                            NUMBER 13-14-00244-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                        Appellant,

                                           v.

CHRISTOPHER ANDREW PENA,                                                    Appellee.


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


                                  OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
                       Opinion by Justice Garza
      Appellee, Christopher Andrew Pena, was indicted on one count of unlawful

possession of a firearm by a felon and one count of possession of less than one gram of

cocaine. See TEX. PENAL CODE ANN. § 46.04(a) (West, Westlaw through 2013 3d C.S.);

TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw through 2013 3d C.S.).

He filed a motion to suppress evidence, which the trial court granted. The State of Texas
appeals. We affirm.

                                          I. BACKGROUND

       The indictment alleged that Pena intentionally or knowingly possessed a firearm

before the fifth anniversary of his release from confinement for a prior theft conviction,

see TEX. PENAL CODE ANN. § 46.04(a)(1), and that he intentionally or knowingly possessed

less than one gram of cocaine while using or exhibiting a deadly weapon. See id.

§ 12.35(c) (West, Westlaw through 2013 3d C.S.).                   The indictment contained an

enhancement paragraph alleging that Pena had previously been convicted of evading

arrest or detention using a vehicle. See id. § 12.42(c) (West, Westlaw through 2013 3d

C.S.). Pena filed a pre-trial motion to suppress certain evidence that he alleged was

obtained by police via an illegal search of his residence in Victoria, Texas.

       At a hearing on the motion, Detective Jimmy McDonald of the Victoria Police

Department testified that he and three other officers arrived at the residence at around

3:30 p.m. on May 29, 2012 to conduct a narcotics investigation based on an anonymous

Crime Stoppers tip. McDonald stated that he and one other officer were in plain clothes

while the two other officers were in uniform, and all four officers were wearing department-

issued body armor. He stated that there were no fences or gates surrounding the

property. When the officers arrived, McDonald’s colleague Detective Gibbs had a trained

narcotic-odor-detecting dog, Robby, conduct a “free air sniff.” The dog alerted to the

residence. McDonald then knocked on the front door and Pena answered. McDonald

identified himself as a police officer and advised Pena that he and the other officers were

there to investigate a call that narcotics were being used or sold at the residence.1


       1  Audio of the officers’ interaction with Pena was partially captured by a microphone which was
attached to Gibbs and which was synced to Gibbs’s in-car video recording system. The recording, which

                                                  2
McDonald testified: “I asked [Pena], why would a drug dog alert to his residence? He

said he did not know.”

        Pena asked to speak with McDonald’s superior, Sergeant John Jameson, who was

one of four officers on the scene. McDonald contacted Jameson by radio to advise him

of the request. At the time, Jameson “was standing in the back yard” with another officer.

When Jameson came to the front door to talk to Pena, McDonald went to the rear of the

residence “to provide security.” According to McDonald, when he went into the back yard,

Pena’s wife and children were there. Pena’s wife was talking with the other officer,

Detective Jason Stover. At some point, McDonald returned to the front yard so that

Jameson could speak with Stover while McDonald stood with Pena.

        McDonald stated that Pena was worried that his children were being left

unattended, but McDonald assured him that “we weren’t going to leave them unattended

or put them in any danger.” According to McDonald, Pena asked to speak with his wife

and was allowed to do so. After about “20 to 30 minutes,” Pena invited the officers in the

house. At that point, McDonald went to his car to retrieve evidence collection equipment

because he believed “we were going to enter the residence and conduct a consent

search.” The officers went into the house and “continued the discussion” with Pena. At

4:25 p.m., Pena and his wife executed a form stating that they consented to a search of

the house.2 The search revealed, among other things, a rifle and a bag containing 0.34



is of mediocre quality and cuts in and out sporadically, was entered into evidence at the suppression hearing
as State’s Exhibit 1.
        2   The form described the property and stated:
        I understand that I have the right to refuse consent to the search described above and to
        refuse to sign this form. I further state that no promises, threats, force or physical or mental
        coercion of any kind whatsoever have been used against me to get me to consent to the
        search described above or to sign this form.

                                                       3
grams of cocaine.

      McDonald testified that he never discussed getting a search warrant with Pena.

He denied ever telling Pena, “You let us in your house or we’ll get a search warrant.”

