Opinion issued November 5, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-11-00572-CR
                           ———————————
                 BRADLEY RAY MCCLINTOCK, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


              On Appeal from the 182nd Criminal District Court
                           Harris County, Texas
                       Trial Court Case No. 1280089


                           OPINION ON REMAND

      This case was remanded to us by the Court of Criminal Appeals. McClintock

v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014). That Court affirmed our initial

analysis and remanded to address in the first instance an issue first raised in the

State’s petition for discretionary review. On remand, we must determine whether,
under the facts of this case, an officer’s good-faith reliance on binding appellate

precedent operates as an exception to both the federal exclusionary rule and Texas

exclusionary statute. See id. at 20–21.

      We conclude that the judge-made Davis exception to the judge-made federal

exclusionary rule does not create an exception to the Texas exclusionary rule

adopted by the Texas Legislature. Because the search warrant in this case was not

based on probable cause, the Texas rule requires that the illegally obtained

evidence be suppressed, and a new trial is required.

                                    Background

      Appellant Bradley McClintock appealed his conviction for possession of

marijuana, arguing that evidence seized from his apartment pursuant to a search

warrant should have been suppressed. In the supporting affidavit used to procure

the warrant, Department of Public Safety Officer R. Arthur stated the following:

      Affiant received information that marijuana was being grown inside
      the 2nd floor residence located at 412 West Clay, Houston, Harris
      County, Texas. Affiant went to this location and found it to be located
      in Harris County, Texas. . . . Affiant and other peace officers with the
      Texas Department of Public Safety set up surveillance on this
      location. During surveillance of this location over the last week of the
      making of this affidavit, affiant observed the following: the
      downstairs of this location appears to be a business, there is an open to
      the public stairway that leads to the upstairs. . . . This stairway is open
      to the public in that it could easily be where a delivery person could or
      would make deliveries to the upstairs residence area. Affiant has
      observed a male individual come and go from this location, at hours
      well before and after the business hours of the business on the first



                                          2
      floor. Based on training and experience, Affiant found this to be
      consistent with possible narcotics activity.

      On September 29, 2010, Affiant approached this location. At this
      time, from the outside of this location, Affiant could smell, what
      Affiant knows from training and experience to be, marijuana. On this
      same date at approximately 11:30 pm, Affiant requested the assistance
      of a narcotics canine at this location. Affiant spoke with and obtained
      the assistance of Houston Police Department Canine Officer Kristin
      Uhlin and her canine partner “Sita”. Officer Uhlin stated that she and
      “Sita” are currently certified by the National Narcotics Detector Dog
      Association, # 48761, for the detection of the odors of marijuana,
      cocaine and methamphetamine. Affiant observed Officer Uhlin and
      “Sita” to deploy up to the second floor doorway using the open to the
      public stairway described above. Officer Uhlin stated to Affiant that at
      the doorway leading into the second floor of this location, “Sita” gave
      a positive alert at this location indicating the presence of one or more
      of the above named controlled substance.

On the basis of the Supreme Court’s decision in Florida v. Jardines, 133 S. Ct.

1409 (2013), issued while the appeal was originally pending in this court, we held

that the warrantless dog sniff conducted at McClintock’s back door was unlawful.

McClintock, 405 S.W.3d at 283–84. Setting aside that information, we concluded

that the remainder of the affidavit was insufficient to establish probable cause

necessary for a warrant. Id. at 284–88. We accordingly reversed the denial of

McClintock’s motion to suppress and remanded for a new trial. Id. at 288–89.

      The State petitioned the Court of Criminal Appeals for review of our

decision. In its first ground for review, the State asserted that Officer Arthur

conducted the dog sniff in good-faith reliance on previously binding appellate

precedent that held that a canine drug sniff did not constitute a “search” for Fourth


                                         3
Amendment purposes. McClintock, 444 S.W.3d at 18. Relying on the Supreme

Court’s decision in Davis v. United States, 131 S. Ct. 2419 (2011), the State argued

for the first time that pursuant to a good-faith exception to the exclusionary rule,

the dog-sniff evidence should not be excluded. In its second ground for review the

State argued, alternatively, that this court erred in its determination that the

remainder of the affidavit could not furnish the probable cause necessary to

support a search warrant. McClintock, 444 S.W.3d at 18.

