                       NUMBERS 13-13-00665-CR & 13-13-00666-CR

                                     COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                                        Appellant,

                                                      v.

MICHAEL ERIC RENDON,                                                                           Appellee.


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


                                            OPINION
                   Before Justices Rodriguez, Garza, and Benavides
                            Opinion by Justice Benavides

          By four issues, which we consolidate into one, the State of Texas appeals the trial

court’s orders granting appellee Michael Eric Rendon’s motions to suppress.1                         We

affirm.

          1   These cases have been consolidated for the purposes of this opinion on appeal.
                                         I.       BACKGROUND

        On May 8, 2012, Victoria, Texas police officers conducted a drug investigation at

an apartment complex located on Bingham Street following a confidential informant’s tip.

The police’s target suspect was Rendon, who was a resident of the apartment complex.

Victoria Police Detective Jason Stover and his police-trained dog, Baco, assisted other

officers in the investigation.

        Detective Stover testified that Baco initially conducted a warrantless “open-air

sniff” of the exterior of Rendon’s parked vehicle, which was located in the apartment

complex’s parking lot.         Following the sniff, Baco exhibited a “positive alert to the

presence of narcotics.”           At that point, other Victoria police officers approached

Rendon’s apartment, but Rendon exited his apartment and greeted the officers before

they were able to knock on his apartment door.2

        The other officers spoke to Rendon outside of his apartment, and the officers later

advised Detective Stover “by radio” to approach Rendon’s residence with Baco.

Detective Stover and Baco arrived at Rendon’s apartment door, and Baco again

conducted a warrantless sniff of the apartment’s door and “alerted [Detective Stover] to

the odor of illegal narcotics.” After the positive alert, Detective Stover returned Baco to

his police unit and joined the other officers outside of Rendon’s apartment.                         Police

officers then requested Rendon’s consent to search his apartment, but Rendon declined.

Detective Stover testified that because Rendon declined consent to search his


        2   The record establishes that the rectangular building holds four separate apartment units over two
floors. The first two units are located on the ground floor, and the remaining two units are located on the
second floor. A straight continuous staircase leads visitors and residents to the second floor. At the
stairway’s landing, the path splits left and right. Each second-floor apartment has a patio area immediately
in front of its doorway. Rendon’s apartment was located on the left side of the second floor.


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apartment, he applied for a search warrant of Rendon’s apartment and vehicle.         In his

search warrant application affidavit, Detective Stover noted Baco’s “positive” alerts to the

odor of narcotics from the “open-air sniff” outside of Rendon’s vehicle, as well as after

sniffing the “bottom left portion” of Rendon’s apartment door.          Detective Stover’s

application for the search warrant was granted by a magistrate and executed the same

day.

          The record is unclear as to what exactly was seized from Rendon’s vehicle or

apartment following the execution of the search warrant.      However, in appellate cause

number 13-13-00665-CR, a Victoria County grand jury indicted Rendon for possession

of marijuana in an amount of five pounds or less but more than four ounces, a state jail

felony.     See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through 2013

3d C.S.). In appellate cause number 13-13-00666-CR, the same grand jury indicted

Rendon for money laundering, a state jail felony.          See TEX. PENAL CODE ANN. §

34.02(e)(1) (West, Westlaw through 2013 3d C.S.).

          After his arrest, Rendon was charged with possession of marijuana and money

laundering and filed a motion to suppress in each respective case. Rendon sought to

suppress, in relevant part, any and all evidence that was seized by the Victoria Police

Department pursuant to the execution of Detective Stover’s search warrant.         Rendon

attacked the warrant on Fourth and Fourteenth Amendment grounds, see U.S. CONST.

amends IV, XIV, as well as under Article I, Sections 9, 10, and 19 of the Texas

Constitution.    See TEX. CONST. art. I, §§ 9, 10, 19.   Specifically, Rendon asserted that

Detective Stover’s affidavit lacked probable cause to support the search and arrest. At

the consolidated suppression hearing, Rendon’s counsel argued that Baco’s sniff of


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Rendon’s apartment door was an unconstitutional search under the Fourth Amendment,

and thus, insufficient probable cause supported the warrant.               The trial court agreed and

granted Rendon’s motions.

