            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                 NOS. PD-0013-15 & PD-0015-15

                                    THE STATE OF TEXAS

                                                  v.

                              MICHAEL ERIC RENDON, Appellee


                 ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE THIRTEENTH COURT OF APPEALS
                                VICTORIA COUNTY

       R ICHARDSON, J., filed a concurring opinion.

                                  CONCURRING OPINION

       To decide this case under Florida v. Jardines,1 we have to decide if there has been a

physical intrusion on Rendon’s property. I agree with the majority that this can be done

under the facts of this case because Detective Stover led Baco up the stairs of Rendon’s

apartment building and across the landing directly to Rendon’s apartment door,2 where Baco


       1
           No. 11-564, 133 S. Ct. 1409 (Mar. 26, 2013).
       2
         Detective Stover testified at the motion to suppress hearing that he “deployed Canine Baco
on the exterior of the apartment,” and that the dog “indicated a positive alert on the exterior of the
                                                                Rendon Concurring Opinion — 2

sniffed at the door and its threshold, then alerted Detective Stover to the presence of

narcotics inside the apartment.3 Consistently with the reasoning of Jardines, the majority

rightly concludes that law enforcement officers invaded the curtilage of Rendon’s apartment

because they brought a trained drug-detection dog directly up to the front door of an

apartment-home for the purpose of conducting a canine-narcotics sniff. An apartment should

be afforded some curtilage that carries with it the same property-based protections under

Jardines as the curtilage of a house. I also agree that, if we can decide this case under

Jardines by holding that the officers physically intruded into the curtilage of Rendon’s

apartment, there is no need to analyze whether the officers’ conduct violated Rendon’s

reasonable expectation of privacy under Katz. Every apartment, every home, has a front door

threshold. And, while the Supreme Court has generally “eschewed bright-line rules” 4 in the

Fourth Amendment context, the Supreme Court has drawn “a firm line at the entrance to the

house.”5 The front door threshold of an apartment qualifies as a “classic exemplar of an area


door.” John Crook, another tenant, also testified at the hearing. Crook lives in a unit directly across
the driveway from Rendon’s apartment. Crook testified that he observed the drug-detection dog go
up the stairs to Rendon’s front door and sniff at the door for “a couple of minutes.”
       3
         According to Detective Stover’s search warrant affidavit, he “deployed K-9 Baco on the front
door of the residence. K-9 Baco displayed a change in behavior and breathing at the bottom left
portion of the front door seem [sic] indicating the positive alert to the odor of illegal narcotics from
within.” The sole basis for the warrant to search Rendon’s apartment was the dog sniff of the
apartment door.
       4
           Ohio v. Robinette, 519 U.S. 33, 39 (1996).
       5
          Payton v. New York, 445 U.S. 573, 590 (1980) (stating the Fourth Amendment has “drawn
a firm line at the entrance to the house,” one which cannot be reasonably crossed without a warrant);
                                                                  Rendon Concurring Opinion — 3

adjacent to the home,” and could not reasonably be interpreted as a common area shared by

other apartment residents. I agree, therefore, that an apartment’s threshold and front door are

part of the apartment and thus constitute its curtilage—property “immediately surrounding

and associated with”6 the apartment. When Detective Stover led Baco directly to Rendon’s

front door threshold to sniff for drugs, the police investigation took place in a constitutionally

protected area.

        When discussing the scope of the Fourth Amendment’s protections, the Supreme

Court does not differentiate between the types of residences and whether they are owned or

rented. A home is a home, whether it is a single-family dwelling, or a condominium, a

duplex, or an apartment in a high-rise building, multi-unit complex, or public housing.7 The

court in People v. Burns expressed it well:

        The reasoning behind the Court’s use of a generic term when discussing the
        scope of the fourth amendment is obvious: homes come in different shapes,
        sizes, and forms. Some homes afford greater privacy from prying eyes (and
        noses) than others. One individual may live on a vast estate secluded from the
        public while another may live in a high-rise apartment building in the middle
        of a busy city. The fourth amendment protects both individuals’ right “to




United States v. Santana, 427 U.S. 38, 42 (1976) (“under the common law of property the threshold
of one’s dwelling is private”).
        6
            Jardines, 133 S.Ct. at 1414.
        7
          See Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring) (“[I]t is beyond
dispute that the home is entitled to special protection as the center of the private lives of our people.”).
                                                               Rendon Concurring Opinion — 4

       retreat into his own home and there be free from unreasonable governmental
       intrusion.” 8

       And, although it is not necessary to decide today whether the officers violated

Rendon’s expectation of privacy under Katz by bringing Baco directly up to the front-door

threshold to conduct a dog sniff, I write separately to call attention to Justice Kagan’s

discussion of Kyllo v. United States9 in her concurring opinion in Jardines. Justice Kagan

noted that the use of a drug-detection dog to investigate the contents of a home is no less a

“sense-enhancing technology” that is not in general public use than was the thermal-imaging

device in Kyllo v. United States.10 In Kyllo, the Supreme Court held that “obtaining by sense-

enhancing technology any information regarding the interior of the home that could not

otherwise have been obtained without physical ‘intrusion into a constitutionally protected

area,’ constitutes a search—at least where (as here) the technology in question [a drug-

detection dog] is not in general public use.”11 In this case, the police were using Baco to sniff

Rendon’s front door in order to discern if there were narcotics inside Rendon’s apartment.

The sniff at Rendon’s front door intruded on the privacy expectations Rendon had inside his

home. Even if one could argue that the dog was sniffing odors that were outside of the


       8
         25 N.E.3d 1244, 1252 (Ill. App. 4th Dist. 2015) (quoting Jardines, 133 S. Ct. at 1414
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961))).
       9
            533 U.S. 27 (2001).
       10
            Jardines, 133 S. Ct. at 1419-20 (Kagan, J., concurring).
       11
            Kyllo, 533 U.S. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
                                                           Rendon Concurring Opinion — 5

apartment and thus not within the privacy of Rendon’s home, a dog’s olfactory senses, being

so much stronger than a human’s, would render that reasoning inapplicable. In fact, dogs

have been known to detect certain types of cancers in humans using their sense of smell.12

A method of surveillance by which the government uses a device (such as a specially trained

drug-detection dog) that is not in general public use, to explore details of the home that

would previously have been unknowable without physical intrusion, could be considered a

search under the reasoning of Kyllo.

       With these comments, I join the majority.




FILED: December 16, 2015
PUBLISH




       12
         See Gianluigi Taverna, et al., Olfactory System of Highly Trained Dogs Detects Prostate
Cancer in Urine Samples, 193 J. OF U ROLOGY 1392 (Apr. 2015) available at
http://www.sciencedirect.com/science/article/pii/S002253471404573X. See also Meredith Cohn,
Woman Credits Search/Rescue Dog with Detecting Her Lung Cancer, S AN A NTONIO E XPRESS N EWS,
Dec. 8, 2015, at D1(reprinting from Meredith Cohn, Heidi the Dog’s Sniffing Leads to Owner’s
Cancer D iagnosis, B ALTIMORE SUN (Nov. 29, 2015, 7:36 PM ),
http://www.baltimoresun.com/health/bs-hs-dogs-sniff-disease-20151118-story.html.).