McDonald stated that he was armed with his service weapon but that he never removed

the weapon from its holster. On cross-examination, McDonald conceded that, at one

point, Pena stated that “he was not willing to give consent to search”; however, according

to McDonald, “he continued to speak.”

      Jameson testified that the officers responded to Pena’s residence to conduct a

“knock and talk” investigation, whereby two officers would approach the entrance and two

other officers would secure the perimeter. Jameson initially stationed himself on the

perimeter in the back yard but went back to the front porch area because Pena asked to

speak with him. Jameson testified:

      Q [Prosecutor]     Did you tell [Pena] about the drug alert—the drug dog
                         alert before or after you asked for his consent to go in his
                         home?

      A [Jameson]        It would have been after.

      Q                  Did he tell you that you could come in?

      A                  No. He had said, no, he didn’t want us to go in.

             ....

      Q                  After the defendant told you he would not give consent,
                         what did you do?

      A                  I contacted Detective Stover and began to walk back and
                         tell him what the next step would be. . . . He explained to
                         me he had been talking to [Pena’s wife] and she wanted
                         to talk to her husband.

             ....

      Q                  What did you do in response to that?


                                            4
A           Allowed them to do it.

     ....

Q           What happened next?

A           I, again, went back and addressed him and asked if he
            wanted to speak to me and we began talking—He wanted
            promises. He wanted to know what would happen if he
            allowed us to search.

Q           Did you promise anything?

A.          No, I did not.

Q           When you started this conversation—When he started
            this conversation, what were you thinking, there might be
            something inside?

A           He had made a comment—I don’t recall specifically what
            it was, but it led me to believe that he had something
            inside the house. I made a comment to him, “From what
            you’re telling me, I can guess that there’s something
            inside the house,” and he said, “Yes, there was.”

Q           Did the defendant proceed to tell you what was inside the
            house?

A           He did.

Q           What did he tell you was inside the house?

A           That he had a 20 and his wife’s handgun was in there.

Q           What’s a “20”?

A           Slang for a certain amount of cocaine.

     ....

Q           When he indicated there was a pistol, did you follow up
            with, “Are you not supposed to have one?”

A           There was a conversation about his criminal history. I
            pretty much inquired as to whether he was supposed to
            be around a handgun. And, at one point, he asked if there
            was something we would charge him with, and I explained
            that we would pretty much have to, due to the
            circumstances.
                               5
              ....

       Q                  At some point, does your conversation with the defendant
                          move inside?

       A                  Yes. He had shared with us about previous experiences
                          and even made reference to his house being shot up,
                          when he lived at a different location, and out of that
                          conversation, he was asked if he would feel more
                          comfortable speaking somewhere else and he said, yes,
                          and he invited us inside.

Jameson stated: “At one point, [Pena] asked if I had any problems leaving his wife and

his kids out of it and I said, ‘No, not at all.’” Jameson testified that Pena and his wife were

told several times that they had the right to refuse consent to search and that the search

would stop at any time they requested it to stop. Jameson testified: “This was going on

some time and I told him, ‘It simply comes down to “Yes” or “No.” Either you let us search

or, no, you don’t.’” He stated that Pena was the one who re-initiated the conversation

after he initially denied consent to search. On cross-examination, Jameson conceded

that, at one point, Pena’s wife asked permission to go into the house but the officers

wouldn’t let her go inside without their supervision. Jameson stated “that was because

of the presence of a handgun and officer safety.”

       Stover testified that the officers intended to conduct a “knock and talk

investigation,” whereby they “would deploy the canine on the exterior of the residence, to

conduct a free air sniff, prior to knocking on the door and making contact with the

occupants.” He initially stationed himself at the rear of the residence “to ensure officer

safety” but eventually went to the front of the house once the other officers advised him

over radio that they had made contact with the home owner. Stover testified as follows:

       Q [Prosecutor]     Did you say anything to the defendant at that point?

       A [Stover]         Yes, ma’am, I did.

                                               6
Q.          What did you say?

A           Well, believing, at that time, that consent had been denied
            and based off of the facts known at the time, reference
            the Court’s opinion on the canine, it would have been my
            assumption at the time that the next step would have
            been to try to obtain a search warrant.