      The Court of Criminal Appeals granted the State’s petition and considered

both grounds for review. In a published opinion, the Court agreed with our

determination that the remainder of the warrant affidavit did not clearly establish

probable cause. McClintock, 444 S.W.3d at 19–20. Nevertheless, the Court vacated

our judgment and remanded the case for consideration of the State’s new argument

regarding a good-faith exception to the federal and Texas exclusionary rules. Id. at

20–21. The Court observed that “the issue of the proper application of the

exclusionary rule to the facts of this case is not remotely clear cut,” and that, if its

resolution of the issue is eventually needed, it “would benefit from a carefully

wrought decision from the court of appeals.” Id.

                                       Analysis

      The question presented at this stage of the appeal is whether an exception

applied by federal courts to the exclusionary rule, established in Davis v. United



                                           4
States, also should apply in this case to permit reliance on illegally obtained drug

evidence. This question requires us to interpret and apply the Texas exclusionary

statute, Code of Criminal Procedure Article 38.23. Before turning to the parties’

arguments about whether the exception applies in this case, we first review the

scope of the exception established in Davis.

 I.   Davis v. United States

      In Davis, the police arrested petitioner Willie Davis for giving a false name

during a routine traffic stop. Davis, 131 S. Ct. at 2425. After the officers had

handcuffed Davis and secured the scene, they searched his vehicle and found a

gun. Id. As a result, Davis was indicted on charges of being a felon in possession

of a firearm. Id. at 2425–26. The officers had conducted the search of the vehicle

in reliance on the Eleventh Circuit’s interpretation of New York v. Belton, 453 U.S.

454, 101 S. Ct. 2860 (1981). Davis, 131 S. Ct. at 2425–26. Davis acknowledged

that then-existing precedent in the Eleventh Circuit allowed for the search of his

vehicle, but he still preserved the issue and appealed. Id. at 2426.

      As Davis’s appeal was pending, the Supreme Court decided Arizona v. Gant,

556 U.S. 332, 129 S. Ct. 1710 (2009). The new, two-part rule of Gant held that a

warrantless automobile search incident to arrest is constitutional only when (1) the

arrestee is within reaching distance of the vehicle during the search, or (2) the

police have reason to believe that the vehicle contains evidence relevant to the



                                           5
crime of arrest. Id. at 332, 129 S. Ct. at 1712. Applying the new rule from Gant,

the Eleventh Circuit concluded that the vehicle search incident to Davis’s arrest

was unconstitutional. See Davis, 131 S. Ct. at 2426. Nevertheless, the Eleventh

Circuit declined to apply the exclusionary rule to the illegally obtained evidence

based upon the officers’ good-faith reliance on judicial precedent. See id.

      The Supreme Court granted certiorari and considered “whether to apply the

exclusionary rule when the police conduct a search in objectively reasonable

reliance on binding judicial precedent.” Id. at 2428. The Court acknowledged that

Gant applied retroactively to the case and that the search was unlawful, despite the

fact that the officers’ conduct was not culpable. Id. at 2428, 2431. Rather than

viewing the issue as one of retroactivity, the Court based its analysis on the “good

faith” test it established in United States v. Leon, 468 U.S. 897 (1984). Davis, 131

S. Ct. at 2427–28.

      The Court recognized that exclusion of evidence “exacts a heavy toll on both

the judicial system and society at large,” but stated that the rule should nonetheless

be applied as a “last resort.” Id. at 2427. The “sole purpose” of the rule is to “deter

future Fourth Amendment violations.” Id. at 2426. Accordingly, exclusion is

appropriate only when its “deterrence benefits” outweigh its “heavy costs.” Id. at

2427. These circumstances exist when the police exhibit “deliberate, reckless, or

grossly negligent disregard for Fourth Amendment rights.” Id.



                                          6
      Applying the deterrence principles to the facts of the case, the Court

concluded that exclusion of evidence obtained in reliance on binding judicial

precedent would not be appropriate:

             About all that exclusion would deter in this case is
      conscientious police work. Responsible law-enforcement officers will
      take care to learn what is required of them under Fourth Amendment
      precedent and will conform their conduct to these rules. But by the
      same token, when binding appellate precedent specifically authorizes
      a particular police practice, well-trained officers will and should use
      that tool to fulfill their crime-detection and public-safety
      responsibilities. An officer who conducts a search in reliance on
      binding appellate precedent does no more than act as a reasonable
      officer would and should act under the circumstances. The deterrent
      effect of exclusion in such a case can only be to discourage the officer
      from doing his duty.

