
                              NO. 07-09-0234-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL A

                                APRIL 6, 2010

                       ______________________________


                        THE STATE OF TEXAS, APPELLANT

                                     V.

                        CHRIS ALLEN McLAIN, APPELLEE


                      _________________________________

                FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

              NO. B18002-0904; HONORABLE EDWARD LEE SELF, JUDGE

                       _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                             CONCURRING OPINION

      Appellee's business and residence were searched pursuant to  a  search
warrant, issued by a magistrate, based upon an  affidavit  which  the  trial
court found lacked a substantial basis for concluding that a search  of  the
described premises would uncover evidence of  wrongdoing  at  the  time  the
warrant was issued.  Examining the four corners of the affidavit, the  trial
court found that the affidavit lacked any  specificity  regarding  when  the
matters referenced occurred because the only temporal  statement  concerning
evidence to be seized was as follows:

      In the past 72 hours, a confidential  informant  advised  the  Affiant
      that Chris was seen in possession of a large amount of methamphetamine
      at his residence and business.




The trial court concluded that the reference to "the past 72  hours"  was  a
reference to when the affiant spoke to the confidential informant and not  a
reference  to  when  the  confidential  informant  witnessed   Appellee   in
possession of the contraband.  Based upon  that  finding,  the  trial  court
granted Appellee's motion to suppress evidence seized as  a  result  of  the
execution of that search warrant.  In an appeal brought by  the  State,  the
majority has found, and I agree, that the trial  court  did  not  abuse  its
discretion in granting Appellee's motion to suppress.   While  I  concur  in
the result reached by the majority, I write separately because  I  interpret
the State's second issue differently than the majority.

      The majority construes the State's second  issue  as  contending  that
the trial court erred because the "good faith" exception  found  in  article
38.23(b) of the Texas Code of Criminal Procedure applies  so  as  to  exempt
the contested evidence  from  exclusion.   The  majority  then  proceeds  to
overrule that issue by explaining why that exception does not apply  to  the
situation where an officer's objective good faith reliance is based  upon  a
warrant that was not issued upon probable cause.  While I  agree  with  this
conclusion, I construe the State's contention differently.   I  believe  the
State is contending that Appellee did not raise a article  38.23  objection,
thereby waiving it, and that this Court should therefore apply a good  faith
exception to the application of the  exclusionary  rule  for  the  technical
violation of an accused's constitutional rights,  both  state  and  federal,
where the evidence is obtained  by  a  law  enforcement  officer  acting  in
objective  good  faith  reliance  upon  a  warrant  issued  by   a   neutral
magistrate.

      Neither the order granting Appellee's  motion  to  suppress,  nor  the
Findings of Fact and Conclusions of Law filed by the  trial  court,  specify
the basis upon which  the  evidence  seized  was  suppressed.   Furthermore,
neither the Brief for the Appellee filed in this cause,  nor  the  Brief  in
Support of Defendant's Motion to Suppress  Evidence,  ever  mention  article
38.23.  The only reference Appellee makes to article 38.23 is  contained  in
the Motion to Suppress, filed by his previous counsel, wherein he  generally
contends that the evidence was seized "in violation of  the  Fourth,  Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution,  Article
I, Section 9, 10, and 19 of the Constitution  of  the  State  of  Texas  and
under article 38.23 of the  Texas  Code  of  Criminal  Procedure."   To  the
extent that the trial court's basis for exclusion was  anything  other  than
article 38.23, I agree with the State's  contention  that  the  exclusionary
rule should not apply to the facts of this case.

      While the Fourth Amendment to  the  United  States  Constitution,  and
Article I, Section 9 of the Texas Constitution, both protect  the  right  of
the people to be secure in their persons, houses, and  possessions,  against
unreasonable searches and seizures, neither contains a  provision  expressly
precluding the use of evidence obtained  in  violation  of  their  commands.
The exclusionary rule  we  commonly  apply  is  a  judicially  created  rule
"designed  to  safeguard  Fourth  Amendment  rights  generally  through  its
deterrent effect."  Herring v. United States, 555 U.S. ___, 129  S.Ct.  695,
172 L.Ed.2d 496 (2009); United States v. Calandra, 414  U.S.  338,  348,  94
S.Ct. 613, 38  L.Ed.2d  561  (1974).   The  fact  that  a  Fourth  Amendment
violation occurs does  not  necessarily  mean  that  the  exclusionary  rule
applies and in determining its applicability to a given  set  of  facts  the
trial court must consider the  objective  reasonableness  of  not  only  the
officers who  originally  obtain  a  warrant,  but  also  the  officers  who
eventually execute the warrant.  Herring, 129 S.Ct. at  700;  United  States
v. Leon, 468 U.S. 897, 923, n. 24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

      In Herring, the police arrested  the  accused  based  upon  a  warrant
listed in their  computer  database.   A  search  incident  to  that  arrest
yielded drugs and a gun.  It was subsequently determined  that  the  warrant
had been recalled months earlier, though the warrant information  had  never
been removed from that database due to the negligence of  personnel  in  the
reporting jurisdiction's sheriff's office.  When  Herring  was  indicted  on
federal  gun  and  drug  possession  charges,  he  moved  to  suppress  that
evidence.  The trial court concluded that  the  exclusionary  rule  did  not
apply and denied the motion to suppress.  In  affirming  the  trial  court's
decision, the Supreme Court concluded that, although  Herring's  arrest  was
predicated  upon  an  invalid  warrant,  the   benefit   of   applying   the
exclusionary rule would be marginal  or  non-existent  where  the  arresting
officer was acting in objective  good  faith  when  he  reasonably  believed
there to be an outstanding warrant.  Herring, 129 S.Ct. at 704.

      That same logic reasonably applies here.  When officers  executed  the
search warrant in question in this case, they reasonably believed  that  the
warrant had been issued by a  neutral  magistrate  in  compliance  with  the
provisions of article 18.01 of the Texas Code of  Criminal  Procedure.   The
police misconduct here, if any, was bad grammar, not a  "systemic  error  or
reckless disregard of constitutional requirements."  Id.  In cases  such  as
this, the exclusionary rule should not automatically be applied.

      While I do not read the  State's  second  issue  as  narrowly  as  the
majority, in the final analysis, the majority's conclusion is  both  correct
and  controlling.   Although  Appellee  never  advocated  the  exclusion  of
evidence on the basis of article 38.23 at trial or on appeal, it  cannot  be
said that he waived  the  reference  thereto  in  his  motion  to  suppress.
Because the majority correctly concludes that  the  evidence  is  excludable
under article 38.23(b), and because  an  appellate  court  must  affirm  the
decision of the trial court regarding a motion to suppress if that  decision
is reasonably supported by the record and is correct upon any theory of  law
applicable  to  the  case,  Young  v.  State,   283   S.W.3d   854,   873-74
(Tex.Crim.App. 2009), I concur in the result reached by the majority.

                                          Patrick A. Pirtle
                                                Justice


Publish.
