF AUTHORITIES

                                      United States Supreme Court Cases

California v. Ciraolo, 476 U.S. 207 (1986) ............................................. 25

Florida v. Jardines, 133 S.Ct. 1409 (2013) ....... 9, 11-12, 18, 22-23, 26-27

Illinois v. Cabales, 543 U.S. 405, 409 (2005) ............................................ 9

Katz v. United States, 389 U.S. 347 (1967) ....................................... 11, 22

Kyllo v. U.S., 533 U.S. 27 (2001) .............................................. 8, 24-25, 27

Oliver v. U.S., 466 U.S. 170 (1984) ......................................................... 10

United States v Dunn, 480 U.S. 294 (1987) ................................. 10, 13-16



                                             Federal Circuit Court Cases

Horton v. Goose Creek Independent School Dist.,
690 F.2d 470 (5th Cir. 1982) .................................................................... 22

United States v. Cruz Pagan, 537 F. 2d 554 (1st Cir. 1976) ................... 13



                                                    Texas Cases

Albro v. State, 502 S.W. 2d 715 (Tex. Crim. App. 1973) ...................... 22

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) ................. 8

Chiarini v. State, 442 S.W. 3d 318 (Tex. Crim. App. 2014) ................. 17

Evans v. State, 995 S.W. 2d 284
(Tex. App. –Houston (14th Dist.) 1999, pet. ref’d) ..................... 10-11, 21
Brief of Appellant                                       v
Victoria County Criminal District Attorney
No. PD-0013-15
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 1992) ...................... 8

Matthews v. State, 165 S.W. 3d 104
(Tex. App.-Ft. Worth 2005, no pet) ....................................................... 11

Ochs v. State, 543 S.W. 2d 355 (Tex. Crim. App. 1976) ....................... 22

State v. Rendon, 13-13-00665
(Tex. App.-Corpus Christi, Dec. 4, 2014, pet. granted)............. 3, 13, 16

State v. Rendon, 13-13-00666
(Tex. App.-Corpus Christi, Dec. 4, 2014, pet. granted)......................... 3

State v. Steelman, 93 S.W. 3d 102 (Tex. Crim. App. 2002) .................. 23

State v. Weaver, 349 S.W. 3d 521 (Tex. Crim. App. 2011)............... 9, 23

Swearingen v. State, 143 S.W. 3d 808 (Tex. Crim. App. 2004).............. 8



                                                 Other State Cases

Commonwealth v. Thomas, 358 Mass. 771,
267 N.E. 2d 489 (1971) ............................................................................ 12

State v. Nguyen, 2013 ND 252, 841 N.W. 2d 676 (N.D. 2013) .............. 12



                                             United States Constitution

U.S. CONST. amend. IV.....................................................9-12, 21-22, 27




Brief of Appellant                                      vi
Victoria County Criminal District Attorney
No. PD-0013-15
                                             Texas Rules

TEX. R. APP. 9.4..................................................................................... 29

TEX. R. APP. 38.1..................................................................................... ii




Brief of Appellant                                  vii
Victoria County Criminal District Attorney
No. PD-0013-15
                                                 NO. PD-0013-15

                               IN THE COURT OF CRIMINAL APPEALS
                                     OF THE STATE OF TEXAS

THE STATE OF TEXAS,…………………………………………Appellant

v.

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

                                                   * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                   * * * * *

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 presents to this Court its brief

on the merits in the named cause.

                                             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 Appellee filed a motion to suppress. [CR-I-2-4].

On June 14, 2013, the Appellee filed two addition motions to suppress.

[CR-I-6-12]. A hearing was held on those motions to suppress on October

Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                       2
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-13]. The State timely filed its notice of appeal

on December 3, 2013. [CR-I-15-18]. 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.

                                                ISSUES PRESENTED

      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.


                                             STATEMENT OF THE FACTS

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

Jason Stover of the Victoria Police Department.                    [RR-II-7].   Detective

Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                       3
Stover established 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 of the apartment 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].



Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             4
            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].

            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
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Victoria County Criminal District Attorney
No. PD-0013-15
                                             5
court believed that since Appellee’s apartment was the only apartment on the

left side of the stairway 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 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].

                                        SUMMARY OF THE ARGUMENT

            Since this appeal turns on questions of law, the standard of review for

this case is de novo.

            At issue is the validity of the “Plain View/Smell/Touch Doctrine”

when law enforcement makes observations from a lawful vantage point. The

legality of the free air sniff conducted on Appellee’s apartment depends on

whether the investigating officer-canine team was in a common area of the

apartment complex or in a curtilage area when they conducted their free air

sniff. The Court of Appeals decision found the free air sniff was conducted

in a curtilage area. That conclusion was erroneous because the Appellee had

no power to exclude others from the area where the free air sniff was
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                   6
conducted, a lawful vantage point for law enforcement observations. Based

upon the established standard for determining if a location is a curtilage area,

the power to exclude others is a necessary prerequisite for an area to be

considered a curtilage area.                      As such the Court of Appeals erred in

permitting the Appellee to claim the protections of curtilage for an area

where he did not have the power to exclude others.

            Nor did Appellee have any other basis to justify suppression of the

free air sniff in this case. There is no reasonable expectation of privacy in

odors emanating from a residence and being observed in a common area

(lawful vantage point).                      Nor is there a blanket privacy protection for

residences or residences plus a no-observation buffer zone. As such if law

enforcement agents, standing at a lawful vantage point, detect contraband

based on odors emanating from a residence they are entitled to act upon that

information. Nor are officers prohibited from using dogs to conduct free air

sniffs on residences due to the Kyllo decision. Dogs are neither a new nor

restricted technology and thus do not trigger the restrictions set down by

Kyllo. Olfactory observation is not a technology but a sense just as vision

and touch. As such the free air sniff conducted by Detective Stover and

Baco was lawful and the evidence obtained as a result of that sniff should

not have been suppressed. If probable cause includes the totality of facts
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                      7
known and observed, then with this extension of the law demarcation

expected by citizens and recognized by law enforcement separates fair

observation from where law enforcement is to see, smell or sense no evil?

                                             ARGUMENT

I. The standard of review for this case is de novo.

            An appellate court is required to give almost total deference to the

trial court’s rulings on questions of historical fact and application of law to

fact questions that turn on evaluations of credibility and demeanor. Johnson

v. State, 68 S.W.3d 644, 652-653 (Tex. Crim. App. 1992).                     However,

application of law to fact questions that do not turn on credibility and

demeanor are instead reviewed de novo. Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000).                    Pure questions of law are likewise

reviewed de novo. Swearingen v. State, 143 S.W. 3d 808, 810 (Tex. Crim.

App. 2004).

            There are no factual disputes in this case. Rather the case turns on a

legal question: can a location near a residence be considered a curtilage area

when the resident does not have the power to exclude others from that

location?              As such since the critical question is a question of law the

standard of review for this case is de novo.



Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                8
II. 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 law as 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).                   As such the legality of the open air sniff of Appellee’s

apartment turns 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

in a curtilage area then the sniff was an unreasonable search, if not the sniff

was not a search and thus the information obtained from that action could be

used to support obtaining a search warrant for Appellee’s apartment.



Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                  9
            The United States Supreme Court has provided guidance in

determining when a location is in a curtilage area. Notably, while proximity

to the residence is a factor to consider in determining if a location is

curtilage, proximity by itself does not establish that a location is in the

curtilage. Instead the Supreme Court recommended considering four factors

in determining the extent of curtilage: 1) the proximity of the area to the

home; 2) whether the area is within an enclosure surrounding the home; 3)

the nature and uses to which the area is put, and 4) the steps taken by the

resident to protect the area from observation by passersby. United States v

Dunn, 480 U.S. 294, 301 (1987). The Supreme Court cautioned though that

these factors are not to be mechanically applied but rather are to be

employed as analytical tools to get at the ultimate question as to curtilage:

“whether the area in question is so intimately tied to the home itself that it

should be placed under the home’s umbrella of Fourth Amendment

protection.” Id. The central component of this inquiry is “whether the area

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

and the privacies of life.” See Oliver v. U.S., 466 U.S. 170, 180 (1984);

Dunn, 480 U.S. at 300. And under that strict standard it is understood that

common areas of an apartment are not part of the curtilage. See Evans v.

