Opinion filed March 21, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-15-00016-CR
                                   __________

                 MARIO ALBERTO SILLER, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 25561A


                        OPINION ON REMAND
      Mario Alberto Siller appealed his conviction for possession of
methamphetamine. Appellant pleaded guilty to the offense after the trial court
denied his motion to suppress evidence seized pursuant to a search and arrest
warrant. Under the terms of a plea bargain, the trial court sentenced Appellant to
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of eight years. In one issue on appeal, Appellant asserted that the
trial court erred when it denied his motion to suppress because the Penal Code
section that served as the basis for the issuance of the search and arrest warrant was
later declared unconstitutional.
        On original submission, we reversed the judgment of the trial court and
remanded the case back to the trial court for further proceedings consistent with our
opinion. Siller v. State, No. 11-15-00016-CR, 2016 WL 4386107 (Tex. App.—
Eastland Aug. 11, 2016), vacated, No. PD-1052-16, 2017 WL 4401901 (Tex. Crim.
App. Oct. 4, 2017) (not designated for publication). The State petitioned for
discretionary review. The Court of Criminal Appeals granted the petition, vacated
this court’s judgment, and remanded the cause for further consideration in light of
its recent opinion in McClintock v. State, 541 S.W.3d 63 (Tex. Crim. App.), reh’g
denied, 538 S.W.3d 542 (Tex. Crim. App. 2017). Siller, 2017 WL 4401901, at *1.
McClintock had not been handed down when we issued our original opinion. Having
reconsidered the issue under McClintock’s guidance, we resolve it against Appellant
and affirm the trial court’s judgment.
                                        Background Facts
        On May 15, 2013, a Taylor County district judge issued a search and arrest
warrant for Appellant. The affidavit in support of the warrant alleged that Appellant
had committed the offense of improper photography or visual recording in violation
of the former version of Section 21.15(b)(1) of the Texas Penal Code.1 The warrant
authorized the search of Appellant’s home for evidence of the alleged offense. When
police searched Appellant’s home pursuant to the warrant, they found less than one



        1
         Act of May 18, 2007, 80th Leg., R.S., ch. 306, § 1, 2007 Tex. Gen. Laws 582, invalidated in part
by Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014), amended by Act of May 30, 2015,
84th Leg. R.S., ch. 955, § 2, 2015 Tex. Sess. Law Serv. 3393–94 (West). All references to Section 21.15
in this opinion are to the former version declared unconstitutional by the Court of Criminal Appeals in
Thompson.

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gram of methamphetamine. Appellant was subsequently indicted for both improper
visual recording and for possession of methamphetamine.
      During the pendency of the underlying case, the Court of Criminal Appeals
ruled in Ex parte Thompson that, to the extent that it proscribed taking photographs
and recording visual images, subsection (b)(1) of Section 21.15 was facially
unconstitutional in violation of the freedom of speech guarantee of the First
Amendment. 442 S.W.3d 325, 330 (Tex. Crim. App. 2014). After Thompson, the
State dropped the improper photography charge.
      Appellant then filed a motion to suppress evidence with respect to the
remaining methamphetamine charge. He premised the motion on the contention that
the statute upon which the arrest and search warrant were issued was subsequently
found to be unconstitutional in Thompson. The trial court held a hearing on the
motion to suppress on stipulated facts. Because the improper video recording statute
was declared unconstitutional, Appellant argued that the warrant was void for lack
of probable cause. The State responded to Appellant’s contention by asserting that
the statute was still valid at the time the warrant was issued and that the officers
acted in good faith in seeking a warrant based upon a statute that had not yet been
invalidated.
      The trial court denied Appellant’s motion to suppress and issued written
findings of fact and conclusions of law. The trial court found that there was no
evidence that officers did not act in good faith in alleging a violation of the offense
of improper visual recording and that there was no evidence that the officers knew
or had any reason to believe the statute was unconstitutional. The trial court also
determined that the supporting affidavit for the warrant established probable cause
for the magistrate to issue the warrant.