             That is not the kind of deterrence the exclusionary rule seeks to
      foster. We have stated before, and we reaffirm today, that the harsh
      sanction of exclusion should not be applied to deter objectively
      reasonable law enforcement activity.

Id. at 2429 (quotations omitted). Thus the Court established a new exception to the

federal exclusionary rule: “Evidence obtained during a search conducted in

reasonable reliance on binding precedent is not subject to the exclusionary rule.”

Id.

      The State argues at the outset that the Davis exception should apply in this

case because Officer Arthur acted in objectively reasonable good-faith reliance on

pre-Jardines precedent when he conducted the unlawful dog-sniff search. In

response, McClintock contends that we cannot apply the Davis exception to this



                                         7
case without first affording him a chance to develop a factual record regarding the

issue of good faith. See State v. Esparza, 413 S.W.3d 81, 89 (Tex. Crim. App.

2013) (refusing to uphold trial court’s ruling under an alternative theory of law

applicable to the case when the appellant did not have the opportunity to develop a

factual record on that issue). He also responds that no precedent in the relevant

jurisdiction specifically authorized the search, which he contends is a necessary

condition to applying the Davis exception.* See Davis, 131 S. Ct. at 2429; see also


*
      Numerous federal courts of appeals have addressed how explicit or
      settled the appellate precedent must be to trigger the Davis exception. A
      panel of the Third Circuit adopted a strict rule, holding that the precedent
      must be from within the Circuit and specific to the facts at hand. United
      States v. Katzin, 732 F.3d 187, 210 (3d Cir. 2013). That panel’s decision
      was vacated, however, and after rehearing the appeal en banc the court
      rejected such a narrow reading of Davis:

         Stated as a syllogism, if binding appellate precedent specifically
         authorizes the precise conduct under consideration, then it will likely
         be binding appellate precedent upon which police can reasonably rely
         under Davis. However, this does not make the reverse syllogism true,
         namely, that if a case is binding appellate precedent under Davis, then
         it must specifically authorize the precise conduct under consideration.
         Davis’ holding is broader: “[e]vidence obtained during a search
         conducted in reasonable reliance on binding precedent is not subject
         to the exclusionary rule.”

      United States v. Katzin, 769 F.3d 163, 176 (3d Cir. 2014) (en banc), cert.
      denied, 135 S. Ct. 1448 (2015). Other courts have also rejected the
      contention that “binding appellate precedent” requires precedent within
      the Circuit and specific to the facts at hand, instead focusing on whether
      reliance on a body of law is objectively reasonable. See United States v.
      Brown, 744 F.3d 474, 478 (7th Cir. 2014); United States v. Stephens, 764
      F.3d 327, 337 (4th Cir. 2014), cert. denied, 83 U.S.L.W. 3860 (U.S. Oct.

                                         8
id. at 2435 (“This case does not present the . . . question [of] whether the

exclusionary rule applies when the law governing the constitutionality of a

particular search is unsettled.”) (Sotomayor, J., concurring in the judgment).

      But we need not address the parties’ arguments about whether Officer

Arthur acted with objective good-faith reliance on binding precedent if Davis does

not create a valid exception to the Texas exclusionary statute. If good-faith reliance

on binding appellate precedent is not a valid exception to the Texas exclusionary

statute, then we must remand this cause to the trial court for a new trial without the

evidence that should have been suppressed.

II.   Application of the Texas exclusionary statute

      Both the U.S. and Texas constitutions protect against unreasonable searches

and seizures. The Fourth Amendment to the United States Constitution protects the

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

against unreasonable searches and seizures.” U.S. CONST. amend. IV. Similarly,

the Texas Constitution ensures that people “shall be secure in their persons,

houses, papers and possessions, from all unreasonable seizures or searches.” TEX.

CONST. art. I, § 9. Neither constitutional provision prescribes a remedy to be

      5, 2015); United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013).
      Nevertheless, precise rules about when reliance on appellate precedent is
      objectively reasonable are difficult to ascertain. See Brown, 744 F.3d at
      478 (“There is legitimate debate about whether precedent from Circuit A
      could be deemed ‘binding’ (for the purpose of Davis) when the search
      occurs in Circuit B, where the issue remains unresolved.”).