            As a pre-emptive portion prior to that, as is common with
            many of the investigations that we do, I had made a
            comment to him that he realizes if anything was located
            inside, that it opened everyone inside, to include him and
            his wife, to having charges filed against them, specifically
            related to the fact that in most investigations when you’re
            dealing with narcotics, you’re not dealing with it in a—It’s
            a common area, like a bedroom or general area in the
            home, which would—depending upon the circumstances,
            open up ownership to either one of them.

     ....

Q           Later, in your conversation with the defendant—much
            later, do you explain and have more conversation with the
            defendant about that statement?

A           Yes, ma’am.

Q           Tell us a little bit about that.

A           Well, it kind of centered around his questions more so to
            us, which was—When we were asking for consent, it
            came up that he was hung up on the drug paraphernalia.
            I would assume he had the knowledge that certain types
            of paraphernalia could be construed by law enforcement
            to be indicative of illegal drug sales. Generally, that’s
            what people are under the impression of—scales and
            baggies that can be utilized not just by people that deal,
            that somehow that would be used to indicate either he
            had been manufacturing a controlled substance or we
            would find the paraphernalia and go back on what we had
            said and have charged his wife with it.

Q           Well, did you tell him that consent is either total consent
            or—

A           Yes, ma’am—I'm sorry.

            We were talking about consent and Detective Gibbs had

                                 7
                         already read the consent form.          They had some
                         questions. Some comments were being made. I had
                         read the form back over to him and I indicated to him at
                         the bottom, “No force, threats, mental coercion had been
                         used.” Mr. Pena pointed out to me that he believed my
                         statement earlier about reference—you know, his wife
                         could be opened up to charges was coercion. I explained
                         the intent of saying that was merely to allow him to take
                         ownership of anything that was his. It didn’t allow us
                         access to go inside and it didn’t alter what was going to
                         happen at that point. It was just a chance for him to take
                         ownership prior to being backed into a corner and taking
                         ownership at the last minute.

Stover testified that Pena “said the last time he was through the state system, he had

been labeled as a snitch” and “his house had been shot at”; so Stover asked Pena if there

was anywhere else he wanted to speak. Pena asked to talk to his wife and then both of

them invited the officers inside the house. Eventually Pena and his wife signed the

consent form. Stover denied ever telling Pena or his wife “If you don’t consent, we’ll get

a search warrant” or “We have a positive alert by the drug dog. We’ll just get a search

warrant.” He denied that Pena was ever promised anything in exchange for his consent.

He conceded on cross-examination that the officers did no “significant” surveillance on

the residence prior to conducting the canine search and that there was no observable

activity going on at the house at the time the officers approached.

       The trial court granted the motion to suppress, and this appeal followed. See TEX.

CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through 2013 3d C.S.) (providing

that the State is entitled to appeal an order that grants a motion to suppress evidence “if

jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial

court that the appeal is not taken for the purpose of delay and that the evidence . . . is of

substantial importance in the case”).



                                             8
                                       II. DISCUSSION

       On appeal, the State contends by three issues that the trial court erred in granting

the motion to suppress, arguing that (1) we should apply a de novo standard of review,

(2) Pena’s consent to search was voluntary, and (3) even if police acted unlawfully, Pena’s

consent was sufficiently attenuated from the unlawful search.

A.     Standard of Review

       In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated

standard of review, giving almost total deference to a trial court’s determination of historic

facts and mixed questions of law and fact that rely upon the credibility of a witness, but

applying a de novo standard of review to pure questions of law and mixed questions that

do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 923

(Tex. Crim. App. 2011).

       We review the trial court’s decision for an abuse of discretion. Id. “We view the

record in the light most favorable to the trial court’s conclusion and reverse the judgment

only if it is outside the zone of reasonable disagreement.” State v. Dixon, 206 S.W.3d

587, 590 (Tex. Crim. App. 2006). The trial court’s ruling will be upheld if it “is reasonably

supported by the record and is correct on any theory of law applicable to the case.” Id.

(citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).

       As noted, the State argues by its first issue that we should conduct a de novo

review because “the underlying facts are not in dispute.” Pena disagrees, pointing to the

Texas Court of Criminal Appeals’ opinion in Meekins v. State, wherein it was held that,

       [b]ecause issues of consent are necessarily fact intensive, a trial court’s
       finding of voluntariness must be accepted on appeal unless it is clearly
       erroneous. Likewise, a finding of involuntariness is afforded the same great
       deference, because . . . the party that prevailed in the trial court is afforded

                                              9
       the strongest legitimate view of the evidence and all reasonable inferences
       that may be drawn from that evidence.