        In its identical orders granting Rendon’s motions to suppress, the trial court issued

findings of fact and conclusions of law and found that Baco searched the “curtilage” of

Rendon’s apartment and that such a search was illegal under the Fourth Amendment,

citing Florida v. Jardines, 133 S.Ct. 1409, 1417–18 (2013).                    The trial court further

concluded that after excluding the tainted search from Detective Stover’s affidavit, the

remaining information did not establish probable cause to issue a warrant to search

Rendon’s apartment.         This appeal followed.         See TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(5).

                                    II.     MOTION TO SUPPRESS

        By one consolidated issue, the State asserts that the trial court erred by granting

Rendon’s motions to suppress.3

A.      Standard of Review

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

standard of review, where we give almost total deference to the historical facts found by

         3 The State presented four issues for our review. For brevity, we will address each of the four

issues under one analysis. See TEX. R. APP. P. 47.1. The State’s original four issues were stated as
follows:

        (1) Is the standard of review in this case de novo?

        (2) Is the passageway leading up to an apartment part of the common area of the
            apartment or part of the curtilage of the apartment?

        (3) Did the trial court commit reversible error by finding that [Rendon] had met his burden
            to show that the search warrant against him was invalid?

        (4) Did the State procedurally default by not asserting that the passageway from the
            stairway to [Rendon’s] apartment was not part of the curtilage at the trial level?

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the trial court and review de novo the trial court’s application of the law to those facts.

State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford the same amount of deference to

trial courts' rulings on application of law to fact questions, also known as “mixed

questions of law and fact, if the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor.      Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997).

       A defendant who alleges a violation of the Fourth Amendment has the burden of

producing evidence that rebuts the presumption of proper police conduct.            State v.

Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011).            He may carry this burden by

establishing that the search or seizure occurred without a warrant.         Id. The burden

then shifts to the State to prove the reasonableness of the search or seizure.     Id.

B.     Discussion

       We first examine whether Rendon carried his burden to rebut the presumption of

proper police conduct. Rendon argues that the affidavit presented to the magistrate

lacked probable cause because it was based on an unconstitutional sniff by Baco, and

the remaining information in the affidavit was erroneous and insufficient to support a

finding of probable cause.

       A magistrate shall not issue a search warrant without first finding probable cause

that a particular item will be found in a particular location.   McLain, 337 S.W.3d at 272.

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 specific location.

Id.   When the trial court determines whether probable cause exists to support the


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issuance of a search warrant, there are no credibility determinations; rather, the trial

court is constrained to the four corners of the affidavit.   Id. at 271. When reviewing a

magistrate’s decision to issue a warrant, we apply a highly deferential standard because

of the constitutional preference for searches to be conducted pursuant to a warrant.   Id.

As long as the magistrate had a substantial basis for concluding that probable cause

existed, we will uphold the magistrate’s probable cause determination.    Id.

       An evaluation of the constitutionality of a search warrant should begin with the

rule that “the informed and deliberate determinations of magistrates empowered to issue

warrants are to be preferred over the hurried action of officers who may happen to make

arrests.”    Id. at 272. When reviewing the issuing magistrate’s determination, we

interpret the affidavit in a commonsensical and realistic manner, rather than a

hypertechnical manner, recognizing that the magistrate may draw reasonable

inferences.    Rodriguez v. State, 232 S.W.3d 55, 59–61 (Tex. Crim. App. 2007).

       1. Dog Sniff

       Rendon first argues that the State lacked probable cause to obtain a search

warrant because the basis for the warrant was an unconstitutional search by Detective

Stover with Baco at Rendon’s door.          The United States Supreme Court recently

addressed the constitutionality of the use of drug-sniffing dogs in Florida v. Jardines.