State, 995 S.W. 2d 284, 286 (Tex. App. –Houston (14th Dist.) 1999, pet.
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             10
ref’d); Matthews v. State, 165 S.W. 3d 104, 113 (Tex. App.-Ft. Worth 2005,

no pet).

            Based upon the Supreme Court’s long established 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 threshold determination

of if the apartment dweller has the power to exclude others from that

location. 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 intruders

can lawfully walk right up to them to observe what they are doing there. A

party simply must have the power to exclude outsiders from an area to be

safe to enjoy the privacies of life in that area, and as such a location where a

person does not have the power to exclude others from cannot be a curtilage

area, no matter how close that location might be to the party’s residence.

            Furthermore, the Supreme Court itself has implicitly recognized the

necessity of control over a location to claim it as curtilage, as the majority in

Jardines specifically chose to employ a “property-rights baseline” for

evaluating the Fourth Amendment issue in that case rather than decide the

case on Katz privacy grounds. See Jardines, 133 S.Ct. at 1417; Katz v.

United States, 389 U.S. 347 (1967). The Jardines majority emphasized that

a trespass had occurred against Mr. Jardines and concluded that the open air
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Victoria County Criminal District Attorney
No. PD-0013-15
                                             11
sniff in that case was a violation of the Fourth Amendment because “the

officer’s learned what they learned only by physically intruding on Jardines’

property.” See Jardines, 133 S.Ct. at 1417 (emphasis added). Thus while

property rights are not the sole measure of Fourth Amendment violations, it

does seem clear that at least as far as questions of curtilage it is essential to

have control over the claimed area for it to be your curtilage. If a location is

not yours then that location cannot be your curtilage, and the location is

obviously not yours if you have no authority to exclude others from it.

            Other states 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 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



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Victoria County Criminal District Attorney
No. PD-0013-15
                                             12
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).

            This requirement of control over a location in order to be able to claim

that location as curtilage is thus both logical and entirely consistent with

established Supreme Court precedent about what it takes to qualify as

curtilage. As such that requirement of exclusive control (i.e. the ability to

legally exclude others from entering or remaining in the area) should be

considered a threshold requirement for establishing a curtilage zone in all

Texas cases.

            The Court of Appeals ruling upholding the trial court’s grant of the

suppression motion failed to apply that threshold requirement of control to

its determination of the curtilage question and thus was in error. The Court

of Appeals instead primarily 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. See Rendon, 13-13-00665 at 8. Neither of those factors

are persuasive in determining the existence of a curtilage area.              They

certainly do not support the traditional Dunn factors (under which

Appellee’s only real argument for the disputed area being curtilage is its
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Victoria County Criminal District Attorney
No. PD-0013-15
                                             13
proximity to his apartment). Evidence that Appellee’s apartment was the

only apartment on that side of the stairwell and that other apartment

residents used the space near their apartments to store possessions does not

show that the disputed area was in an enclosure surrounding Appellee’s

residence, that Appellee was utilizing the disputed area for any purpose

closely associated with the home, or that Appellee had taken steps to protect

the area from observation by passersby. See Dunn, 480 U.S. at 301. But

even more critical, the factors cited by the Court of Appeals simply do not

establish Appellee possessed the level of control over the disputed area

necessary to have it qualify as curtilage.