340 S.W.3d 454, 460 (Tex. Crim. App. 2011) (quotations and footnotes omitted). We

construe the State’s issue as conceding the accuracy of the trial court’s fact findings. As

required by the case law, we will defer to those findings, but we will review the trial court’s

application of the law to the facts for abuse of discretion. See Martinez, 348 S.W.3d at

923. That said, a trial court has no discretion in determining what the law is or applying

the law to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Thus, a

failure by a trial court to analyze or apply the law correctly will constitute an abuse of

discretion. Id.

B.     Applicable Law

       The Fourth Amendment to the United States Constitution provides that “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .” U.S. CONST. amend. IV.

Further, “evidence obtained by an officer or other person in violation of any provisions of

the Constitution or laws of the State of Texas, or of the Constitution or laws of the United

States of America” is inadmissible in a criminal case. TEX. CODE CRIM. PROC. ANN. art.

38.23 (West, Westlaw through 2013 3d C.S.).

       In Florida v. Jardines, the United States Supreme Court held that law enforcement

use of a drug-sniffing dog on the front porch of a suspect’s house constitutes a “search”

for purposes of the Fourth Amendment. 133 S.Ct. 1409, 1417–18 (U.S. 2013). The Court

noted that areas “immediately surrounding and associated with the home” are considered

the “curtilage” of the home and are “part of the home itself for Fourth Amendment




                                              10
purposes.” Id. at 1414. The Court held that the front porch of a home is the “classic

exemplar” of such an area, reasoning that the core Fourth Amendment right

       to retreat into [one’s] own home and there be free from unreasonable
       governmental intrusion would be of little practical value if the State’s agents
       could stand in a home’s porch or side garden and trawl for evidence with
       impunity; the right to retreat would be significantly diminished if the police
       could enter a man’s property to observe his repose from just outside the
       front window.

Id. at 1414–15. The Court further rejected the State’s argument that the homeowner had

implicitly granted license to police to conduct a search outside the front door, noting that,

although “the knocker on the front door is treated as an invitation or license to attempt an

entry,” there is “no customary invitation” to “introduc[e] a trained police dog to explore the

area around the home in hopes of discovering incriminating evidence . . . .” Id. at 1415–

16.

C.     Findings and Conclusions

       The order granting the motion contained the following findings of fact and

conclusions of law:

       (1) Four police officers went to defendant’s residence on May 29, 2012, at
       approximately 3:30 p.m. without a search warrant to conduct a “free air sniff”
       with a trained narcotic odor detecting dog at the front door, and then to
       conduct a “knock and talk” to obtain consent to search the residence.

       Police had received information from an unverified source at some unknown
       time prior to the date in question that narcotics were possibly being sold
       from the residence.

       Police had not conducted [] surveillance of the location prior to the date in
       question and had not observed any activity supporting this information.

       The police did not have probable cause to search the residence when they
       approached.

       (2) Prior to the drug dog alerting and prior to knocking on the front door, 2
       officers went to the back of the property next to the house (1 to the left rear
       and 1 to the right rear) to view the back door.

                                             11
Viewing the property from the street: to the left and back of the property is
wooded area; to the right of the property is a trailer house, but the view of
the defendant’s back yard appears obscured by a structure and tree along
the fence line; from the road, the back yard immediately adjacent to the
back side of the residence was not visible from the road—the left side of the
house has a vehicle that obscures the back yard next to the house and the
right side has a detached garage that obscures the back yard next to the
house; the back door and back yard immediately adjacent to the back door
of the house is not visible from the driveway or normal pathway to the front
door.

The Court concludes that the defendant had a reasonable expectation of
privacy as to the back yard (including back door) next to his residence and
is “curtilage”.

The Court finds that the officers did not have consent to go to the outside
rear of the residence, nor did they have probable cause. There was not any
exigent circumstance nor any indication that anyone at the residence was
armed or dangerous. Therefore, officers violated defendant’s reasonable
expectation of privacy and entry into the curtilage of defendant’s house was
not lawful. Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San Antonio
2011, no pet.).

(3) The drug dog then alerted at the front door of the defendant’s residence.
Where the dog alerted was part of the “curtilage” of defendant’s residence.