133 S.Ct. at 1414–18. In Jardines, the Court reiterated that “when ‘the Government

obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a

search within the original meaning of the Fourth Amendment’ has ‘undoubtedly

occurred.”     Id. at 1414 (quoting United States v. Jones, 132 S.Ct. 945, 950–51 n.3

(2012)).      The Jardines Court further noted that when it comes to the Fourth


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Amendment, the home is “first among equals,” because at the Amendment’s “very core,”

stands “the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.”      Id. (quoting Silverman v. United States, 365

U.S. 505, 511 (1961)).

       Additionally, the United States Supreme Court has recognized that the “curtilage,”

or the area immediately surrounding and associated with the home, is “‘part of the home

itself for Fourth Amendment purposes.’”     Id. (quoting Oliver v. United States, 466 U.S.

170, 180 (1984)).      The Court noted that “[w]hile the boundaries of the curtilage are

generally ‘clearly marked,’ the ‘conception defining the curtilage’ is at any rate familiar

enough that it is ‘easily understood from our daily experience.’”   Id. (quoting Oliver, 466

U.S. at 182, n.12). Utilizing these principles, the Jardines Court upheld the Florida

Supreme Court’s holding that the Miami-Dade Police Department’s use of trained police

dogs to investigate a home and its immediate surroundings was a “search” within the

meaning of the Fourth Amendment that was unsupported by probable cause, rendering

the warrant invalid.   See id. at 1417–18; see also Jardines v. State, 73 So.3d 34, 55–56

(Fla. 2011).

       We now turn to the facts of the present case.        Detective Stover’s testimony

reveals that he used Baco to conduct a warrantless search of Rendon’s apartment door

at the request of other officers who were speaking to Rendon at the time outside of

Rendon’s apartment.        Detective Stover provided no other reason to support the

warrantless search. Rendon argues that this sniff search occurred in the curtilage of his

apartment, and was, thus, unreasonable under Jardines and the Fourth Amendment.

The State argues that because Baco’s sniff occurred in the passageway leading up to


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Rendon’s apartment, it was a “common area” of the apartment complex and not

protected by the Fourth Amendment. We agree with Rendon.

       According to Detective Stover’s testimony and affidavit requesting a search

warrant, Baco sniffed the “bottom left portion” of Rendon’s apartment door and indicated

the odor of narcotics “from within” Rendon’s apartment.     However, facts from the record

support Rendon’s curtilage argument, including that (1) Rendon’s apartment was the

only apartment on the upper-left side of the building; (2) Rendon’s neighbor, John Crook,

who lives in the apartment on the upper-right side of the building, testified that he hangs

plants along the railing in front of his apartment; and (3) Defendant’s Exhibit 3, a

photograph of Rendon’s apartment building taken from the parking lot, depicts that

Rendon’s downstairs neighbor has chairs in the area immediately in front his apartment

as well.   Logically, this means that at the time of Baco’s sniff, Rendon’s door was

closed, and the sniff occurred immediately in front of the apartment’s door.      Based on

this record, we conclude that the area immediately in front of Rendon’s apartment is no

different from the front porch of a free-standing home. Thus, bringing a trained police

dog to sniff the bottom left portion of Rendon’s apartment door in hopes of discovering

incriminating evidence exceeded the scope of any express or implied license allowed

under the Fourth Amendment.         See Jardines, 133 S.Ct. at 1416 (noting that “the

knocker on the front door is treated as an invitation or license to attempt an entry,

justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”).

       The State misplaces its reliance on our sister court’s holding in Evans v. State,

995 S.W.2d 284, 285–87 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) to support its

“common area” argument. We find Evans distinguishable and inapplicable.           In Evans,


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the appellant sought to suppress evidence obtained from a search of her apartment on

the basis that officers entered her apartment complex’s common areas in an

unauthorized manner.    Id. at 286. The present case does not deal with the common

areas of an apartment complex, as discussed in Evans, such as parking lots and

sidewalks, but rather the curtilage of Rendon’s apartment. Therefore, we hold that

police conducted an unreasonable search by using a trained police dog to investigate the

curtilage of Rendon’s apartment.   See U.S. CONST. IV; TEX. CONST. art. I, § 9; see also

Jardines, 133 S.Ct. at 1417–18.

