Opinion issued June 11, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00572-CR
                           ———————————
                BRADLEY RAY MCCLINTOCK, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1280089



                           DISSENTING OPINION

      Appellant, Bradley Ray McClintock, pleaded guilty to possession of

between four ounces and five pounds of marijuana and reserved his right to appeal

the denial of his motion to suppress evidence obtained as a result of a search
warrant. The trial court assessed punishment at three years’ deferred adjudication

and a $500 fine. On appeal, McClintock argues that the trial court abused its

discretion when it denied his motion to suppress. He contends that (1) the police’s

use of a drug dog to sniff at his apartment door from an external stairway outside

his apartment building was a warrantless search of his apartment that invalidated

the later search warrant under which officers entered the apartment and seized the

marijuana; and (2) the probable cause affidavit was insufficient without this tainted

information to show probable cause to obtain the warrant. The majority agrees

with McClintock and remands the case for a new trial without the evidence

discovered in the apartment.

      I would hold that the untainted information contained in the probable cause

affidavit, apart from the information that the dog alerted on the landing outside

McClintock’s second-floor residence, was sufficient to authorize the magistrate to

issue the warrant. See Davis v. State, 202 S.W.3d 149, 156 (Tex. Crim. App.

2006). Therefore, I respectfully dissent from the majority’s opinion and judgment

reversing the judgment of the trial court. I would affirm.

                                       Background

      After receiving information that marijuana was being grown on the second

floor of a two-story brick duplex at 412 West Clay Street in Houston, Texas,

Department of Public Safety officers set up surveillance of the building. In an

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affidavit given to show probable cause to search the location for marijuana and

evidence related to marijuana cultivation, the affiant, Officer R. Arthur, a police

officer qualified to recognize the odor of marijuana and with extensive experience

in narcotics investigation, described the location in detail. A business was located

on the first floor of the duplex, and a parking area was located at the rear of the

building. Officer Arthur stated,

      There are no gates, fences or doors that block access to this parking
      area [behind the duplex] or to the stairs leading to the door to the 2nd
      floor. This stairway is open to the public in that it could easily be
      where a delivery person could or would make deliveries to the
      upstairs residence area.

He also attached a photograph of the location to the affidavit. Based on his

training and experience, the affiant found his observations of McClintock’s

unusual comings and goings “at hours well before and after the business hours of

the business on the first floor” during the week in which surveillance was

conducted at the location to be “consistent with possible narcotics activity.”

      The affidavit stated that on September 29, 2010, the affiant approached the

location around 11:30 p.m. and smelled what he knew from training and

experience to be marijuana “from the outside of this location.” After he smelled

the marijuana, he requested and received the assistance of a narcotics canine at the

location. The affiant then approached the duplex with other officers and a trained

forensic narcotics dog, Sita. He observed Sita and her handler, Officer K. Uhlin,

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walk up to the second floor doorway using the open-to-the-public stairway leading

to the second floor of the location, where Sita gave a positive alert. Based on the

investigation, Officer Arthur applied for a search warrant. The magistrate issued

the warrant, finding that the rear entrance to the apartment where Sita alerted was

open to the public and was not curtilage; that the dog sniff was not a search; and

that the alert at the rear entrance to the apartment established probable cause to

issue the warrant. The police seized marijuana from McClintock’s apartment.

      A subsequent affidavit, filed in response to appellant’s motion to suppress,

supplied more details, but did not alter the facts on which the search warrant

issued. The supplemental affidavit was supported by a number of photographs. 1

      The supplemental affidavit, also prepared by Officer Arthur, detailed the

surveillance conducted on McClintock between September 23, 2010, and

September 29, 2010. Officer Arthur averred that there were two driveways on

either side of the building leading to the rear parking area of the duplex. The

driveway to the west of the building was shared with an adjacent duplex. There

were “no gates, fences, security devices, or any other type of obstruction blocking

either driveway, or the parking access in the rear of the duplex.” The parking area


1
      These additional facts were not relied on by the magistrate to provide probable
      cause for issuance of the search warrant. They are included here to provide
      context for Officer Arthur’s affidavit stating that he found McClintock’s activities
      during the surveillance period to be consistent with possible narcotics activity in
      contrast to the majority’s speculation as to what the officers might have observed.
                                           4
behind the duplex was a concrete slab surface and was “open to the rear parking

area of the adjacent duplex to the west,” and this parking area was “not blocked by

fences, gates, or any other type of obstructions and share[d] primarily the west

driveway as access, but [was] also accessible from the east driveway.”           The

officers observed multiple vehicles parked in this area for extended periods of

time.

        There were two front doors to the building side by side on a small porch.