The Court finds that the drug dog “alert” was an illegal search within
the meaning of the Fourth Amendment pursuant to Florida v. Jardines,
133 S.Ct. 1409 (2013).

(4) Detective McDonald then knocked on the front door of the residence.
Defendant answered the door. Defendant’s wife and 4 children were also
at the residence. Detective McDonald advised the defendant that the drug
dog alerted. Defendant did not give Officer McDonald consent to search
the residence [Officer Stover was under the impression that defendant had
already denied consent to search the residence when Officer Stover spoke
to Defendant after Officer McDonald; the Court determines this impression
is supported at approximately 3:35 on State’s Exhibit 1 (the audio goes in
and out) when Officer McDonald says “you’re not willing to . . .”].

(5) Officer Stover then spoke to Defendant. Defendant believed Officer
Stover told Defendant that if he did not give consent everyone in the house
would go to jail (State’s exhibit 1 at approximately 4:18:26).

Officer Stover then went to the rear of the house and began talking to
Defendant’s wife on the rear porch (the officer does not recall how she came
to be on the rear porch).

                                     12
(6) Detective Jameson then spoke to defendant, also telling defendant that
the drug dog had alerted. Detective Jameson asked defendant for consent
to search. Defendant told Detective Jameson no, that he did not want to
give consent at approximately 3:44:16 (State’s exhibit 1). Officer Stover
then told Detective Jameson that Defendant’s wife wanted to talk to
Defendant. At 3:46:38 defendant says “since I already said no, we going to
sit out here all day or what?”, Officer Gibbs appears to respond “simmer
down” and Detective James[]on appears to respond “just a second”.

The Court determines that defendant is being detained at this time,
defendant also asking officers where his kids were and asking permission
to talk to his wife. The Court determines that the defendant did not
voluntarily reinitiate contact with the police.

(7) Defendant does sign a written consent to search at approximately 4:29.
When asked what happens if the defendant does not want the officers to
search, Officer Gibbs responds in part “Right now we have to take care of
this. We can’t move anywhere until we find out if it is a yes or a no.”

The Court finds that the consent was not freely and voluntarily given and
was the result of mental coercion.

(8) The State has the burden of proving by clear and convincing evidence
that the consent was freely and voluntarily given.

(9) The defendant had a right to be free from unreasonable governmental
intrusion at his residence and has a reasonable expectation of privacy. The
license to approach a residence to conduct a “knock and talk” has certain
spatial and temporal limits.

It is objectively unreasonable and a violation of defendant’s
reasonable expectation of privacy for 2 officers to enter the
defendant’s back yard area prior to officers conducting a “knock and
talk” at the front door based on an unverified tip from some time in the
past without any surveillance to support the information, with no
indication of any activity at the residence at the time of the approach,
and without any exigent circumstance or any credible information that
anyone was armed and dangerous.

Florida v. Jardines, 133 S.Ct. 1409 (2013) at 1414–1416 (including footnote
3, Concur by Kagan, and p. 1422 of Dissent by Alito).

(10) Consent to search after an illegal entry is not voluntary unless the State
can prove by clear and convincing evidence that the taint had dissipated by
the time consent was given.

Considering the Brick factors, the Court also finds the consent was not
voluntary. See Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San Antonio

                                      13
       2011, no pet.).

       PROXIMITY (favors defendant). Police immediately contacted defendant
       after the drug dog alerted at the front door (the illegal search) and advised
       defendant that the drug dog had alerted at the residence. The defendant
       was aware of officers at the back within the first few minutes. There was no
       break in the chain of events between the initial contact and when the written
       consent was given.

       OBSERVATION (favors defendant). The drug dog alerting at the front door
       was an illegal entry/illegal search. It was the “observation” of the drugs for
       which the police were seeking consent to search.

       FLAGRANT MISCONDUCT (favors defendant). The Court finds, based on
       the facts in this case as detailed above, the illegal conduct (conducting a
       “free air sniff” with a trained narcotic odor detecting dog at the front door
       which alerted while 2 officers stationed themselves at the rear of the
       residence), then conducting a “knock and talk”, advising the defendant that
       the drug dog had alerted, was done for the purpose of obtaining consent to
       search the residence.

       Consent requested or volunteered (favors defendant). Police requested
       defendant’s consent to search.

       Awareness of rights (favors State). Defendant was made aware of his right
       to refuse consent prior to signing the written consent form.