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

abandon property in an area. After all people frequently store their property

in non-curtilage areas. (Many home owners might choose to keep furniture,

ornaments, lawn implements, a child’s bike or a ball in their front yard or

even in the easement of the street. The decision to do that does not make

those areas part of the home’s curtilage.) Likewise in an apartment context,

an apartment complex could easily allow its tenants to, as an example, grow

flowers in a common area, but that does not mean the botanical tenant would

have the right to tell others legally on the apartment grounds that they cannot

come along and smell those same flowers. Common areas remain common
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Victoria County Criminal District Attorney
No. PD-0013-15
                                             14
to all people lawfully on the apartment grounds regardless of whether some

of your possessions are located in that area or not. It is only when you have

the authority to deny to others the right to enter or remain in an area that you

truly have control over it. Otherwise even though your possessions might be

located in a common area their presence does not deny the right of others to

enter or remain in that same area, and as such merely storing one’s

possessions in an area is insufficient to show that “area harbors the intimate

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

life” which is necessary for a location to be curtilage. See Dunn, 480 U.S. at

300.

            Nor can curtilage be established simply by being the only domicile

near a location. The test for curtilage is not and should not be how many

neighbors you have. By analogy, a single home on a cul-de-sac does not

have curtilage interest in an otherwise public roadway. If a person has a

privacy right then they must have that right whether they have one neighbor

or one hundred. That is why the test for curtilage must turn on whether the

resident has exclusive control over the area claimed to be curtilage. If you

do not have the power to exclude others from entering the area then 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
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             15
can lawfully be intruded into by others at any time for any lawful reason. It

is only the power of exclusion that truly establishes the degree of control

needed for an area to harbor “the intimate activity associated with the

sanctity of a man’s home and the privacies of life.”

            Neither of the grounds cited by the Court of Appeals provides a legal

basis for concluding that Appellee had control over the location from which

Detective Stover and Baco conducted the free air sniff in this case.

Therefore those grounds did not establish the threshold necessary for that

location to be considered curtilage, and it was therefore error for the Court

of Appeals to conclude that area was curtilage.

            The Court of Appeals also analogized the passageway leading to

Appellee’s apartment with the front-porch of a free standing home. Rendon,

13-13-00665 at 8. That 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 the porch. The porch is on the home owner’s property, under their

exclusive control, and thus the home owner has the same power of exclusion

over the porch that they have over their bed room. Since the home owner

has control over who has access to the area around the porch, it is perfectly

reasonable for the porch to be included within the curtilage of their home (so

long as it also satisfies the other Dunn requirements for being curtilage.)
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             16
            By contrast the apartment dweller does not have comparable authority

to tell intruders to depart an apartment passageway even when the

passageway is right outside of their own apartment. Regardless of how close

it runs to their apartment the passageway is still a common area of the

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

Therefore the apartment dweller has no more authority to tell others to leave

the passageway than they have to tell others to leave the apartment laundry

room. Living in an apartment complex has many advantages, but there are

some draw backs as well, and one of those draw backs is a renter in an

apartment complex generally lacks the same powers of legal exclusion

possessed by a resident of a single resident on a lot with a single residence’s

control. As such renters in apartment complexes cannot claim the same

level of privacy interest in the approaches to their apartments that home

owners can claim in the approaches to their home. A renter’s interest in the

area around their residence is simply not as powerful as an owner’s. See

Chiarini v. State, 442 S.W. 3d 318, 322-323 (Tex. Crim. App. 2014) (noting

the lesser legal authority for renters compared to owners.) And if renters

have lesser legal authority over an area than owners, it is only logical they

would not be able to claim the same curtilage rights that a person who

actually owns an area may claim. As anyone with a sibling or roommate
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             17
could attest, communal living simply affords less privacy than solitary

living. The banality of this statement demonstrates further the lack of any

recognized reasonable expectation of privacy.