      2. Residual Probable Cause

      Despite our holding that police conducted an unreasonable search of Rendon’s

home and used the tainted search results to establish probable cause in order to obtain a

search warrant, we must continue our inquiry and “put aside all tainted allegations” to

determine whether the remaining independently acquired and lawful information stated

in the affidavit clearly established probable cause.     See McClintock v. State, ___

S.W.3d ___, No. PD–0925–13, at *3 (Tex. Crim. App. Oct. 1, 2014) (recognizing the

principle of “residual probable cause” as stated in Castillo v. State, 818 S.W.2d 803, 805

(Tex. Crim. App. 1991), overruled on other grounds by Torres v. State, 182 S.W.3d 899,

901–02 (Tex. Crim. App. 2005)).

      In the remainder of his probable cause affidavit, Detective Stover stated that

Victoria police officers conducted a drug investigation at Rendon’s apartment complex

on May 8, 2012.    Detective Stover stated that in the parking lot of the complex, Baco

conducted a sniff test upon a parked white Coors Lite Hartman Distributing Chevrolet

HHR and a parked red four-door Cadillac.    According to the affidavit, Baco displayed an


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“extreme change in behavior and breathing” when he sniffed the Chevrolet vehicle,

indicating a “positive alert to the odor of narcotics from within.” Detective Stover also

provided the following information in his affidavit:

       Prior to [the May 8, 2012] investigation, a confidential informant working
       under the direction [sic] purchased a large amount of cocaine from an
       individual whose supplier arrived from another location to the buy location.
       On the first purchase of cocaine, the supplier showed up in a red 4 door
       vehicle. The surveillance vehicle was too far away at this time to make
       out the model of the vehicle.

       During the second buy, a Hartman Distributing HHR showed up and
       supplied cocaine to the “middle man” who in turn was given the money for
       the cocaine by the confidential informant.

       A license plate was obtained off of the Harman Distributing [sic] by SCU
       personnel. Sgt. Jameson contacted the owner of Hartman Distributing
       and requested to know who had been driving the vehicle on this date.
       The owner advised that Michael Rendon had been driving the vehicle on
       the date of the confidential informant’s purchase of cocaine.

       Surveillance was conducted on this location following this information
       being provided. At this time, SCU personnel learned that Michael Rendon
       also owned and operated a red 4 door Cadillac.

       After reviewing the four corners of the affidavit “in a commonsensical and realistic

manner,” see Rodriguez, 232 S.W.3d at 59–61, and giving the appropriate deference to

the magistrate, see McLain, 337 S.W.3d at 271, we cannot conclude that the remaining

“independently acquired and lawful information stated in the affidavit” clearly establishes

probable cause to search Rendon’s apartment.           After setting aside Baco’s sniff of

Rendon’s apartment door, the remaining allegations contained in Detective Stover’s

affidavit focus on establishing Rendon’s identity and his use of the Chevrolet vehicle to

transport drugs.   Nothing in the remainder of the affidavit establishes that under the

totality of the circumstances, there was a fair probability that contraband or evidence of a

crime would be found inside of Rendon’s apartment.        See id. at 272. Therefore, we

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conclude that the magistrate did not have a substantial basis for concluding that

probable cause existed to search Rendon’s apartment.

       3. Summary

       In sum, we conclude that Rendon met his burden to rebut proper police conduct.

Under Jardines, Detective Stover conducted an unreasonable search of Rendon’s home

by entering the curtilage of Rendon’s apartment and using a trained dog to sniff

Rendon’s door to find incriminating evidence.    Furthermore, after “putting aside” the

information derived from the dog sniff from the search warrant affidavit, we cannot

conclude that the affidavit clearly established probable cause to search Rendon’s

apartment. Without probable cause, the search warrant was invalid.      The State’s sole

issue on appeal is overruled.

                                  III.   CONCLUSION

       We affirm the trial court’s orders granting Rendon’s motions to suppress.




                                                      __________________________
                                                      GINA M. BENAVIDES,
                                                      Justice


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

Delivered and filed the
4th day of December, 2014.




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