       Purpose to obtain consent (favors defendant). The Court concludes that
       the police advising the defendant that the dog alerted was to use that sniff
       (determined to be an illegal search) for the purpose of getting the defendant
       to consent to search.

(Emphases in original.)

D.     Analysis

       The State does not dispute on appeal that the police conduct at issue in this case

constituted an unlawful search under Jardines. See 133 S.Ct. at 1417–18. There is no

dispute that police lacked probable cause to conduct the “free air sniff” on Pena’s front

porch on May 29, 2012. Moreover, as in Jardines, the officers’ behavior “objectively

reveals a purpose to conduct a search, which is not what anyone would think he had

license to do.” Id. at 1417. Accordingly, the trial court was correct in concluding that the

                                            14
“free air sniff” violated Pena’s Fourth Amendment right against unreasonable searches.

See U.S. CONST. amend. IV; Jardines, 133 S.Ct. at 1417–18. On appeal, the State

instead argues that, even if the conduct was illegal, the evidence obtained from the

residence was nevertheless admissible because Pena gave voluntary consent to search

and “the grant of consent was sufficiently attenuated from the initial unlawful entry as to

render the grant of consent valid.”3

        To establish the voluntariness of consent after an illegal search, the State must

prove by clear and convincing evidence that the taint inherent in the illegality had

dissipated by the time consent was given. Brick v. State, 738 S.W.2d 676, 680–81 (Tex.

Crim. App. 1987); Orosco v. State, 394 S.W.3d 65, 75 (Tex. App.—Houston [1st Dist.]

2012, no pet.). In making the determination, we consider the following factors: (1) the

temporal proximity between the unlawful search and the given consent; (2) whether the

warrantless search brought about police observation of the particular object for which

consent was sought; (3) whether the search resulted from flagrant police misconduct; (4)

whether the consent was volunteered or requested; (5) whether appellant was made fully

aware of the right to refuse consent; and (6) whether the police purpose underlying the

illegality was to obtain the consent. Orosco, 394 S.W.3d at 75 (citing Brick, 738 S.W.2d

at 680–81). The State contends that the trial court misapplied factors two, three, and six;

that it placed too little weight on factor five; and that it placed too much weight on factor

one. We will address all of the factors in turn.




        3  The State does not argue that police had probable cause to conduct the search by virtue of Pena’s
admission that there was cocaine and a handgun in his house. We note that this admission was given only
after the initial unlawful search and would therefore be subject to a similar attenuation analysis.

                                                    15
       First, with respect to temporal proximity between the search and the consent, we

find that consideration of this factor weighs against a finding of voluntariness. The record

shows that less than one hour elapsed between the time police conducted the “free air

sniff” and the time Pena signed the written consent form, and the State concedes that

Pena’s consent was given a “relatively short time” after police entered his property. The

State argues, though, that the trial court weighed the factor too heavily because temporal

proximity “is perhaps the least important of the Brick factors.” In support of this assertion,

the State cites Bell v. State, in which the court of criminal appeals held that temporal

proximity of an unlawful arrest to a confession is generally not a “strong determining factor

per se” in determining whether the “causal chain” between an illegal arrest and a

confession is broken so that the confession is considered voluntary. 724 S.W.2d 780,

788 (Tex. Crim. App. 1986). The State posits that “[c]onsent to search is obviously a

comparable issue to voluntarily confessing as both involve questions of whether a party

has had their will overborne by improper police conduct.” We agree that the issues are

similar. However, the Bell Court merely held that proximity is “generally not a strong

determining factor per se”—that is, by itself; it did not hold that the factor should be

accorded less weight than the other factors. See id. at 788–89 (emphasis added). In any

event, the court of criminal appeals found that “an inference of a lack of time for reflection”

is warranted where there is “close temporal proximity” and no “significant intervening

circumstances”; and it concluded that consideration of this factor “militate[s] heavily

against admission” of the confession. Id. at 789, 790. The fact that the Bell Court seems

to have prominently considered the temporal proximity factor in its analysis undercuts the

State’s claim that the factor is of narrow significance.



