                       PD-1641-15                                              PD-1641-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                       No. ________                         Transmitted 12/18/2015 9:24:13 AM
                                                              Accepted 12/19/2015 9:48:52 AM
                                                                               ABEL ACOSTA
                               In the                                                  CLERK

      Texas Court of Criminal Appeals
                              at Austin

                       ♦

                        No. 01-11-00572-CR
                   In the Court of Appeals for the
                        First District of Texas
                              at Houston
                       ♦

           BRADLEY RAY MCCLINTOCK
                              Appellant
                                V.

                 THE STATE OF TEXAS
                               Appellee

                       ♦

STATE’S PETITION FOR DISCRETIONARY REVIEW
                       ♦

                                     DEVON ANDERSON
                                     District Attorney
                                     Harris County, Texas
                                     BRIDGET HOLLOWAY
                                     Assistant District Attorney
                                     Harris County, Texas
                                     Texas Bar No. 24025227
                                     holloway_bridget@dao.hctx.net
   December 18, 2015                 AARON BURDETTE
                                     MICHELE ONCKEN
                                     Assistant District Attorneys
                                     Harris County, Texas
                                     Harris County Criminal Justice Center
                                     1201 Franklin, Suite 600
                                     Houston, Texas 77002
                                     Tel.: 713.274.5826
                STATEMENT REGARDING ORAL ARGUMENT

      In light of the law in Texas prior to the recent Supreme Court’s opinion

Florida v. Jardines, this case presents the issue of whether the First Court of Appeals

erroneously failed to apply Davis v. United States, dictating there can be no exclusion

of innocent police conduct “when binding appellate precedent specifically

authorizes a particular police practice” that might later be found unconstitutional.

The undersigned attorney would be delighted to present oral argument if this

Court would find it helpful.




                                           i
                         IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below:

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Bridget Holloway  Assistant District Attorney on appeal

             Aaron Burdette  Assistant District Attorney at hearing

             Michele Oncken  Assistant District Attorney at hearing

      Appellant or criminal defendant:

             Bradley Ray McClintock

      Counsel for Appellant:

             Norman Silverman  Counsel on appeal and at hearing

      Trial Judge:

             Honorable Jeannine Barr  Presiding Judge




                                         ii
                                               TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ............................................................................. ii

TABLE OF CONTENTS ................................................................................................... iii

INDEX OF AUTHORITIES .............................................................................................. iv

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF THE PROCEDURAL HISTORY ........................................................ 1

STATEMENT OF FACTS .................................................................................................. 4

STATE’S TWO GROUNDS FOR REVIEW ..................................................................... 6

REASONS FOR GRANTING REVIEW ............................................................................ 7

FIRST GROUND FOR REVIEW ....................................................................................... 8

          Does the United State Supreme Court’s exception to the exclusionary
          rule, held under Davis v. United States, 131 S.Ct. 2419 (2001), apply to
          Texas’ exclusionary rule?

   ARGUMENT................................................................................................................... 8

SECOND GROUND FOR REVIEW ................................................................................ 13

          If the United States Supreme Court’s Davis exception to the
          exclusionary rule, or at least the purpose behind it, applies to Texas’
          exclusionary rule, the First Court of Appeals erred in excluding
          evidence obtained legally under binding authority at the time the
          search warrant was issued.

   ARGUMENT................................................................................................................. 13

PRAYER ........................................................................................................................... 17

CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE............................ 18


                                                                iii
                                             INDEX OF AUTHORITIES


CASES

Curry v. State,
  808 S.W.2d 481 (Tex. Crim. App. 1991) .................................................................... 11, 12

Davis v. United States,
  131 S.Ct. 2419 (2011) .................................................................................................... 7, 8, 10

Florida v. Jardines,
   133 S.Ct. 1409 (2013) ........................................................................................... 1, 13, 14, 15

Illinois Caballes,
    543 U.S. 405 (2005) .............................................................................................................13

Jardines v. State,
   73 So.3d 34 (Fla. 2011) ......................................................................................................... 14

Kyllo v. United States,
  533 U.S. 27 (2001) .................................................................................................................13

McClintock v. State,
 __ S.W.3d __, No. 01-11-00572-CR, 2015 WL 6851826
 (Tex. App. —Houston [14th Dist.] Nov. 5, 2015) (brief on remand) ............ passim

McClintock v. State,
 405 S.W.3d 277 (Tex. App. —Houston [1st Dist.] 2013),
 rev’d __S.W.3d__, 2014 WL 4843959 (Tex. Crim. App. Oct. 1, 2014) ......................... 1

McClintock v. State,
 444 S.W.3d 15 (Tex. Crim. App. 2014) ............................................................................ 2

Miles v. State,
  241 S.W.3d 28 (Tex. Crim. App. 2007) ............................................................................ 9

Porter v. State,
  93 S.W.3d 342
  (Tex. App. —Houston [14th Dist.] 2002 pet. ref’d) ....................................................13



                                                                  iv
Rodriguez v. State,
  106 S.W.3d 224
  (Tex. App. —Houston [1st Dist.] 2003 pet. ref’d) ........................................................13

Romo v. State,
  106 S.W.3d 224
  (Tex. App. —Houston [1st Dist.} 2003, pe. ref’d)........................................................ 14

State v. Daugherty,
  931 S.W.3d 268 (Tex. Crim. App. 1996) .......................................................................... 11

State v. Jackson,
  435 S.W.3d 819
  (Tex. App. —Eastland 2014, pet. granted Oct. 8, 2014) ............................................ 16

State v. Rabb,
  920 So.3d 1175 (Fla. 4th DCA 2006) ............................................................................... 14

Taylor v. State,
  419 S.W.3d 520
  (Tex. App. —Amarillo 2013, no pet.).............................................................................. 16

United States v. Jones,
 132 S.Ct. 945 (2012)..............................................................................................................13

Wehrenberg v. State,
 416 S.W.3d 458 (Tex. Crim. App. 2013)......................................................................... 10