Officer Arthur averred that the door on the right led to the first-floor business and

that the officers did not know what the second door led to, but they had not seen

anyone use it during their multiple days of surveillance. An outside staircase

behind the duplex led from the parking area to an outside back door on the second

floor. Officer Arthur averred that it was the type of stairway that “a delivery

person could or would make deliveries to the upstairs residence area.”

        On September 29, 2010, Officer Arthur, Officer Uhlin, Sita, and another

officer approached the location around 11:30 p.m. Officer Arthur averred that he

could smell marijuana while standing on the sidewalk towards the southeast corner

of the location. He observed that several window air conditioning units on the

second floor were running, but the air conditioning units on the first-floor windows

were not running. He continued to smell the odor of marijuana as he walked up the

driveway to the rear of the building and while he was standing in the back parking

                                         5
area. Officer Uhlin and Sita then walked up the external stairs to the back door,

where Sita gave a positive alert to indicate the presence of marijuana. Officer

Arthur averred that “Officer Uhlin stated she observed a towel and plastic sealing

the bottom of the back door and around the seam near the door handle,” which he

knew was a type of seal used to prevent odors from escaping a location. He

walked down the west driveway back to the front sidewalk and noted that all of the

blinds on the upstairs windows were closed, and all of the upstairs windows

appeared to be covered by aluminum foil or another similar item. He knew from

experience that cold air was needed to cool rooms where high intensity lights are

used to grow marijuana and that covering windows in reflective material is

commonly used to prevent light from escaping and to maximize the amount of

light available for growing marijuana.

      The trial court denied the motion to suppress and made findings in support

of the denial.

                                     Analysis

A.    Standard of Review

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

standard: We give almost total deference to the historical facts found by the trial

court, and we review de novo the trial court’s application of the law. State v.

McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). When a trial court is


                                         6
determining probable cause to support the issuance of a search warrant, there are

no credibility determinations; instead, the court is limited to the four corners of the

affidavit. Id. (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.

2004)).

      We pay great deference to a magistrate’s determination of probable cause

due to the strong constitutional preference for a warrant. Illinois v. Gates, 462 U.S.

213, 236, 103 S. Ct. 2317, 2331 (1983).          As long as the magistrate had a

substantial basis for concluding that probable cause existed, we will uphold the

magistrate’s probable cause determination. McLain, 337 S.W.3d at 271 (citing

Gates, 462 U.S. at 236, 103 S. Ct. at 2331). “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 specified location. It is a flexible and non-

demanding standard.” Id. at 272.

      On review, we interpret the affidavit before the magistrate in a

commonsense and realistic manner. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.

Crim. App. 2007).      We recognize that the magistrate may draw reasonable

inferences. Id. “When in doubt, we defer to all reasonable inferences that the

magistrate could have made.”        Id.   Although we do not rubber stamp the

magistrate’s determination, the magistrate’s decision should carry the day in

doubtful or marginal cases, even if we might reach a different result upon de novo

                                          7
review. Jones v. State, 338 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.]

2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

B.    The Majority Opinion

      Here, Officer Arthur’s affidavit was supported by three grounds for finding

probable cause to search the location, the second floor of 412 West Clay, for

narcotics. First, Officer Arthur stated he was a trained Texas Department of Public

Safety officer and that he recognized the coming and going of McClintock from

the residence at unusual hours as “consistent with possible narcotics activity.”

Second, Officer Arthur himself smelled what was known to him “from training and

experience to be marijuana” from “the outside of this location,” i.e., from outside

412 West Clay. Third, there was the sniff by the dog Sita at the top of the

stairway. Disregarding the information from the dog sniff, the fact that Officer

Arthur himself smelled marijuana from outside of the location while in a public

space constitutes a sufficient basis by itself to obtain a warrant to search the

premises for marijuana cultivation, especially when buttressed by the tip that

officers received concerning the growing of marijuana at the location and Arthur’s

observation of McClintock’s unusual comings and goings, which, as a trained and

experienced narcotics investigator, he knew to be “consistent with possible

narcotics activity.”




                                        8
      The majority acknowledges that the evidence seized under the warrant

would be admissible, even if the dog sniff was illegal, “‘if the warrant clearly

could have been issued on the basis of the untainted information in the affidavit.’”

Slip Op. at 8 (quoting Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d)); see also Castillo v. State, 818 S.W.2d 803,

805 (Tex. Crim. App. 1991) (holding that “the inclusion of tainted allegations in an

affidavit does not necessarily render a resulting search warrant invalid”), overruled

on other grounds, Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005). “The

relevant inquiry into probable cause based upon a tainted affidavit is to put aside

the tainted allegations and determine whether the independently acquired and

lawful information clearly established probable cause.” State v. Bridges, 977

S.W.2d 628, 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citing Castillo,

818 S.W.2d at 805); see Pool v. State, 157 S.W.3d 36, 44 (Tex. App.—Waco 2004,

no pet.).