            An example of this difference in authority can be illustrated by

considering the metal detector wielding interloper that Justice Scalia used in

the Jardines case to illustrate the idea of an unacceptable intrusion into the

curtilage.              See Jardines, 133 S.Ct. at 1416.   A home dweller when

confronted by such an errant treasure hunter who was searching for gold

right next to their front door would be well within their rights to order the

treasure hunter off their property and to have them arrested for criminal

trespass if they did not then depart. The home owner has power of exclusion

over the area around their home and thus can order people out of that area.

            An apartment dweller though generally does not have that same

authority. So long as our hypothetical treasure hunter was otherwise on the

apartment grounds legally, and the apartment did not have rules restricting

which common areas visitors could enter, the treasure hunter would have the

exact same right to stand outside an apartment door as the apartment dweller

them self possesses. The apartment dweller could certainly ask the visitor to

leave and could perhaps call the apartment manager and ask for them to

order the treasure hunter away from their front door if the treasure hunter
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             18
refused to depart, but the apartment dweller them self has no intrinsic

authority to order the treasure hunter away or to swear out a criminal

trespass complaint against them if they refuse to leave because the apartment

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

door. Without the power to exclude others from an area, the apartment

dweller has no more authority over that location than any other person, and

because the apartment dweller lacks any true control over the area beyond

their front door, that area cannot be considered part of the curtilage of their

apartment but instead must be considered a common area of the apartment.

            Now obviously there could be situations where an apartment granted

control over the passageways near apartments to their residents and gave

them the authority to exclude others from those passageways, and if that was

done then such an area could constitute curtilage of those apartments, and it

would convey the same protections to its residents that the curtilage area of a

house provides to the home owner. (Apartment dwellers could certainly

negotiate as part of their lease conditions that they be given the power to

exclude others from coming within a certain number of feet from their

apartment, just as they can negotiate for a guaranteed parking space or the

right to keep a pet, or any number of other perks they might value.)

However, there is no evidence in the present case that Appellee had any such
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             19
grant of authority over the area outside his apartment. Quite the contrary: all

the evidence presented at the suppression hearing established that the

apartment dwellers in Appellee’s complex did not have 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 grant of authority for

tenants at this complex to exclude people from the passageways leading up

to their apartments. Instead the tenant’s authority of exclusion only covered

keeping unwanted visitors from entering into their actual apartments and did

not extend beyond their front doors into the areas outside of their

apartments. Thus since Appellee lacked any control over the space beyond



Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             20
his apartment door, that space was part of the common area of the apartment,

which means it cannot be considered a curtilage area.

            Allowing people to claim curtilage rights over areas where they do not

have authority over who is allowed to enter or remain would be to radically

expand the curtilage doctrine and would effective eviscerate the Evans

principle that curtilage does not include common areas of apartment

complexes.                  A curtilage zone is meant to protect only the most intimate

areas of private life. That is a well reasoned standard that balances people’s

interest in being protected in their homes with the public interest in effective

law enforcement. Homes and the areas close to them that are intimately

associated with the home deserve special protection, but areas that are open

to the public do not need and should not be included within that special

protection given to the home. As such the decision by the Court of Appeals

finding a curtilage area over a location where the Appellee did not have the

power to exclude others was plain error and should be reversed.

  III. A free air sniff conducted from a common area of an apartment
       does not violate a suspect’s Fourth Amendment rights.

            Furthermore, since Detective Stover and Baco were not inside a

curtilage area when they conducted their free air sniff, the sniff did not

implicate Appellee’s Fourth Amendment rights.                   People, not places, are

Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                 21
protected by the Fourth Amendment. Katz, 389 U.S. at 351. As such what a

person knowingly exposes to the public, even in their home, is not subject to

Fourth Amendment protection. Id. Nor can Appellee claim a reasonable

expectation of privacy in odors that emit from his residence. As Justice

Alito argued in his dissent in Jardines, “a reasonable person understands that

odors emanating from a house may be detected from locations that are open

to the public.” Jardines,133 S.Ct. at 1421 (dissenting op.)       Moreover, it is

well settled law that a residence, while certainly entitled to substantial

protection, is not exempt from warrantless surveillance from those observing

from a lawful vantage point.