                                                                 v
STATUTES

TEX. CODE CRIM. PROC. ANN.
  art. 38.23(a) (West 2012)................................................................................................... 14
TEX. CODE CRIM. PROC. ANN.
  art. 38.23(b) (West 2012) ...................................................................................... 10, 12, 14


RULES

TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................... ii
TEX. R. APP. P. 66.3(c)................................................................................................................ 7
TEX. R. APP. P. 66.3(e) ............................................................................................................... 7
TEX. R. APP. P. 66.3(f) ................................................................................................................ 7
TEX. R. APP. P. 68.2(a) ............................................................................................................... 3




                                                                   vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS:


                            STATEMENT OF THE CASE

      Appellant, Bradley Ray McClintock, was charged by indictment with the

felony of possession of marijuana after marijuana was obtained pursuant to a

search warrant with evidence of a canine sniff. (CR at 7). The trial court denied

appellant’s motion to suppress, and appellant, thereafter, entered a plea of guilty

to the lesser state jail felony offense of possession of marijuana. (CR at 25-26).

Appellant was sentenced to three years deferred adjudication and assessed a $500

fine. (CR at 31). Appellant appealed the trial court’s denial of his motion to

suppress.

                        ♦


                 STATEMENT OF THE PROCEDURAL HISTORY

      While this case was pending on appeal, the United States Supreme Court

issued Florida v. Jardines, 133 S.Ct. 1409 (2013). The First Court of Appeals issued its

opinion in this case three months later. Relying on Jardines, the Court concluded

the search warrant was not based upon probable cause because the dog-sniff at

appellant’s door was unconstitutional and the rest of the warrant was insufficient

to establish probable cause. See McClintock v. State, 405 S.W.3d 277 (Tex. App. —

Houston [1st Dist.] 2013), rev’d 444 S.W.3d 15 (Tex. Crim. App. 2014).
      This Court granted the State’s following two issues on petition for

discretionary review on November 20, 2013:

            First:       Under Davis v. United States, the First Court of
                         Appeals erred in concluding that the probable
                         cause supporting a search warrant issued prior to
                         United States v. Jones and Florida v. Jardines needed to
                         be reviewed on appeal without the canine sniff
                         when the officers and the magistrate relied in good
                         faith on existing good law at the time the warrant
                         was issued.


            Second:      The First Court of Appeals erred in finding the
                         affidavit supporting the search warrant lacked
                         probable cause upon excluding the canine sniff.


On October 1, 2014, this Court issued a published opinion rejecting the State’s

second ground for review, “albeit for reasons somewhat different than those of the

court of appeals,” and remanded this case back to the appellate court to consider

the first ground for review. See McClintock v. State, 444 S.W.3d 15, 18, 20-21 (Tex.

Crim. App. 2014).

      After both parties filed briefs addressing the first ground, the First Court of

Appeals held, in a published opinion, “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” and reversed and remanded

the case for a new trial without the evidence “that should have been suppressed.”

See McClintock v. State, __ S.W.3d __, No. 01-11-00572-CR, 2015 WL 6851826 (Tex.

                                         2
App. —Houston [14th Dist.] Nov. 5, 2015) (brief on remand) (Appendix A). Judge

E. Keyes disagreed with a published dissent, noting she “would hold, in

accordance with Davis, that the good-faith exception to the exclusionary rule

applies in this case” because “the evidence obtained by police pursuant to the

search warrant issued on the basis of probable cause supplied in part by the dog-

sniff search then deemed legal under binding authority.” See id., slip op. at 3 (Keyes,

J. dissenting) (Appendix B).        The State now timely files its petition for

discretionary review in accordance with TEX. R. APP. P. 68.2(a).

                        ♦




                                          3
                             STATEMENT OF FACTS

      The Texas Department of Public Safety received information that marijuana

was being grown on the second floor of a duplex at 412 W. Clay Street in Houston

and began conducting surveillance. Appellant was observed going to the back of

the duplex. Appellant did not, however, use either of the front two doors that led

into a business on the first floor. Inside the business, accessible by only one of the

two first floor front doors, there did not appear to be any stairs that led to the

second floor. The windows of the second floor were blacked out with material

that resembled aluminum foil and there were multiple window air conditioning

units running. For several days, appellant was seen arriving early in the morning,

parking in the rear of the building, before leaving a few hours later. After multiple

days of surveillance, no one was ever seen using the other first floor front door.

Multiple vehicles were observed parked for extended periods of time in the

parking lot on occasion.

      Two driveways lead to the back of the duplex to a rear parking lot with a

concrete slab surface. No gates, fences, or any type of obstruction block either

driveway or prevent access to the parking area behind the duplex. There was a

staircase on the back of the building that led to a door on the second floor. Agent

R. Arthur, the affiant, detected what he knew from his training and experience to

be the odor of marijuana while on the sidewalk. The smell continued up the


                                          4
driveway to the parking area in the back of the building. At this point, he

requested the assistance of a narcotics canine. The canine officer and partner

“Sita” walked up the stairs to the second floor back door and Sita gave a positive

alert to the presence of a controlled substance. The canine officer observed a towel

and plastic sealing the bottom of the back door and around the seam near the door

handle. This is known to be used to “seal odors.” (CR at 12-16).

      A warrant, supported by an affidavit from Agent Arthur, was obtained a day

later. (CR at 26). The affidavit included the following facts:

         • Surveillance was set up at 412 W. Clay after receiving a tip that
           “marijuana was being grown inside the 2nd floor residence;”

         • A business operated on the bottom floor;

         • “[A]n open to the public stairway” led to upstairs on the back
           of the building;

         • The stairs are located off a public parking area for the business;

         • There are no gates, fences, or a door that blocks the stairway
           from the parking lot;

         • A male was observed coming and going from the back of the
           building at hours consistent with possible narcotics activity;

         • Agent Arthur smelled the odor of marijuana outside this
           location; and

         • “Sita,” who is a canine certified with the National Narcotics
           Detector Dog Association, gave a positive alert to the presence
           of marijuana, cocaine, and/or methamphetamine by the second
           floor doorway.