      The majority, however, finds the dog sniff to be illegal, discounts the

additional bases for finding probable cause to issue the search warrant, and holds

that the dog sniff invalidated the search warrant. First, it states, “Officer Arthur

did not purport to specify that from his position outside of the ‘location,’ he

actually identified the marijuana smell to be coming from the upstairs apartment,

as opposed to another location such as the ground-floor purveyors of vegan food.

                                         9
Instead, the officer identified his own location and stated that he smelled marijuana

‘from the outside of this location.’ . . . Based on lawfully obtained information

within the four corners of the original affidavit, the marijuana odor detected by the

officer could have emanated from anywhere near the surveilled location, including

the first-floor businesses or a neighboring house.”       Slip Op. at 12.     It then

concludes that “Officer Arthur’s statement concerning the odor, standing alone,

does not support a determination of probable cause because it was not tied to the

specific, particular place to be searched.” Slip Op. at 12–13 (citing McLain, 337

S.W.3d at 272 (holding that probable cause exists when “there is a fair probability

that contraband or evidence of a crime will be found at the specified location”) and

Davis, 202 S.W.3d at 156 (holding that affidavit supported probable cause because

police officer specified particular house from which he smelled odor of

methamphetamine manufacturing)).

      In holding that the probable cause affidavit in this case did not meet the

particular place requirement for obtaining a warrant, the majority cites several

cases from various federal circuits holding that when a search involves a building

with multiple units, the warrant must specify the precise unit that is to be searched.

See, e.g., United States v. Perez, 484 F.3d 735, 741 (5th Cir. 2007). The probable

cause affidavit in this case specified the target of the search: “the separate 2nd

floor area of the duplex located at 412 West Clay . . . .”       Thus, the affidavit

                                         10
identified the precise unit to be searched. See id. The majority cites no authority

for its conclusion that smelling contraband from outside a multi-unit building, in

conjunction with a tip that illegal activity was occurring at a particular unit and

observations of actions of the resident that appeared to an experienced narcotics

officer to be consistent with narcotics activity, does not provide probable cause to

search the specified unit in that building and that more precise information about

the specific location from which the odor is emanating is necessary to establish

probable cause. See Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim. App. 2006)

(“The odor of contraband is certainly an important fact which may (or may not) be

dispositive, given a specific context, in assessing whether probable cause exists.”).

      The majority then dismisses McClintock’s unusual comings and goings well

after business hours on the ground that this activity, on its face, “apparently

innocent” and “is equally consistent with other ‘possible . . . activity’ that happens

during the night at times ‘before and after . . . business hours . . . .’” Slip Op. at

13–14.   This conclusion dismisses the affiant’s experience and knowledge of

suspicious narcotics-related activity and reevaluates the evidence on appeal. The

majority thus disregards the trial court’s findings that the warrant was supported by

probable cause.

      I agree with the majority that the dog sniff must be disregarded as grounds

for establishing probable cause, but I disagree with its conclusion that the untainted

                                         11
information in the affidavit did not establish probable cause to search

McClintock’s apartment.

       The majority holds that the landing in front of McClintock’s apartment,

which “led only and directly to McClintock’s door,” was part of the apartment’s

curtilage and was not part of a public or common area. Slip Op. at 7. Thus, when

the police used a trained dog to sniff at the apartment’s door from the landing,

“they intruded upon his home and conducted a search within the meaning of the

Fourth Amendment.” Slip Op. at 7–8 (citing Florida v. Jardines, 133 S. Ct. 1409,

1417–18 (2013)).        This “search from within McClintock’s curtilage was

presumptively unreasonable . . . .” Slip Op. at 8.

       I agree with the majority that, under Florida v. Jardines, the outside landing

on which Sita alerted to a controlled substance was part of the curtilage of

McClintock’s apartment. 133 S. Ct. at 1415. I also agree that, under Jardines,

“[t]he government’s use of trained police dogs to investigate the home and its

immediate surroundings is a ‘search’ within the meaning of the Fourth

Amendment.” Id. at 1417–18.

       It is important, however, to distinguish “independently acquired and lawful

information” from unlawfully obtained information. See Bridges, 977 S.W.2d at

632.    As both the five-person majority in Jardines and the three-person

concurrence     drawn    from    that    majority    make    clear,   “The    police

                                         12
officers . . . conducted a search because they used a ‘device . . . not in general

public use’ (a trained drug-detection dog) to ‘explore details of the home’ (the

presence of certain substances) that they would not otherwise have discovered

without entering the premises.” 133 S. Ct. at 1419 (Kagan, J., concurring) (quoting

Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046 (2001)). Justice

Kagan, making the privacy argument (as opposed to the premises argument) that

the majority in Jardines declined to make, emphasized that the trained forensic dog

was a “‘sense-enhancing’ tool,” “not ‘in general public use’,” and, for that specific

reason, could not be used by the police “to examine a home without a warrant or

exigent circumstance.” Id. at 1419–20 (quoting Kyllo, 533 U.S. at 34, 36, 121 S.