                                          9
applied when a person’s rights under the provision are violated. See Davis, 131 S.

Ct. at 2426 (“The [Fourth Amendment] says nothing about suppressing evidence

obtained in violation of this command.”); Perez v. State, 11 S.W.3d 218, 223 (Tex.

Crim. App. 2000) (“Whether a violation of [Article 1, Section 9] (e.g. an

unreasonable search) results in the suppression of evidence obtained as a result of

that violation (i.e. employment of an exclusionary rule) is a separate, collateral

issue not encompassed by the right granted in that constitutional provision.”)

(Keller, J., concurring in the judgment); see also Welchek v. State, 247 S.W. 524,

528–29 (Tex. Crim. App. 1922).

      Federal courts enforce a judge-made exclusionary rule to “compel respect

for the constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217, 80 S.

Ct. 1437, 1444 (1960). The federal rule harbors several exceptions for police

conduct that was conducted in reasonable reliance on a facially valid source of

legal justification. See Davis, 131 S. Ct. at 2428–29 (reliance on subsequently

invalidated binding appellate precedent); Illinois v. Krull, 480 U.S. 340, 350, 107

S. Ct. 1160, 1167 (1987) (reliance on a subsequently invalidated statute); United

States v. Leon, 468 U.S. at 922–24, 104 S. Ct. at 3420–21 (reliance on

subsequently invalidated warrant).

      In Texas, however, the exclusionary rule is not merely a judicial creation. It

was enacted by the Legislature. See TEX. CODE CRIM. PROC art. 38.23; Miles v.



                                        10
State, 241 S.W.3d 28, 33–36 (Tex. Crim. App. 2007) (explaining the history of

Article 38.23 and its precursors). The Texas exclusionary statute is “broader than

its federal counterpart” and is therefore more broadly protective of individual

rights. See Miles, 241 S.W.3d at 34.

      The federal constitution does not “limit the authority of the State to exercise

its police power or its sovereign right to adopt in its own Constitution individual

liberties more expansive than those conferred by the Federal Constitution.”

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, S. Ct. 2035, 2040 (1980).

Both the Court of Criminal Appeals and the Supreme Court of Texas have

observed that “[t]he federal constitution sets the floor for individual rights; state

constitutions establish the ceiling.” Heitman v. State, 815 S.W.2d 681, 690 (Tex.

Crim. App. 1991) (quoting LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)).

      Texas courts thus repeatedly have refused “to blindly follow the Supreme

Court’s decisions interpreting the Fourth Amendment” and instead have conducted

their own examination of the Texas Constitution and associated statutes. Id.; see

also Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim. App. 1998). Such

analyses do not fall afoul of the Supremacy Clause, as they do not lead to holdings

about an individual’s rights under federal law. Hulit, 982 S.W.2d at 437. Overall,

“[t]he Supremacy Clause means that, in practical terms, persons will always be




                                         11
able to avail themselves of the greater right.” Id. Here, the statutory rights provided

by Article 38.23 are greater than those provided by the federal exclusionary rule.

      In relevant part, Article 38.23 provides:

      (a) No 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, shall be
      admitted in evidence against the accused on the trial of any criminal
      case. . . .

      (b) It is an exception to the provisions of subsection (a) of this Article
      that the evidence was obtained by a law enforcement officer acting in
      objective good faith reliance upon a warrant issued by a neutral
      magistrate based on probable cause.

TEX. CODE CRIM. PROC. art. 38.23.

      Notably, the statute contains an explicit exception in subsection (b) for

evidence obtained in objective good-faith reliance on a warrant “based on probable

cause.” The Court of Criminal Appeals has refused to entertain exceptions to the

Texas exclusionary rule that are not consistent with Article 38.23’s text. Compare

Wehrenberg v. State, 416 S.W.3d 458, 468 (Tex. Crim. App. 2013) (recognizing

independent-source doctrine as an exception, consistent with the statute), with

State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (refusing to

recognize inevitable-discovery doctrine, because it is inconsistent with the statute).

This is in accordance with the general rule that “where an express exception exists

in a statute, the statute must apply in all cases not excepted.” Garcia v. State, 829

S.W.2d 796, 800 (Tex. Crim. App. 1992).


                                          12
       The Court of Criminal Appeals has held that Article 38.23(a)’s use of the

term “obtained” calls for the exclusion of evidence only when there is a “causal

connection” between the illegal conduct and the acquisition of the evidence.

