Affirm; Opinion Filed April 17, 2013.




                                                           S
                                                         In The
                                                   Court of Appeals
                                            Fifth District of Texas at Dallas

                                                      No. 05-12-00699-CR
                                                      No. 05-12-00700-CR

                                          THE STATE OF TEXAS, Appellant
                                                      V.
                                           SCOTT WILLIAMSON, Appellee

                              On Appeal from the County Criminal Court No. 5
                                           Dallas County, Texas
                             Trial Court Cause Nos. MA11-22852 & MA11-22801

                                                      OPINION
                                        Before Justices Francis, Lang, and Evans
                                               Opinion by Justice Evans
          In a pretrial suppression hearing, Scott Williamson challenged the admission of evidence

recovered pursuant to a search warrant issued in his two cases for possession of marijuana. 1 A

magistrate issued the search warrant based, in pertinent part, on an “alert” by a drug dog at the

front door of appellee’s home. The trial court granted appellee’s motions to suppress the fruits

of the search. The State appealed, arguing primarily that the dog’s alerting at the front door was

sufficient to justify the magistrate’s issuing the search warrant in the cases. Based on the recent

United States Supreme Court opinion of Florida v. Jardines, No. 11-564, 2013 WL 1196577

(U.S. 2013), we affirm the trial court’s judgment.

     1
       The records show appellant was charged in two separate cases, but the parties agree there was only one substantive charge. Each of the
cases pertained to the same quantity of marijuana found in appellee’s possession at the time of the search.



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                                             BACKGROUND

       The trial court in appellee’s cases decided the motions to suppress based strictly on the

search warrant affidavit and the argument of the parties. The affidavit, given by Farmers Branch

police officer Phillip Foxall, stated that another peace officer, an Investigator McCain, had

received information from a third officer, Investigator Tommy Hale, that appellee was growing

marijuana at a particular address. Hale also told McCain that he was aware appellee had an

active warrant for his arrest for driving while intoxicated. McCain verified that appellee paid the

water utilities at the alleged address and confirmed that appellee had an active warrant for DWI,

in addition to a prior conviction for possession of dangerous drugs.

       Foxall then contacted Farmers Branch K-9 Officer Morgan and asked Morgan to “deploy

his K-9 partner ‘Kilo’ to conduct an open air sniff of the front exterior of the suspected place.”

Foxall listed the training and certification for Morgan and Kilo, then he stated that when Kilo

and Morgan approached the front door of appellee’s residence, Kilo alerted by sitting next to the

front doorway. After being walked away from the front door, Kilo again alerted when he was

walked near the front doorway. Based on the above information, a magistrate issued a search

warrant, the fruits of which resulted in the two instant cases against appellee.

       After considering counsel’s arguments at the suppression hearing, the trial court granted

the motions to suppress. The trial judge did not discuss the issue of the dog sniffing at appellee’s

front door, but instead focused on where Hale had received his information about appellee's

criminal activity and links to his home and how fresh or accurate the information may have been.

The judge also noted that the officer could not enter appellee’s house and arrest him based on a

misdemeanor DWI warrant.



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                                           ANALYSIS

       In three issues on appeal, the State contends the trial court erred in granting appellee’s

motions to suppress the fruits of the search warrant. It specifically argues that the facts alleged

in the affidavit establish probable cause and the act of walking Kilo up onto appellee's front

porch did not constitute an illegal warrantless search. The State further maintains that because so

little legal authority exists on this issue, concluding a search warrant invalid based on a

warrantless dog sniff outside a residence was “inconsistent with the very rationale that justified

the existence and application of the exclusionary rule.” In its brief, however, the State also

admitted that without the evidence of the positive alerts by Kilo at appellee’s door, “the warrant

affidavit would not have provided sufficient probable cause for the magistrate to have issued a

warrant based thereon.”

       After the parties filed their briefs and presented oral argument in these cases, the United

States Supreme Court issued its opinion in Florida v. Jardines, No. 11-564, 2013 WL 1196577

(U.S. 2013), a case which the State conceded would be dispositive of the instant appeals. In

Jardines, the Court held that the government’s use of trained police dogs to investigate the home

and its immediate surroundings is a search in the context of the Fourth Amendment. Jardines,

2013 WL 1196577 at *7. The Court ruled that introducing a trained police dog to explore the

front porch of a home in hopes of discovering incriminating evidence amounts to an unlicensed

physical intrusion into a constitutionally protected area. See id. at **4–5. Here, the police did

exactly that, and they did so without a warrant.

       Following the issuance of Jardines, the State filed a motion providing notice of issuance

of subsequent dispositive legal authority. The State conceded that the issuance of Jardines

seems to be dispositive of the instant cases “in a manner that is in no way supportive of the

State’s position herein.” We agree. Although the State initially relied on cases from other Texas
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courts of appeals to support its position that the warrantless drug sniff did not constitute a search

for Fourth Amendment purposes, those courts did not have the benefit of the Supreme Court’s

ruling in Jardines. See, e.g., Romo v. State, 315 S.W.3d 565, 573 (Tex. App.—Fort Worth 2010,

pet. ref’d); Rodriguez v. State, 106 S.W.3d 224, 230 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d); Porter v. State, 93 S.W.3d 342, 346–47 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d).

          The trial court did not err in granting the motions to suppress. See Estrada v. State, 154

S.W.3d 604, 607 (Tex. Crim. App. 2005) (holding we must uphold trial court’s ruling if it is

correct under any theory of law applicable to case). We resolve the State’s three issues against it

and affirm the trial court’s orders granting appellee’s motions to suppress.




                                                      /David W. Evans/
                                                      DAVID W. EVANS
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

120699F.U05




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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                        On Appeal from the County Criminal Court
                                                     No. 5, Dallas County, Texas
No. 05-12-00699-CR          V.                       Trial Court Cause No. MA11-22852.
                                                     Opinion delivered by Justice Evans.
SCOTT WILLIAMSON, Appellee                           Justices Francis and Lang participating.

       Based on the Court’s opinion of this date, the order of the trial court granting appellee’s
motion to suppress is AFFIRMED.


Judgment entered this 17th day of April, 2013.




                                                     /David W. Evans/
                                                     DAVID W. EVANS
                                                     JUSTICE




                                                 5
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                        On Appeal from the County Criminal Court
                                                     No. 5, Dallas County, Texas
No. 05-12-00700-CR          V.                       Trial Court Cause No. ma11-22801.
                                                     Opinion delivered by Justice Evans.
SCOTT WILLIAMSON, Appellee                           Justices Francis and Lang participating.

       Based on the Court’s opinion of this date, the order of the trial court granting appellee’s
motion to suppress is AFFIRMED.


Judgment entered this 17th day of April, 2013.




                                                     /David W. Evans/
                                                     DAVID W. EVANS
                                                     JUSTICE




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