                                         5
         Appellant filed a motion to suppress the marijuana seized pursuant to the

warrant. (CR at 16). He claimed the warrant lacked probable cause because the

affidavit misrepresented the stairway as “open to the public.” (CR at 17). The trial

court denied appellant’s motion to suppress, finding the stairs were not part of the

curtilage. (RR at 17).

                         ♦


                     STATE’S TWO GROUNDS FOR REVIEW

First:       Does the United State Supreme Court’s exception to the exclusionary
             rule, held under Davis v. United States, 131 S.Ct. 2419 (2001), apply to
             Texas’ exclusionary rule?

Second:      If the United States Supreme Court’s Davis exception to the
             exclusionary rule, or at least the purpose behind it, applies to Texas’
             exclusionary rule, the First Court of Appeals erred in excluding
             evidence obtained legally under binding authority at the time the
             search warrant was issued.


                         ♦




                                          6
                          REASONS FOR GRANTING REVIEW

       This petition for discretionary review should be granted pursuant to TEX. R.

APP. P. 66.3(c) because the First Court of Appeals’ published opinion in this case

conflicts with the United States Supreme Court’s opinion in Davis v. United States,

131 S.Ct. 2419, 2426–27 (2011) that dictates there can be no exclusion of police

conduct “when binding appellate precedent specifically authorizes a particular

police practice” that might later be found unconstitutional. This petition for

discretionary review should be granted pursuant to TEX. R. APP. P. 66.3(e) because

the justices of the First Court of Appeals have disagreed on a material question of

law necessary to the court’s decision as evidenced by the dissent in this case.

Furthermore, this petition for discretionary review should be granted pursuant to

TEX. R. APP. P. 66.3(f) because the First Court of Appeals’ published decision

greatly departs from the jurisprudence of this State regarding the application of

Davis v. United States.

                            ♦




                                         7
                          FIRST GROUND FOR REVIEW

      Does the United State Supreme Court’s exception to the
      exclusionary rule, held under Davis v. United States, 131 S.Ct. 2419
      (2001), apply to Texas’ exclusionary rule?

                                    ARGUMENT

      The Supreme Court held in Davis v. United States, 131 S.Ct. 2419 (2011) that

“Evidence obtained during a search conducted in reasonable reliance on binding

precedent is not subject to the exclusionary rule.” See id. at 2429. The First Court

of Appeals concluded that Davis, however, did not apply in Texas because its

exclusionary rule and good-faith exception are statutory and not judicially created

like the federal rule in Davis. See McClintock, slip op. at 17-18. Justice Keyes

disagreed, finding “the majority’s holding is based on a misinterpretation of both

the Texas exclusionary rule and its good-faith exception and the federal

exclusionary rule and good-faith exception, as well as the relationship between

them.” See McClintock, slip op. at 4 (Keyes, J. dissenting).

      Justice Keyes points out two errors of law in the majority’s opinion. First,

Article 38.23 was not created to override the federal exclusionary rule and good-

faith exception devised by the United States Supreme Court for use in Fourth

Amendment rulings. Texas courts have consistently followed both federal and

state precedent in construing Article 38.23 (except for a conflict in the language


                                           8
that is not at issue in this case). The majority erroneously relies on this Court’s

opinion in Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) to conclude that

Texas Courts may disregard the United State Supreme Court’s construction of the

federal exclusionary rule. See McClintock, slip op. at 10; slip op. at 12 (Keyes, J.

dissenting). Contrary to the majority’s view, however, Miles states that Article

38.23 “sanctioned the construction by the Federal courts of the search-and-seizure

clause of the [federal] Constitution.” See McClintock, slip op. at 13 (Keyes, J.

dissenting) (quoting Miles, 241 S.W.3d at 34). The only difference is that the Texas

Legislature applied the exclusionary rule to evidence illegally seized by private

individuals, which is not at issue here. See id. Here, the exclusion of evidence

under Article 38.23(a) is based upon a claim of a Fourth Amendment violation.

Where the Fourth Amendment of the United States is invoked as the basis of

exclusion, the principles underlying the federal exception to the exclusionary rule

should be recognized and applied. “Evidence seized in violation of the Fourth

Amendment through police misconduct must be excluded, but [ ] evidence seized

by the police in good faith need not be.” McClintock, slip op. at 19 (Keyes, J.

dissenting).

      Second, the majority also erroneously concluded that Davis is in direct

conflict with Texas law and that Texas law does not recognize federal cases

construing the federal good-faith exception to the exclusionary rule. Article


                                         9
38.23(b) provides an exception to the Texas exclusionary rule to permit evidence

obtained by a law enforcement officer acting in objective good faith reliance upon

a warrant issued by a neutral magistrate based on probable cause. See TEX. CODE

CRIM. PROC. art. 38.23(b) (West 2012). As noted by Justice Keyes, Davis does not

conflict with that language. See McClintock, slip op. at 16 (Keyes, J. dissenting). The

majority concluded it does by incorrectly “assum[ing]” the warrant at issue here was

illegal when it was issued based solely on an act within it being illegal now. See id.,

slip op. at 11 (Keyes, J. dissenting). That conclusion is directly contrary to the

intent and purpose behind Davis. Davis held that a subsequent ruling by the Court

that a warrantless search is constitutionally invalid does not apply retroactively to

render evidence obtained in good-faith reliance on binding precedent inadmissible.

See Davis, 131 S.Ct. at 2429. The majority, however, applied the subsequent ruling

retroactively by concluding the search warrant at issue was not based upon

probable cause because of the subsequent ruling. See McClintock, slip op. at 18; slip

op. at 17-18 (Keyes, J. dissenting). Not only does the majority completely ignore

Davis, but “this argument…is circular.” See McClintock, slip op. at 18 (Keyes, J.

dissenting).