                                              16
       Next, as to the second Brick factor, the trial court found that the drug dog alert

constituted an “observation” of the particular object for which consent was sought—i.e.,

narcotics. The State argues that this conclusion is “plainly erroneous” because “smell is

obviously not the same thing as sight” and because “smell is obviously a much less

reliable sense than sight in determining the presence of contraband.” But the State does

not cite any case law, and we find none, establishing that an “observation” as

contemplated by the second Brick factor must be visual in nature as opposed to olfactory.

We see no reason to interpret Brick in such a fashion. Here, police came to Pena’s

residence knowing that an anonymous informant had reported narcotics activity there;

they then used the drug dog to confirm their suspicions. The fact that they later sought

Pena’s consent to search the entire house does not change the fact that the drug dog

alert informed them that drugs were present inside the house—which was exactly what

officers anticipated finding upon obtaining Pena’s consent to search. Consideration of

this factor therefore also weighs against a finding of voluntariness.

       Third, the State contends that the trial court erred in determining that police

engaged in “flagrant” misconduct. The State emphasizes that Jardines was not decided

until ten months after the search and that the officers’ conduct was legal under prior Texas

case law. See, e.g., Rodriguez v. State, 106 S.W.3d 224, 230 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d) (holding that “use of a drug-dog to sniff for narcotics outside

appellant’s house was not a ‘search’” and that “neither the sniff nor its use to obtain a

warrant violated the federal or state constitution”), overruled by Jardines, 133 S.Ct. at

1417–18. Therefore, according to the State, the police conduct could not have been

“flagrantly” improper.



                                            17
        The State is correct that a “free air sniff” would not have been deemed an illegal

search under the case law as it existed as of May 29, 2012. See, e.g., Rodriguez, 106

S.W.3d at 230. However, the trial court’s finding as to this factor was based on more than

just the “free air sniff.” It was based on the totality of the circumstances as revealed in

the record, which includes the fact that four officers equipped with firearms and body

armor entered Pena’s property and surrounded his house4 based solely on an

anonymous unverified tip; that they did so without conducting any prior surveillance on

the house and without any indication of illicit activity at the time of entry; and that they

continued to ask Pena for consent to search even after he refused to give consent.5 In

light of all these circumstances, we find that the trial court did not err in determining that

this factor weighs against a finding of voluntariness.




         4 The State contends that “meander[ing] into the backyard” was permissible under pre-Jardines

case law. However, a backyard was considered “curtilage” of the defendant’s residence in Cooksey, which
preceded Jardines. See Cooksey v. State, 350 S.W.3d 177, 184–85 (Tex. App.—San Antonio 2011, no
pet.). The State argues that Cooksey is distinguishable because the court was “very fact specific as to why
the backyard of the residence in that case was off-limits,” and that it “did not establish a bright-line
prohibition against police approaching the backside of a residence.” That may be true, but the “very fact
specific” circumstances in Cooksey are also largely applicable in this case. For example, as in Cooksey,
Pena’s backyard was located in a wooded area and was not visible from the main road or from the front of
the home. See id. at 184. We therefore do not believe that the officers’ conduct in this case would have
necessarily been lawful under the then-existing case law.
         The State also notes that “[t]he primary purpose of the Exclusionary Rule is to deter police activity
which could not have been reasonably believed to be lawful by the officers committing same,” Drago v.
State, 553 S.W.3d 375, 378 (Tex. Crim. App. 1977) (citing United States v. Peltier, 422 U.S. 531 (1975)),
and it argues that this purpose would not be served by exclusion of the evidence at issue here because
“[y]ou can’t deter someone from violating the law[] when they honestly believe they are following the law
and in fact were following the law as it existed at that specific moment.” However, as set forth above, the
police conduct in this case would not necessarily be lawful under the pre-Jardines case law. Moreover, the
statutory exclusionary rule does not limit its applicability to situations where deterrence is feasible. See
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West, Westlaw through 2013 3d C.S.). Accordingly, we reject
the State’s contention that the exclusionary rule should not apply.
        5As set forth above, Jameson testified that he told Pena: “‘It simply comes down to “Yes” or “No.”
Either you let us search or, no, you don’t.’” A more accurate description of the officers’ approach in this
case would be: “Either you let us search or no, you don’t, in which case we will continue to ask you to let
us search.”

                                                     18
       Fourth, the State concedes that police requested Pena’s consent to search and

that Pena did not volunteer his consent. The fact that police continued to ask for Pena’s

consent even after he initially refused consent is especially relevant to this factor. This

factor weighs against a finding of voluntariness.