Wehrenberg, 416 S.W.3d at 468. Consequently, doctrines that exempt evidence

from exclusion are consistent with the statute only when they do not involve such a

causal connection. See id. at 469–70; Johnson v. State, 871 S.W.2d 744, 750 (Tex.

Crim. App. 1994). When a causal connection between the illegal conduct and the

acquisition of evidence is present, the evidence has been “obtained” in violation of

the law, and the evidence must be excluded under Article 38.23 regardless of any

exception applied under federal law. See Daugherty, 931 S.W.2d at 271; accord

Howard v. State, 617 S.W.2d 191, 193 (Tex. Crim. App. 1979) (op. on reh’g)

(declining to adopt exception for good-faith reliance on a subsequently invalid

statute).

       The Davis exception assumes a causal connection and thus cannot be applied

under Article 38.23(a). The Davis doctrine involves illegal police conduct that

directly causes the acquisition of the evidence. See Davis, 131 S. Ct. at 2430–32

(clarifying that the Court’s retroactivity jurisprudence established that police in

that case acquired evidence through unlawful means). Good-faith reliance on

binding precedent is not a doctrine that eliminates the causal connection between

the illegal activity and the acquisition of the evidence. Rather, it treats that



                                        13
connection as a given. The exception is thus inconsistent with Article 38.23’s text.

See Daugherty, 931 S.W.2d at 270 (once “the illegality and its causal connection to

the evidence have been established, the evidence must be excluded” under Article

38.23).

      Rather than arguing that the Davis exception for good-faith reliance on

appellate precedent is consistent with the text of Article 38.23(a), the State argues

that the marijuana evidence seized from McClintock’s home should be exempted

from exclusion under Article 38.23(b). Subsection (b) provides an exception to

subsection (a) for evidence obtained by an officer “acting in objective good faith

reliance upon a warrant issued by a neutral magistrate based upon probable cause.”

TEX. CODE CRIM. PROC. art. 38.23(b). The State asserts that the Davis exception

applies in this case to save the dog-sniff evidence from being excluded from the

magistrate’s probable-cause determination.

      The State concedes that, according to binding precedent, a “search warrant

may not be procured lawfully by the use of illegally obtained information.” State v.

Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015) (quoting Brown v.

State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980), overruled on other grounds

by Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989)). Ordinarily, when a

search warrant is issued on the basis of an affidavit containing illegally obtained

information, as it was in this case, the evidence seized pursuant to the warrant is



                                         14
admissible only if the independently and lawfully acquired information in the

affidavit clearly established probable cause. McClintock, 444 S.W.3d at 19;

Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). The warrant in this case did not contain sufficient lawfully acquired

information to clearly establish probable cause without the dog-sniff evidence.

McClintock, 444 S.W.3d at 19–20.

      The State argues that because Officer Arthur acted in good-faith reliance on

pre-Jardines precedent when he conducted the dog-sniff search, the dog-sniff

evidence should be acceptable to support the magistrate’s probable-cause

determination. This would allow the warrant the officers relied on to seize the

marijuana evidence in this case to be a “warrant issued by a neutral magistrate

based on probable cause,” and therefore render the marijuana evidence admissible

under the statutory exception. TEX. CODE CRIM. PROC. art. 38.23(b). The State

contends that the bar against consideration of illegally obtained evidence in the

probable cause determination for a warrant is a “judicial construct,” not rooted in

Article 38.23’s text, which can be modified “as policy demands.”

      We are not persuaded by the State’s argument that policy considerations

justify disregarding Article 38.23(b) and applying the Davis exception to cure a

flawed probable-cause determination. The State ignores the fact that it seeks an

exception to a statutory remedy governed by Article 38.23. The Court of Criminal



                                        15
Appeals has expressly held that the decision to implement such an exception must

be rooted in an analysis of the text of Article 38.23. When considering whether the

“inevitable discovery” doctrine could exempt evidence from exclusion in Texas,

the Court explained:

      The whole issue here is whether for purposes of interpreting
      Article 38.23(a), we agree that “inevitable discovery” really does
      break the causal connection between the illegality and the evidence.
      That depends, of course, upon what Article 38.23(a) means when it
      says “evidence obtained in violation of” law. And this is purely a
      question of statutory construction. Not even the Supreme Court would
      presume to instruct us on how our own statutes should be construed.
      Were we implementing a court-made rule we would of course be free
      to follow the lead of the United States Supreme Court. However,
      because this is a statute enacted by the Texas Legislature, we are
      required to interpret the language of the statute in order to implement
      the legislative intent in enacting it.