      As noted by the dissent, the majority erroneously relied on Wehrenberg v. State,

416 S.W.3d 458 (Tex. Crim. App. 2013) and State v. Daugherty, 931 S.W.3d 268 (Tex.



                                          10
Crim. App. 1996) in supporting its position. Daugherty is inapplicable because the

“inevitable discovery” of unlawfully obtained evidence goes against the plain

language of Article 38.23(b), providing a good-faith exception to “lawfully”

obtained evidence only. See McClintock, slip op. at 20 (Keyes, J. dissenting). And, in

Wahrenberg, this Court upheld the admissibility of evidence lawfully obtained

pursuant to the federal “independent source” doctrine because the evidence was

lawfully obtained, as required by Article 38.23. See id., slip op. at 21-22 (Keyes, J.

dissenting).

      Under Davis and Wehrenberg, the evidence in this case was obtained lawfully

at the time of seizure. The majority erred in retroactively applying Jardines and in

ignoring Davis.     The majority’s opinion “vitiates the purpose of both the

exclusionary rule and the good faith exception” —to deter police misconduct. See

McClintock, slip op. at 24 (Keyes, J. dissenting).

      Furthermore, the majority cites to this Court’s opinion in Curry v. State, 808

S.W.2d 481 (Tex. Crim. App. 1991) for the proposition that this Court has held

that “based on probable cause” does not include “an officer’s good-faith reliance on

a warrant subsequently invalidated for lack of probable cause.” See McClintock, slip.

op. at 17.     In Curry, however, the warrant was subsequently invalidated for

probable cause because it never contained probable cause. In fact, this Court



                                           11
explicitly qualified its holding in Curry as requiring an “initial determination of

probable cause,” see Curry, 808 S.W.2d at 482 (emphasis added), which is

supported by the plain wording of Article 38.23(b), that in order to apply the

good-faith exception, officers must have acted in reliance upon “a warrant issued by

a neutral magistrate based upon probable cause.” See TEX. CODE CRIM. PROC. ANN.

art. 38.23(b). The majority’s reliance on Curry, therefore, is misplaced, and its

interpretation of Article 38.23(b) deprives it of its intended purpose.

      The United States Supreme Court’s Davis exception to the exclusionary rule,

and the purpose behind it, should apply to the Texas’ exclusionary rule. Here, a

facially valid warrant was issued based upon an initial determination of probable

cause. The State’s first ground for review should be granted.

                         ♦




                                         12
                        SECOND GROUND FOR REVIEW

      If the United States Supreme Court’s Davis exception to the
      exclusionary rule, or at least the purpose behind it, applies to
      Texas’ exclusionary rule, the First Court of Appeals erred in
      excluding evidence obtained legally under binding authority at
      the time the search warrant was issued.

                                    ARGUMENT

      The First Court of Appeals erred in finding the trial court abused its

discretion in denying appellant’s motion to suppress when both the officers and

the magistrate were following the state of the law in Texas at the time the warrant

was issued. The search warrant for the second floor of 412 West Clay was issued

in September 2010. (Supp. CR at 20). United States v. Jones, 132 S.Ct. 945 (2012) was

issued over a year after the search warrant was issued, and during the pendency of

appellant’s appeal, the United States Supreme Court issued Jardines. It is beyond

dispute that as of September 2010, when Agent Arthur acted, precedent

specifically authorized law enforcement to use a drug-detection dog to seek out

illegal narcotics in an area open to the public. See Illinois Caballes543 U.S. 405, 409

(2005); Porter v. State, 93 S.W.3d 342, 346, n. 6 (Tex. App. —Houston [14th Dist.]

2002 pet. ref’d) (interpreting Kyllo v. United States, 533 U.S. 27, 31–34 (2001));

Rodriguez v. State, 106 S.W.3d 224, 229 (Tex. App. —Houston [1st Dist.] 2003 pet.

ref’d); Romo v. State, 106 S.W.3d 224 (Tex. App. —Houston [1st Dist.} 2003, pe.


                                          13
ref’d). 1 Thus, prior to the decision in Jardines, the use of a narcotics detection dog

was not considered a “search” under precedent in Texas.

       Article 38.23(a) of the Code of Criminal Procedure excludes, “evidence

obtained by an officer or other person in violation of any provision of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the

United States of America.” See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West

2012). Article 38.23(b), however, provides a good-faith exception that allows

evidence obtained in good-faith reliance on a warrant issued by a neutral

magistrate based upon probable cause to be admissible. TEX. CODE CRIM. PROC.

ANN. art. 38.23(b) (West 2012).

       Here, the officers did all they could do in seeking to comply with the law. In

addition to conducting surveillance, they conducted what was, at the time, a

lawful dog-sniff at the door on the second floor of the suspected house. They then

sought a search warrant to search the second floor of the house. Because the

police in this case acted in objectively reasonable reliance on binding appellate

precedent, the Davis good-faith exception should have applied. At every step of


1
  Moreover, unlike here, Davis did not apply to Florida v. Jardines because binding appellate
precedent in Florida, and as ultimately decided by the Supreme Court of Florida in
Jardines v. State, was to suppress the dog-sniff. See Jardines v. State, 73 So.3d 34, 38 (Fla.
2011); see also State v. Rabb, 920 So.3d 1175 (Fla. 4th DCA 2006) (canine sniff from outside a
home to detect narcotics inside the home uses extra-sensory procedure that violates the
firm line at the door of the home protected from intrusion by the Fourth Amendment).


                                             14
the way, the police followed the law as they understood it at the time.

Suppressing the evidence here would have no effect in discouraging police

misconduct; if the appellate courts of this State failed to foresee the holding in

Jardines, the police cannot be faulted for following the law as it was given to them.

The dissent of four justices in Jardines indicates the police could not have known

that the search would be deemed illegal. Therefore, the good-faith exception to

the exclusionary rule protects the search from retroactive invalidation under

Jardines. To find otherwise, would mean that the operation of the good-faith

exclusionary rule would not serve its remedial purpose.