       As to the fifth factor, Pena acknowledges that he was made aware of his right to

refuse consent prior to signing the consent form. This factor weighs in favor of a finding

of voluntariness. The State contends that this factor should be regarded as the “most

important of the Brick factors” because “[k]nowledge of your right to refuse consent is

extremely powerful and obviously goes a long way in mitigating the damage from any of

the other Brick factors that support suppression.” The State contends that “the trial court’s

finding that [Pena] knew he had the right to refuse consent should weigh very heavily in

favor of a finding of voluntariness in this case.” We disagree. The State does not cite

any authority, and we find none, suggesting that this factor should be accorded any more

or less weight than the others. In any event, the fact that a suspect knows of his right to

decline consent does not, by itself, show that consent was voluntary. The entire point of

Brick and its progeny is that fully informed consent may nevertheless be considered

involuntary because of prior improper police conduct. See Brick, 738 S.W.2d at 681 (“We

now hold that before it can be determined that evidence derived from a warrantless but

consensual search following an illegal arrest is admissible, it must first be found, by clear

and convincing evidence, not only that the consent was voluntarily rendered, but also that

due consideration of the additional factors listed above militates in favor of the conclusion

that the taint otherwise inherent in the illegality of the arrest has dissipated.”). Here, in

particular, even though Pena was certainly made aware of his right to refuse consent, a



                                             19
reasonable person in Pena’s position may have believed, based on the officers’

representations that a trained drug-sniffing dog alerted to his front door, that refusal to

consent would be futile because it was only a matter of time before police returned with

a warrant to search. Under such circumstances, Pena’s knowledge of his right to refuse

consent, while a factor weighing in favor of voluntariness, does not necessarily outweigh

consideration of the other relevant factors.

       Finally, as to the sixth Brick factor—whether the police purpose underlying the

illegality was to obtain consent—the State argues that the trial court erred in weighing this

factor against voluntariness. It argues that it would have been “illogical” for police to have

undertaken the conduct at issue with the intent of obtaining consent to search since, under

pre-Jardines law, they could have obtained a warrant with the probable cause generated

from the curtilage sniff. See, e.g., Rodriguez, 106 S.W.3d at 230. The State contends

that “the obvious intent of the officers in bringing the drug dog onto [Pena’s] property and

having it conduct a free air sniff was not to overbear [his] will and get him to grant consent

to search but rather to conduct a free air sniff that would give them the means to obtain a

search warrant.” In our view, this theory does not pass the “sniff” test. It does not explain

why the officers persisted in asking Pena for consent to search even after the drug dog

alerted to his property and even after Pena initially refused his consent. It does not

account for why, as Jameson testified, the officers would not let Pena’s wife return to her

house without police accompaniment.         It does not explain why McDonald retrieved

evidence collection equipment and brought it into Pena’s house prior to the grant of

consent. And it does not account for why police felt the need to station themselves at the

rear of the residence in order to ensure their safety. Instead, we believe the record firmly



                                               20
supports the trial court’s conclusion that the intent of the officers in this case was to obtain

consent to search on the basis of the “free air sniff.” Consideration of this factor weighs

against a finding of voluntariness.

       In light of all the Brick factors, deferring to the trial court’s fact findings but reviewing

its legal conclusions de novo, see Martinez, 348 S.W.3d at 923, we conclude that the trial

court did not err in determining that Pena’s consent was given involuntarily. We place

particular emphasis on the sequence of events as established by the officers’ testimony.

In particular, the record shows that Pena first refused consent; then the officers advised

Pena of the results of the warrantless curtilage search; then Pena began to ask questions

of police and eventually signed the consent form. This strongly supports an inference

that the principal reason for Pena’s decision to grant consent was his knowledge of the

fact that a drug-sniffing dog had alerted to the curtilage of his residence—a fact that would

have been enough to allow police to obtain a search warrant at the time, but which is now

deemed illegal. See Jardines, 133 S.Ct. 1417–18; Rodriguez, 106 S.W.3d at 230. The

trial court did not abuse its discretion in granting the motion to suppress.

                                        III. CONCLUSION

       We affirm the judgment of the trial court.



                                                     DORI CONTRERAS GARZA,
                                                     Justice

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

Delivered and filed the
30th day of December, 2014.




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