Daugherty, 931 S.W.2d at 271. We, too, anchor our analysis to the text of

Article 38.23, not our own evaluation of the wisdom of its policy.

      Here, the State asks us to broaden the exception of Article 38.23(b) in a

manner not supported by its text. It is true, as the State argues, that the text of

Article 38.23(b) does not expressly forbid the consideration of illegally obtained

evidence when considering whether the magistrate’s warrant was based on

probable cause. But nothing in subsection (b) expressly supports the State’s

expansive reading either, and “[w]here a statute contains an express exception, its

terms must apply in all cases not excepted.” Daugherty, 931 S.W.2d at 270. Thus,




                                        16
subsection (a) must apply to suppress all evidence not expressly excepted by

subsection (b).

      The Court of Criminal Appeals has held that the phrase “based on probable

cause” in Article 38.23(b) requires an independent finding of probable cause; an

officer’s good-faith reliance on a warrant subsequently invalidated for lack of

probable cause does not fulfill the statutory exception. See Curry v. State, 808

S.W.2d 481, 482 (Tex. Crim. App. 1991). The exception in subsection (b) has only

been satisfied in cases involving technical defects in warrants, not warrants with

defects concerning probable cause. See, e.g., Dunn v. State, 951 S.W.2d 478, 479

(Tex. Crim. App. 1997) (concluding that exception applied in case where warrant

lacked magistrate’s signature); Brent v. State, 916 S.W.2d 34, 38 (Tex. App.—

Houston [1st Dist.] 1995, pet. ref’d) (holding that exception applied despite

warrant based on unsigned affidavit). Furthermore, as recognized above, illegally

obtained evidence cannot provide the probable cause necessary to support a

warrant. Le, 463 S.W.3d at 877.

      The State suggests that Davis provides a reason to deviate from these past

decisions. But the Court of Criminal Appeals already has recognized that its

interpretation of Article 38.23(b) stands in contrast to the federal good-faith

exception, established in United States v. Leon, for officers relying on a

subsequently invalidated warrant. See Curry, 808 S.W.2d at 482 (“[Article



                                       17
38.23(b)] requires a finding of probable cause, while the exception enunciated in

Leon appears more flexible in allowing a good faith exception if the officer’s belief

in probable cause is reasonable.”).

      The State’s proposed application of the Davis exception essentially mirrors

past attempts to use Leon, which the Court of Criminal Appeals already has held

does not satisfy the text of Article 38.23(b). Tellingly, the Supreme Court itself

recognized that its decision in Davis was merely an extension of the good-faith

exception established in Leon. See Davis, 131 S. Ct. at 2428–29 (“Under our

exclusionary rule precedents, [the] acknowledged absence of police culpability

dooms Davis’s claim. . . . Indeed, in 27 years under Leon’s good-faith exception,

we have ‘never applied’ the exclusionary rule to suppress evidence obtained as a

result of nonculpable, innocent police conduct.”). We do not perceive any

difference between the arguments previously rejected by the Court of Criminal

Appeals and the State’s proposed application of Davis.

      We reject the State’s proposed application of the Davis exception to allow

consideration of illegally obtained evidence in the magistrate’s probable cause

analysis for a warrant. As the Court of Criminal Appeals affirmed, the dog-sniff

search was unlawful. Binding precedent holds that illegally obtained evidence

cannot provide probable cause to support a warrant. Based on past interpretation of

Article 38.23, we conclude that the good-faith exception established in Davis does



                                         18
not apply to allow the State to use the illegal dog-sniff evidence to support the

warrant. As a result, the warrant used to seize the marijuana evidence from

McClintock’s residence was “not based on probable cause,” and the marijuana

evidence does not satisfy Article 38.23(b). Accordingly, the Texas exclusionary

statute applies and the marijuana evidence must be suppressed. See TEX. CODE

CRIM. PROC. art. 38.23(a).

                                    Conclusion

      We overrule the State’s sole issue. We remand the case to the trial court for

a new trial without the evidence that should have been suppressed.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown

Justice Keyes, dissenting.

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




                                        19