      Furthermore, Article 38.23(a) bars the admission of illegally-obtained

evidence. The State, however, was not seeking to introduce the results of the

warrantless dog-sniff, it was seeking to introduce the items discovered inside the

house pursuant to a legally issued warrant. Though it is generally the case that

illegally-obtained evidence cannot provide the probable cause for a warrant, the

State believes that the convergence of the state and federal good-faith exceptions

allows it in this case. The Texas good-faith exception, by its terms, does not bar

the consideration of illegally obtained evidence in the probable cause analysis; that




                                         15
is a judicial construct, and like all judicial constructs it can be modified as policy

demands. 2

       The First Court of Appeals erred in excluding the dog-sniff because it was

conducted pursuant to established precedent at the time the warrant was issued.

The State’s second ground for review should be granted.

                           ♦




2
  See e.g., Taylor v. State, 419 S.W.3d 520 (Tex. App. —Amarillo 2013, no pet.) (at the time a
GPS unit was placed on car, it was not considered a search that required probable cause;
thus, the evidence seized pursuant to use of the GPS unit would not be subject to the
exclusionary rule because “the officers acted in reasonable reliance on federal precedent
in the majority of the federal circuit courts of appeal, including the Fifth Circuit”), but see
State v. Jackson, 435 S.W.3d 819 (Tex. App. —Eastland 2014), rev’d on other ground, 464
S.W.3d 724 (Tex. Crim. App. 2015) (also argued that the placement of a GPS unit on his
car prior to Jones was now an illegal search and tainted the evidence obtained as the
result of its use; the court of appeals held that “an officer’s good faith reliance on the law
or existing precedent is not recognized as an exception to the Texas exclusionary rule;”
finding Article 38.23(b) does not state the exclusionary rule applies to “an officer’s good
faith reliance on the law or existing precedent.”).


                                              16
                                    PRAYER

      The State respectfully requests this Court grant the State’s petition for

discretionary review and reverse the appellate court’s suppression of the evidence

obtained via a valid search warrant supported by evidence admissible under

binding appellate authority when it was issued.




                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas


                                                  /s/ Bridget Holloway

                                                  BRIDGET HOLLOWAY
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  Texas Bar No. 24025227
                                                  holloway_bridget@dao.hctx.net




                                       17
       CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 3985 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorney, and the State Prosecuting Attorney, via TexFile at the

following emails on December 18, 2015:



      Norman J. Silverman
      Attorney for Appellant
      Email: lawyernorm@msn.com


      Lisa C. McMinn
      State Prosecuting Attorney
      Email: Lisa.McMinn@SPA.texas.gov




                                                /s/ Bridget Holloway

                                                BRIDGET HOLLOWAY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                Texas Bar No. 24025227
                                                holloway_bridget@dao.hctx.net




                                         18
APPENDIX A
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
APPENDIX B
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


                            DISSENTING OPINION

      I respectfully dissent. In this case, the police obtained a warrant to search

appellant’s upstairs residence for marijuana based on Houston Police Department

Officer R. Arthur’s affidavit that he smelled marijuana at that “location” and that
the trained narcotics-sniffing dog Sita likewise detected the odor of marijuana from

the top of a public stairway outside the door of appellant’s second-floor residence.

      The Court of Criminal Appeals held that the warrantless dog sniff search on

the curtilage of appellant’s residence was illegal under Florida v. Jardines, decided

while appellant’s case was on appeal. McClintock v. State, 444 S.W.3d 15, 19

(Tex. Crim. App. 2014). The court then found that the affidavit on which the

search warrant was obtained, based in part on the warrantless dog-sniff search, was

“sufficiently ambiguous” that it could not be said that, without the narcotics dog’s

alert, the evidence the magistrate had before him to rely on in issuing the warrant,

“even taken together with the other independently acquired information stated in

the warrant affidavit , . . . clearly established probable cause.” Id. at 19–20.

      However, on petition for discretionary review, the State brought the court’s

attention to Davis v. United States, 131 S. Ct. 2419 (2011). The Supreme Court

held in Davis that a new Supreme Court ruling that a search is illegal under the

Fourth Amendment does not apply retroactively to render inadmissible evidence

obtained from a search that occurred prior to the ruling that was conducted by the

police in good faith in accordance with binding precedent at the time of the search.

See 131 S. Ct. at 2425–26, 2429, 2434 (holding that exclusionary rule did not bar

admission of weapon discovered during search of passenger compartment of

vehicle incident to arrest of passengers, even though Supreme Court determined in



                                           2
intervening case that such searches violate Fourth Amendment, because officer

reasonably relied on binding precedent at time of search that permitted officer to

search passenger compartment). The Court of Criminal Appeals remanded to this

Court the question of whether, in light of Davis, evidence seized pursuant to a

search warrant that was obtained, in part, as a result of a search subsequently

declared to be in violation of the Fourth Amendment is admissible in Texas state

courts under the good-faith exception to the exclusionary rule.

      The majority’s answer to this question—that the evidence is inadmissible—

is, in my view, incorrect on the law. I would hold, in accordance with Davis, that

the good-faith exception to the exclusionary rule applies in this case. Thus, the

evidence obtained by police pursuant to the search warrant issued on the basis of

probable cause supplied in part by the dog-sniff search then deemed legal under

binding authority was not subject to exclusion.      I would therefore affirm the

judgment of the trial court.

               A. The Exclusionary Rule and the Good-Faith Exception

      The majority concludes that Texas’s exclusionary rule and its good-faith

exception are statutory, not judicially created like the federal rule, and that the

Texas exclusionary rule is broader than the federal rule. It holds that, therefore,

Davis, a federal Supreme Court case, does not apply in Texas state court, and that

it need not consider Davis in determining whether the evidence seized in this case



                                         3
was admissible.    I disagree.   I believe the majority’s holding is based on a

misinterpretation of both the Texas exclusionary rule and its good-faith exception

and the federal exclusionary rule and good-faith exception, as well as the

relationship between them.