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                                       Analysis
      In our earlier opinion, we ruled that the trial court erred by denying
Appellant’s motion to suppress. See Siller, 2016 WL 4386107, at *4. In doing so,
we concluded that “the search warrant in this case was not supported by probable
cause because the Penal Code section upon which it was based was later declared to
be unconstitutional.” Id. (citing Thompson, 442 S.W.3d at 330). We also held that
the statutory good-faith exception in Article 38.23(b) of the Texas Code of Criminal
Procedure did not apply to a warrant issued pursuant to a criminal statute that is later
deemed unconstitutional. Id. We determined that the absence of probable cause to
support the search warrant precluded the application of the good-faith exception.
See id. In reaching this conclusion, we cited the First Court of Appeals’ opinion in
McClintock v. State, which reached a similar conclusion. 480 S.W.3d 734, 743 (Tex.
App.—Houston [1st Dist.] 2015) (holding that the Article 38.23(b) exception did not
apply because the search warrant was not supported by probable cause because of
the subsequent declaration that the underlying search was unconstitutional), rev’d,
541 S.W.3d 63 (Tex. Crim. App. 2017).
      The Texas Court of Criminal Appeals reversed the First Court of Appeals’
opinion in McClintock after we issued our prior opinion in this case. Noting that we
did not have the benefit of the McClintock decision when we addressed the State’s
arguments regarding Article 38.23(b), the Court of Criminal Appeals vacated our
prior opinion and remanded the matter back to us. See Siller, 2017 WL 4401901, at
*1.   The Court of Criminal Appeals concluded that we should be given an
opportunity to consider whether the facts in this case satisfy the test adopted in
McClintock. Id. Accordingly, we must first interpret the scope of the Court of
Criminal Appeals’ opinion in McClintock.
      In McClintock, the police took a drug-sniffing dog to the defendant’s door,
where the dog alerted to the presence of drugs. 541 S.W.3d at 65. Based on this
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information, officers obtained a warrant to search the defendant’s residence, and he
was subsequently charged with felony possession of marihuana. Id. At the time of
the drug sniff, the police relied upon then-binding precedent that the dog sniff did
not constitute a search for Fourth Amendment purposes. Id. However, while the
case was pending on appeal at the First Court of Appeals, the United States Supreme
Court decided Florida v. Jardines, which held that a canine drug sniff on the front
porch of a home did constitute a “search” for Fourth Amendment purposes. Id.
(citing Jardines, 569 U.S. 1, 11 (2013)).
      Under Jardines, the dog sniff in McClintock “unquestionably violated the
Fourth Amendment.” Id. at 73. Because the officers’ conduct was not wrongful at
the time the drug sniff was conducted, however, the Court of Criminal Appeals
reasoned that the constitutionality of that conduct remained “close enough to the line
of validity” to conclude that “an objectively reasonable officer preparing a warrant
affidavit would have believed that the information supporting the warrant
application was not tainted by unconstitutional conduct.” Id. at 74. Indeed, prior to
Jardines, there was no binding precedent that held that a canine drug sniff conducted
on the curtilage of a home was unconstitutional. Id. Additionally, there was no
reason for the officers to question the legal validity of their conduct at the time of
the warrant application. Id. Therefore, the court concluded that “the officer’s
subsequent search of the apartment was executed ‘in objective good faith reliance’”
on the warrant. Id. The McClintock court determined that the good-faith exception
set out in Article 38.23(b) applied so as to except the fruits of the search from the
exclusionary rule set out in Article 38.23(a). Id.
      In McClintock, the Court of Criminal Appeals broadened the scope of the
good-faith exception of Article 38.23(b). The court had previously remanded the
case back to the First Court of Appeals to determine “whether the United States
Supreme Court’s recent interpretation of the court-made good-faith exception to the
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federal exclusionary rule . . . should have any application in the construction of our
own statutory good-faith exception to our statutory exclusionary rule.” Id. at 64
(citing Davis v. United States, 564 U.S. 229 (2011)); see McClintock v. State, 444
S.W.3d 15, 20–21 (Tex. Crim. App. 2014). As noted by the Court of Criminal
Appeals, “[t]he Supreme Court’s decision in Davis dealt with the good-faith
exception to the federal, court-made exclusionary rule.” McClintock, 541 S.W.3d at
67. “The question in Davis was whether to apply the federal exclusionary rule ‘when
police conduct a search in compliance with binding precedent that is later
overruled.’” Id. (quoting Davis, 564 U.S. at 232). “The Supreme Court concluded
that ‘[e]vidence obtained during a search conducted in reasonable reliance on
binding precedent is not subject to the exclusionary rule.’” Id. (alteration in
original) (quoting Davis, 564 U.S. at 241).
      In McClintock, the Court of Criminal Appeals determined that the language
of Article 38.23(b) accommodates the federal good-faith exception recognized in
Davis and United States v. Leon, 468 U.S. 897 (1984). Id. at 70–72. The court
analyzed several federal cases that had examined the interplay between the good-
faith exception and the fruit-of-the-poisonous-tree doctrine. Id. The court noted that
the Fifth Circuit had adopted a two-part test to determine the applicability of the
good-faith exception. First, “the prior law enforcement conduct that uncovered
evidence used in the affidavit for the warrant must be ‘close enough to the line of
validity’ that an objectively reasonable officer preparing the affidavit or executing
the warrant would believe that the information supporting the warrant[] was not
tainted by unconstitutional conduct.” Id. at 71–72 (quoting United States v. Massi,
761 F.3d 512, 528 (5th Cir. 2014)). And second, “the resulting search warrant must
have been sought and executed by a law enforcement officer in good faith.” Id.
Based on Massi, the Court of Criminal Appeals held as follows:


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      [T]he good-faith exception of Article 38.23(b) will apply when “the
      prior law enforcement conduct that uncovered evidence used in the
      affidavit for the warrant [was] ‘close enough to the line of validity’ that
      an objectively reasonable officer preparing the affidavit or executing
      the warrant would believe that the information supporting the warrant
      was not tainted by unconstitutional conduct[.]”
Id. at 73 (second and third alterations in original) (quoting Massi, 761 F.3d at 528).
      The Court of Criminal Appeals remanded this case back to our court to give
us an opportunity to address the above-quoted holding. Siller, 2017 WL 4401901,
at *1. We note that the facts in McClintock differ from the circumstances in this
case. The search warrant in McClintock was obtained based upon a predicate search
by police officers that was later determined to be tainted by unconstitutional conduct.
At the time the predicate search occurred, the officers had no reason to believe that
the resulting warrant was tainted. McClintock, 541 S.W.3d at 73–74. The Court of
Criminal Appeals concluded in McClintock that, if an officer reasonably believed
that his conduct was valid at the time of the warrant application and execution, a
subsequent change in the legal landscape will not preclude the application of the
good-faith exception. Id.
      The officer in this case did not rely upon a predicate search for the information
supplied in the affidavit for the search and arrest warrant. Instead, the officer’s
affidavit supporting the issuance of the warrant detailed that officers received a
report from a female that Appellant had videoed her fifteen-year-old daughter in
Walmart when the daughter bent over to get a case of water. The female further
reported that she witnessed Appellant videoing the “bottoms” of several other young
females while in the store. The officer alleged in his affidavit that Appellant had
committed the offense of improper photography or visual recording, and he sought
an evidentiary search warrant to search Appellant’s home for evidence of this alleged
offense.

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        In our earlier opinion, we never reached the question of whether the officer
acted in good-faith reliance on the law as it existed at the time because we concluded
the subsequent invalidation of the offense on constitutional grounds precluded the
possibility that the warrant was “based on probable cause” under all circumstances.
Siller, 2016 WL 4386107, at *4; see CRIM. PROC. art. 38.23(b). Under the holding
in McClintock, however, “if there was probable cause under the law as it existed
when the magistrate issued the warrant, then that triggers the consideration of the
good faith exception in Article 38.23(b).” McClintock, 541 S.W.3d at 76 (Alcala,
J., dissenting) (explaining the effect of the majority opinion). The holding in
McClintock defines what may permissibly be considered in the assessment of
“probable cause”2 under Article 38.23(b). Id. at 67. Rather than “categorically”
striking illegally obtained information or, as relevant to the facts in this case, the
alleged violation of a constitutionally infirm criminal offense, McClintock instructs
us to consider information that an objectively reasonable officer would rely upon as
appropriately obtained evidence. Id. at 68.
        The offense of improper photography or visual recording as set out in the
former version of Section 21.15(b)(1) had not been declared unconstitutional until
after the search and arrest warrant in this case had been obtained and executed. Thus,
under the rule announced in McClintock, an objectively reasonable officer preparing
the affidavit and executing the warrant in this case would have believed that the
warrant was not tainted by an element that would ultimately be declared to be
unconstitutional. Under such circumstances, “[t]o suppress the evidence derived
from this warrant would not serve the interest of deterring future constitutional


        2
         In McClintock, the Court of Criminal Appeals noted the commonplace definition of “probable
cause”: “under the totality of circumstances presented to the magistrate, there is at least a ‘fair probability’
or ‘substantial chance’ that contraband or evidence of a crime will be found at the specified location.”
McClintock, 541 S.W.3d at 68 (citing Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)).

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violations.” Massi, 761 F.3d at 532 (citing Leon, 468 U.S. at 919–20); see Davis,
564 U.S. at 236–37 (explaining that the purpose of the federal exclusionary rule is
to deter future Fourth Amendment violations).3 Accordingly, the trial court did not
err when it denied Appellant’s motion to suppress. We overrule Appellant’s sole
issue on appeal.
                                           This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                      JOHN M. BAILEY
                                                                      CHIEF JUSTICE


March 21, 2019
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.




        3
          The Supreme Court further noted in Davis that the purpose of the federal exclusionary rule is not
to punish the error of legislators in the case of a statute that is later declared invalid. 564 U.S. at 239 (citing
Illinois v. Krull, 480 U.S. 349–50 (1987)).
        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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