            The plain view doctrine allows officers to enter into an apartment or

house when they observe narcotics inside the residence from a lawful

vantage point. See Albro v. State, 502 S.W. 2d 715, 716 (Tex. Crim. App.

1973) (police lawfully entered an apartment after observing marihuana

through the open front door); Ochs v. State, 543 S.W. 2d 355, 359 (Tex.

Crim. App. 1976) (police lawfully entered a house after observing

marihuana through an open door.) A comparable “plain smell” doctrine has

also been recognized. See Horton v. Goose Creek Independent School Dist.,

690 F.2d 470, 477 (5th Cir. 1982). Texas law does limit the application of

the plain smell doctrine in that an officer is not permitted to make a
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             22
warrantless entry into a residence based solely on the smell of narcotics. See

State v. Steelman, 93 S.W. 3d 102, 108 (Tex. Crim. App. 2002). However,

nothing in Steelman prohibits an officer from using lawfully obtained

olfactory observations as probable cause to obtain a warrant, and other

Texas cases acknowledge that probable cause can be obtained from smelling

the odor of suspected contraband. See Weaver, 349 S.W. 3d at 527-528.

            Furthermore, as already discussed, the Supreme Court considered but

did not adopt a comprehensive expectation of privacy justification for

prohibiting free air sniffs outside of residences. See Jardines, 133 S. Ct. at

1417.           Instead the Supreme Court decided the case on property rights

grounds. Id. The property rights approach is a well reasoned method that

balances society’s interest in effective law enforcement with the individual’s

right to be protected against unreasonable search and seizure within his

home.

            Adopting Justice Kagan’s proposed approach of prohibiting free air

sniffs on residences under a blanket privacy protection for residences would

effectively destroy the plain view/plain smell doctrine as to private

residences. After all if the police cannot use a canine to make olfactory

observations of a residence from a lawful vantage point then the same logic

would suggest officers cannot use their own sense of smell either. (If a
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             23
person has a privacy interest in not having the odors of their home smelled

by others that privacy interest should be the same whether the one smelling

those odors is a man or a dog.) And if an officer is not permitted to use his

sense of smell to determine what is happening inside a residence, then there

is little justification to let him use his vision either (which after all is a far

more intrusive sense than the sense of smell.) The Supreme Court rightfully

declined to adopt this approach, which would provide privacy protection far

beyond that which is reasonable, and Texas should likewise reject Justice

Kagan’s proposed privacy approach. A person cannot claim a reasonable

expectation of privacy in a residence when they reveal to the outside world

by sight, by smell, by hearing, or any other sense that they are keeping

contraband inside their home.                As such if an officer is able to detect

contraband (by any sense) from a lawful vantage point, than the officer is

and should be permitted to act upon that information to obtain a warrant.

            Now admittedly the Supreme Court has on occasion limited the means

by which police officer’s can conduct observations of private residences

even when the officer is acting from a lawful vantage point. The Kyllo case

saw the Supreme Court disavow the use of thermal imaging technology to

monitor the emissions from a home even though the officers were using the

device from a lawful vantage point. Kyllo v. U.S., 533 U.S. 27, 40 (2001).
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                               24
However, Kyllo specifically turned on the fact that the infrared imaging

technology at issue in that case was “not in general public use”, and saw the

majority express concern about leaving the homeowner “at the mercy of

advancing technology.”                       Id. at 34-35 and 40.   The implication is thus

necessarily that with a more widespread and long established technology the

result would have been different, and the search would have been

permissible.                 That is further supported by the Supreme Court’s earlier

Ciraolo decision which saw the Supreme Court uphold visual observations

of the curtilage of a house made from aircraft flying over the house. See

California v. Ciraolo, 476 U.S. 207, 213-214 (1986). A key part of the

court’s justification for upholding the aerial surveillance in Ciraolo was the

routine usage of aircraft. Id. at 215. Aircraft were a known, common

technology and thus could not be used to unfairly surprise home owners.