      The federal exclusionary rule, parsed by the United States Supreme Court in

Davis, is a “prudential doctrine” created by the Supreme Court “to compel respect

for the constitutional guaranty” against “unreasonable searches and seizures” under

the Fourth Amendment by requiring the courts to exclude illegally obtained

evidence. Davis, 131 S. Ct. at 2426 (quoting Elkins v. United States, 364 U.S. 206,

217, 80 S. Ct. 1437, 1444 (1960)); see also id. at 2427 (stating that exclusionary

rule is “a ‘judicially created remedy’ of this Court’s own making”) (quoting United

States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974)). It is neither a

“personal constitutional right” nor a redress for injury occasioned by an

unconstitutional search. Id. at 2426. Rather, the rule’s “sole purpose” is “to deter

future Fourth Amendment violations” by rendering evidence seized in violation of

the Fourth Amendment inadmissible. Id.

      Having promulgated the exclusionary rule, however, the Supreme Court

recognized that its application “exacts a heavy toll” on the judicial system and the

public by requiring the courts “to ignore reliable, trustworthy evidence bearing on

guilt or innocence” and by causing the truth to be suppressed and criminals to be



                                         4
set loose without punishment. Id. at 2427. Therefore, the Court further held that

“[w]here suppression fails to yield ‘appreciable deterrence,’ exclusion is

‘clearly . . . unwarranted.’” Id. at 2426–27 (quoting United States v. Janis, 428

U.S. 433, 454, 96 S. Ct. 3021, 3032 (1976)).

      The Supreme Court thus requires a balancing test to determine whether

evidence should be excluded under the rule. See id. at 2427–28. Under this test,

exclusion    is   appropriate     only    when     “the    deterrence    benefits    of

suppression . . . outweigh its heavy costs.” Id. at 2427. “When the police exhibit

‘deliberate,’ ‘reckless’ or ‘grossly negligent’ disregard for Fourth Amendment

rights, the deterrent value of exclusion is strong and tends to outweigh the resulting

costs. But when the police act with an objectively ‘reasonable good-faith belief’

that their conduct is lawful, . . . the ‘deterrence rationale loses much of its force.’”

Id. at 2427–28 (citations omitted).

      On the basis of this rationale, the Supreme Court has long “extended the

good-faith exception to searches conducted in reasonable reliance on subsequently

invalidated statutes”; and it has “‘never applied’ the exclusionary rule to suppress

evidence obtained as a result of nonculpable, innocent police conduct”; thus, it has

held that the exclusionary rule does not apply when police conduct a search in

“objectively reasonable reliance” on a warrant later held to be invalid. Id. at 2428–

29 (citing Illinois v. Krull, 480 U.S. 340, 349–50, 107 S. Ct. 1160, 1167 (1987),



                                           5
and quoting Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702

(2009), and United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420

(1984)).

         Relying on the foregoing reasoning and precedents, the Supreme Court held

in Davis that “[e]vidence obtained during a search conducted in reasonable reliance

on binding precedent is not subject to the exclusionary rule.” Id. at 2429. In

Davis, the Supreme Court expressly distinguished the exclusionary rule from the

retroactivity rule for newly created Fourth Amendment precedent first announced

in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987). See id. at 2429–30.

The retroactive application of a new substantive Fourth Amendment rule, it stated,

“raises the question whether a suppression remedy applies; it does not answer that

question.” Id. at 2431. The Court explained, “[E]xclusion of evidence does not

automatically follow from the fact that a Fourth Amendment violation occurred.

The remedy is subject to exceptions and applies only where its ‘purpose is

effectively advanced.’” Id. Thus, because “the sole purpose of the exclusionary

rule is to deter misconduct by law enforcement,” where the police have not been

guilty     of   any   culpable   conduct       and   have   “reasonably   relied   on

binding . . . precedent” in executing a search, “[t]hat sort of blameless police

conduct . . . comes within the good-faith exception and is not properly subject to

the exclusionary rule.” Id. at 2432, 2434; see also Leon, 468 U.S. at 918, 104 S.



                                           6
Ct. at 3418 (“[S]uppression of evidence obtained pursuant to a warrant should be

ordered only on a case-by-case basis and only in those unusual cases in which

exclusion will further the purposes of the exclusionary rule.”).

      Assuming the applicability in Texas state courts of Supreme Court precedent

construing the Fourth Amendment, the exclusionary rule, and the good-faith

exception to that rule, this case falls squarely within the scope of the good-faith

exception to the federal exclusionary rule established by the Supreme Court in

Davis and its predecessors. Here, there is no evidence whatsoever that the police

exhibited “‘deliberate,’ ‘reckless’ or ‘grossly negligent’ disregard for Fourth

Amendment rights” when they relied, in part, on a warrantless dog-sniff search to

obtain a warrant to search appellant’s residence. See Davis, 131 S. Ct. at 2427.

Rather, they relied upon long-established and binding precedent in both the federal

courts and the Texas courts stating that a dog sniff was not a search within the

meaning of the Fourth Amendment and that the alert of a trained dog as to the

presence of contraband could be relied upon to establish probable cause to obtain a

legal warrant to search the premises where the alert occurred. See, e.g., Illinois v.

Caballes, 543 U.S. 405, 409, 410, 125 S. Ct. 834, 838 (2005) (use of “well-trained

narcotics-detection dog” on motor vehicle during traffic stop “does not rise to the

level of a constitutionally cognizable infringement” and “does not violate the

Fourth Amendment”); United States v. Tarazon-Silva, 166 F.3d 341, 341 (5th Cir.



                                          7
1998) (per curiam) (dog sniff of outer edge of garage and dryer vent on exterior

wall of house was not search pursuant to Fourth Amendment); United States v.

Williams, 69 F.3d 27, 28 (5th Cir. 1995) (per curiam) (positive dog alert creates

probable cause to search vehicle); United States v. Seals, 987 F.2d 1102, 1106 (5th

Cir. 1993) (“A dog ‘sniff’ is not a search.”); Romo v. State, 315 S.W.3d 565, 573

(Tex. App.—Fort Worth 2010, pet. ref’d) (dog sniff of garage door and backyard

fence of defendant’s home not search for Fourth Amendment purposes); Rodriguez

v. State, 106 S.W.3d 224, 228–29 (Tex. App.—Houston [1st Dist.] 2003, pet ref’d)

(dog sniff conducted at front door of defendant’s home not search); Porter v. State,

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

that investigative methods that can only detect existence of illegal items in home

and do not reveal legal information about interior are not searches for Fourth

Amendment purposes and holding that dog sniff outside front door did not

constitute search under Fourth Amendment).