Ct. at 2043). The concurrence expressly distinguished the use of such a “sense-

enhancing tool,” stating, “If officers can smell drugs coming from a house, they

can use that information; a human sniff is not a search, we can all agree.” Id. at

1419 n.2 (citing Kyllo, 533 U.S. at 35 n.2, 121 S. Ct. at 2043 n.2, as drawing same

distinction). This “bright line” rule invalidated the warrantless search by Sita; but

it did not invalidate Officer Arthur’s smelling marijuana coming from the building

“from outside the location.” Under the same bright line rule, this human sniff was

not a search. See id.

      Texas law conforms to the distinction set out in the Jardines concurrence

and in Kyllo between the use of a sense-enhancing search device (here, as in

                                         13
Jardines, a trained forensic narcotics canine) to search a location and the use of the

ordinary sense of smell of a trained police officer to establish probable cause to

obtain a warrant to search the location for contraband. “If an affiant seeking a

search warrant attests to the presence of an odor and a magistrate finds the affiant

qualified to recognize the odor, this information is considered persuasive in

obtaining a warrant.” Davis, 202 S.W.3d at 156; see also Johnson v. United States,

333 U.S. 10, 13, 68 S. Ct. 367, 369 (1948) (holding qualified officer’s smell of

contraband is often “evidence of most persuasive character.”). Generally, when a

police officer smells marijuana in a location, he has probable cause to search that

location. See United States v. Ibarra-Sanchez, 203 F.3d 356, 357 (5th Cir. 2000)

(once police smelled marijuana in van, they had probable cause to search it); 2

WAYNE R. LAFAVE, SEARCH           AND   SEIZURE: A TREATISE        ON THE    FOURTH

AMENDMENT § 3.6(b) (4th ed. 2004). The police officer does not have to set forth

in the probable cause affidavit specific qualifications or training for detecting the

odor—as long as the magistrate could have reasonably inferred that the officer had

past experience with the odor by virtue of his position as a peace officer, that

inference is sufficient to show that the officer was qualified to recognize the odor.

See Davis, 202 S.W.3d at 156–57.

      Davis illustrates a circumstance in which a police officer’s smell of narcotics

properly allowed a magistrate to determine that probable cause existed, even when

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other information in a “far from exemplary” supporting affidavit was insufficient

to support probable cause when taken by itself. 202 S.W.3d at 155–57. In Davis, a

police officer smelled “a strong chemical odor he has associated with the

manufacture of methamphetamine” coming from the defendant’s residence when

the officer drove by. Id. at 152. The affidavit also contained information that the

investigating officers “received information” from unspecified confidential

informants and Crime         Stoppers tips that the defendant was making

methamphetamine at the residence. Id. While holding that the latter information

was insufficient by itself to support issuance of a warrant, the Court of Criminal

Appeals held that the fact that the officer smelled the odor of methamphetamine

authorized the magistrate to issue the warrant. Id. at 156. The officer who smelled

the odor was qualified by virtue of the assertion in the affidavit that he was a patrol

officer in the locality in question. Id. The other background information, although

unable to support issuance of a warrant by itself, then supported the critical

assertion that the officer had smelled methamphetamine production. Id. at 157.

Altogether, the affidavit contained sufficient information within its four corners to

support the magistrate’s probable cause determination. Id. at 158.

      Likewise, the warrant in this case could have been issued based on the

information in the affidavit that Officer Arthur, a trained and experienced narcotics

officer, smelled marijuana from outside the residence and that he and the other

                                          15
investigating officers observed behavior consistent with narcotics activity during

the surveillance of 412 West Clay following a tip that marijuana was being grown

inside the second floor of the premises. Therefore, disregarding the information

related to the dog sniff, the remaining statements in the affidavit clearly supported

the issuance of the warrant. See Brackens, 312 S.W.3d at 838. Moreover, because

the dog sniff information was clearly unnecessary to establish probable cause,

McClintock could not have been harmed by the inclusion in the affidavit of the

information that the dog alerted outside his apartment door at the top of the

exterior staircase. See Pitonyak v. State, 253 S.W.3d 834, 848 (Tex. App.—Austin

2008, pet. ref’d) (holding that if tainted information is clearly unnecessary to

establish probable cause, defendant could not have been harmed by inclusion of

tainted information).   Accordingly, I would hold that it was not an abuse of

discretion by the trial court to deny McClintock’s motion to suppress and to hold

that the probable cause affidavit was valid.




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                                    Conclusion

      For the foregoing reasons, I would affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

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




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