            Dogs are far more ubiquitous than aircraft. As such if aircraft are

considered sufficiently established technology in general public use to

lawfully support police surveillance operations of a residence then certainly

dogs are also sufficiently long established and in general public use to also

lawfully support such operations. Mankind’s use of dogs is certainly not a

recent innovation nor is the development of human olfactory senses. The

domestication of the dog is believed to have happened approximately 12,000
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                      25
years ago. See Jardines, 133 S. Ct. at 1420 (dissenting op.) And as for

being in general public use, the American Humane Society estimated that as

of 2012 there were 83.3 million dogs being kept as pets in American homes

with 47% of households having at least one dog. Therefore the dog is

neither novel nor rare as a helper to mankind.

            Nor is the use of dogs for police work a new development. As Justice

Alito indicated in his dissenting opinion in Jardines, mankind has used dogs

to augment law enforcement since at least 1318 (proven by the existence of a

Scottish law from that year that made it a crime to disturb dogs that were

being used to track thieves.)                Id. at 1424.   And even if we limit our

consideration of dogs only to their use in narcotics detection, such

technology is still long established and relatively common. The Dragnet

episode “Narcotics: DR-21” was about the police using drug detection dogs,

and that particular episode aired on January 30, 1969. Therefore assuming

Dragnet was truthful in its claim that its episodes were based on true police

stories, police agencies have utilized drug detection dogs in this country for

at least 45 years. Nor are such animals rare and restricted items. Retired

police dogs are readily available for adoption by the public at large and thus

can be easily obtained by the general public. (Certainly obtaining a retired

drug detection dog is far cheaper and easier to obtain than obtaining an
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                26
airplane.) As such, since dogs are both in general public use and have long

served mankind, they do not represent the kind of novel, rare technology

whose use for home surveillance was prohibited by Kyllo, and as such there

is no justification for extending Kyllo to prohibit canine open air sniffs

conducted from a lawful, vantage point. The Supreme Court declined to

adopt such a rule in Jardines and invalidated the open air sniff conducted in

that case because the dog committed a trespass to conduct the sniff not

because the use of the dog itself violated Kyllo. Jardines, 133 S. Ct. at 1417.

The same standard should apply in Texas. Dogs are not a new or rare

technology, and thus Kyllo does not prohibit the use of dogs to conduct open

air sniffs of residences so long as the dog is operating from a lawful vantage

point.

                 Accordingly, since Appellee lacked a reasonable expectation of

privacy in the odors that emanated from his residence, and since the police

did not utilize a new, unavailable to the general public, technology to detect

those odors, the open air sniff conducted from the common area of

Appellee’s apartment did not violate Appellee’s Fourth Amendment rights.

Therefore the evidence obtained as a result of that open air sniff was

lawfully obtained, and the Court of Appeals ruling to the contrary was in

error and should be reversed.
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                             27
                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court reverse the judgment of the Court of Appeals and the trial

court and remand this case to be heard on the merits.


                                             Respectfully submitted,

                                             STEPHEN B. TYLER
                                             CRIMINALDISTRICT ATTORNEY


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


                                             ATTORNEYS FOR THE APPELLANT,
                                             THE STATE OF TEXAS




Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                  28
                                     CERTIFICATE OF COMPLIANCE

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

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellant’s Brief submitted on

March 2, 2015, excluding those matters listed in Rule 9.4(i)(3) is 5,758.



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




Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                  29
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief will be mailed to

Edward F. Shaughnessy, III, 206 E. Locust, San Antonio, Texas, 78212,

Attorney for the Appellee, Michael Rendon, and to Ms. Lisa McMinn, P. O.

Box 13046, Capitol Station, Austin, Texas 78711, State Prosecuting

Attorney, on this the 2nd day March, 2015.


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




Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0013-15
                                                        30