      As these federal and state precedents show, the case law relating to dog

sniffs occurring outside a public entrance to a defendant’s home was deemed valid

law at the time the search warrant issued in this case. It was only subsequently

abrogated by Jardines. At that time, this case was already on appeal.

      Here, the affidavit executed by Officer Arthur detailing both his own and the

dog Sita’s detection of the odor of marijuana from outside appellant’s residence



                                         8
was made in good faith, in reliance on binding precedent, and without culpability

of any kind on the part of the police. See 131 S. Ct. at 2426–29. “In the absence

of an allegation that the magistrate abandoned his detached and neutral role,

suppression is appropriate only if the officers were dishonest or reckless in

preparing their affidavit or could not have harbored an objectively reasonable

belief in the existence of probable cause.” Leon, 468 U.S. at 926, 104 S. Ct. at

3422. None of the conditions that would limit the applicability of the good-faith

exception apply here.     Therefore, relying on federal and state precedent, and

applying the rule in Davis to the facts of this case, I would hold that, at the time it

was made, Officer Arthur’s affidavit provided probable cause for the magistrate to

issue the search warrant pursuant to which the police obtained the evidence of the

marijuana operation in appellant’s home upon which he was convicted. And, I

would further hold that the evidence obtained by the police in reliance on the

warrant issued by the magistrate based in part on the then-legal warrantless dog-

sniff search was admissible under the federal good-faith exception to the

exclusionary rule.

                                B. The Majority Opinion

      The majority, however, holds that Texas’s statutory exclusionary rule and its

good-faith exception do not derive from the federal rule and, indeed, that Texas

law expressly overrides the federal rule with its statutory exclusionary rule set out



                                          9
in Texas Code of Criminal Procedure article 38.23(a). With regard to Davis, the

majority states, “[W]e 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.” Slip

Op. at 9. It then concludes that Davis’s holding is inconsistent with the terms of

Texas’s statutory good-faith exception to the exclusionary rule set out in article

38.23(b) and that Davis cannot and “does not create a valid exception to the Texas

exclusionary statute.” Slip Op. at 9, 13–14. Accordingly, it spends the rest of its

opinion explaining why, in its view, the federal good-faith exception to the

exclusionary rule, explicated in Davis, is inconsistent with Texas’ statutory

exclusionary rule and good-faith exception and is inapplicable here.

      In my view, the majority opinion is based on two errors of law. First, Texas

did not pass its exclusionary statute to override the federal exclusionary rule and its

good-faith exception devised by the United States Supreme Court for use in

applying Fourth Amendment rulings. It did just the opposite: it expressly adopted

the federal rule and the federal case law that established and construes it.

Moreover, as shown above and below, the Texas courts have consistently followed

both federal and state precedent in construing this statute, with a lone exception for

a direct conflict between the language of article 38.23 and federal precedent—a

conflict not present in this case. Second, the majority’s conclusion that the warrant



                                          10
upon which the search of appellant’s apartment was based was illegal at the time it

was issued assumes the answer to the question posed to this Court by the Court of

Criminal Appeals as its major premise. Therefore, it answers the question whether

the warrant was illegal at the time it was issued by concluding that because the

probable cause for the warrant was based in part on a warrantless dog-sniff search,

which was only subsequently held to be unconstitutional in Jardines, the warrant

was not based on probable cause at the time it was issued and, therefore, was

illegal. This argument is both circular and question-begging and, in my opinion,

its conclusion is incorrect.

      1. Texas’s Exclusionary Rule: Code of Criminal Procedure Article 38.23

      Texas’s exclusionary statute provides, in relevant part:

      (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. ANN. art. 38.23 (Vernon 2005). Subsection (a) sets out the

exclusionary rule, and subsection (b) sets out the good-faith exception to the rule.




                                         11
      2. Miles v. State and the Origin and Scope of Texas’s Exclusionary Rule

      Relying on the Court of Criminal Appeals’ 2007 opinion in Miles v. State,

the majority claims that the Texas exclusionary rule “is not merely a judicial

creation” but “was enacted by the legislature,” so that Texas courts may disregard

the United States Supreme Court’s construction of the rule. See Slip Op. at 10

(citing Miles v. State, 241 S.W.3d 28, 33–36 (Tex. Crim. App. 2007)). This is the

opposite of what Miles actually says and is an incorrect statement of Texas law.

The majority then states, “The Texas exclusionary statute is ‘broader than its

federal counterpart’ and is therefore more broadly protective of individual rights.”

Id. at 11 (quoting Miles, 241 S.W.3d at 34). This statement is narrowly correct, but

is applied by the majority out of context in this case to reach a conclusion

supported neither by the text of the Texas exclusionary statute nor by the

construction of that statute and its history as explicated by the Court of Criminal

Appeals in Miles.

      Miles discusses the history of the exclusionary rule at length, pointing out

that the Texas Legislature enacted the predecessor to article 38.23 in 1925

expressly to overrule the 1922 Court of Criminal Appeals Prohibition-era case,

Welchek v. State, 247 S.W. 524 (Tex. Crim. App. 1922). 241 S.W.3d at 33. In

Welchek, the Court of Criminal Appeals had refused to recognize an exclusionary

rule under the Texas Constitution for three jugs of whiskey seized without a



                                        12
warrant and had “specifically rejected the reasoning of the United States Supreme

Court cases that had imposed an exclusionary rule on federal courts under the

Fourth Amendment.” Id. The statute was thus enacted by the Texas Legislature to

impose on Texas courts the exclusionary rule created by the United States Supreme

Court for use in the federal courts. And it statutorily abrogated the Court of

Criminal Appeals case that had refused to recognize the rule.

      The Court of Criminal Appeals stated in Miles—directly contrary to what

the majority says it states—that by enacting the exclusionary rule, now article

38.23, “[t]he Legislature thus ‘sanctioned the construction by the Federal courts of

the search-and-seizure clause of the [federal] Constitution.’” Id. at 34 (quoting

Chapin v. State, 296 S.W. 1095, 1100 (Tex. Crim. App. 1927)).             The only

difference with respect to the exclusionary rule as set out in the predecessor to

article 38.23(a) was that the Texas Legislature expanded the rule to apply not only

to evidence illegally seized by government officials, as the federal rule does, but

also to evidence illegally seized by private individuals, by adding the phrase “or

other person” to article 38.23(a). Id. at 34–35. Thus, the rule excludes evidence

obtained “in violation of any provision of the Constitution or laws of the State of

Texas, or of the United States of America” not only by “an officer” but also by an

“other person,” including “‘vigilante-type private citizens [acting] in concert with

the police conducting illegal searches for whiskey.’” Id. at 33–35 (quoting State v.



                                        13
Johnson, 939 S.W.2d 586, 591 (Tex. Crim. App. 1996) (McCormick, P.J.,

dissenting)). However, this is the only way mentioned in Miles in which the Texas

exclusionary rule was made statutorily broader than the federal rule. Because the

issue in this case is the application of the exclusionary rule to evidence seized by

police officers, the fact that article 38.23(a) extends the protection of the

exclusionary rule to evidence seized by “other person[s]” is irrelevant to this case.

Thus, there is no support in Miles for the majority’s broadening of the exclusionary

rule on the ground that article 38.23(a) is broader than the federal exclusionary

rule.

        The Court of Criminal Appeals’ opinion in Miles cannot plausibly be

construed as providing that, in enacting the exclusionary rule by statute in Texas,

the Texas Legislature intended to reject the federal exclusionary rule and its

construction by the federal courts and to impose broader protections against

searches and the seizure of evidence by police than the United States Supreme

Court has imposed upon the federal courts. See id. at 34 (stating that, in enacting

predecessor to article 38.23, Legislature “sanctioned the construction by the

Federal courts of the search-and-seizure clause of the [federal] Constitution”). The

only material difference between the exclusionary rule set out in article 38.23(a)

and the federal rule is that the Texas statute extends the exclusionary rule to




                                         14
evidence seized by “other persons” acting illegally. The majority’s argument that

Miles supports its conclusion is, in my view, without merit.

      Miles did not, however, deal with or discuss the statutory good-faith

exception to the exclusionary rule set out in article 38.23(b).

      3. The “Warrant Based on Probable Cause” Requirement and Article
         38.23(b)’s “Good-Faith Exception” to the Exclusionary Rule

      The majority also claims that the good-faith exception to the exclusionary

rule, as the Supreme Court explicated it in Davis, cannot apply to this case because

it is not consistent with the text of article 38.23(b), which sets out the good-faith

exception to the exclusionary rule. See Slip Op. at 12–13. That text provides for

an exception to the exclusionary rule for evidence “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. ANN. art. 38.23(b).

The majority opines, “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.” Slip Op. at 12 (quoting TEX. CODE CRIM. PROC. ANN. art. 38.23(b)).

      The majority opines that the good-faith exception to the exclusionary rule in

Davis does not apply in this case because the good-faith exception as explicated in

that federal Supreme Court case conflicts with the express language of article

                                          15
38.23(b) by allowing illegally obtained evidence to be admitted. Slip Op. at 13–

14. Thus, it opines, Davis creates an exception to the exclusionary rule in conflict

with Texas law. Id. It also concludes that Texas case law, in construing the good-

faith exception in article 38.23(b), does not recognize the authority of federal cases

construing the federal good-faith exception to the exclusionary rule as precedential

or persuasive. Slip Op. at 17–18. I disagree with both arguments and address

them in turn.

             a. The argument that Davis conflicts with article 38.23(b)

      Despite the majority’s claims, there is no conflict between the plain

language of article 38.23(b) and Davis. Article 38.23(b) provides a statutory good-

faith exception to the exclusionary rule that permits the admission of evidence that

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. See TEX.

CODE CRIM. PROC. ANN. art. 38.23(b). Davis does not conflict with that language

in any way. And merely claiming—as the majority does—that Davis conflicts

with the text of article 38.23(b) because a warrantless dog-sniff search is unlawful

and therefore cannot provide probable cause for a warrant entirely begs the

question posed to this Court by the Court of Criminal Appeals: Does the good-faith

exception to the exclusionary rule preserve the admissibility of evidence that was

obtained pursuant to a warrant issued on the basis of probable cause supplied, in



                                         16
part, by a warrantless search that was deemed lawful under binding precedent at

the time of the search but that was subsequently held by a new ruling of the

Supreme Court to be unlawful under the Fourth Amendment?                Or does the

subsequent Supreme Court ruling holding a warrantless dog-sniff search to be

illegal operate retroactively to make the warrantless dog-sniff search unlawful at

the time of the search, vitiating the probable cause relied upon to obtain the

warrant to search appellant’s apartment and rendering that search unlawful and the

evidence seized inadmissible?

      Davis says that the Supreme Court’s subsequent ruling that a warrantless

search is constitutionally invalid does not retroactively render inadmissible

evidence that was obtained by police officers in good-faith reliance on binding

precedent that, at the time of a warrantless search, deemed the search legal, and no

Texas law says anything different. See 131 S. Ct. at 2429. The majority, however,

ignores Davis as inapplicable and says, on the basis of no authority other than its

misreading of relevant law, that Jardines made the dog-sniff search in this case

retroactively illegal and therefore the good-faith exception does not apply.

      Essentially, the majority reasons that article 38.23(b) saves from exclusion

only evidence seized in good-faith reliance on a warrant “based on probable

cause,” and it concludes that the evidence in this case was not obtained pursuant to

a warrant “based on probable cause” because Jardines retroactively vitiated the



                                         17
probable cause finding necessary to sustain the warrant when it declared the

warrantless dog-sniff on which this warrant was, in part, obtained unconstitutional.

See Slip Op. at 15–17. But this argument, as stated above, is circular. A circular

argument is an invalid argument that cannot support a legal ruling—here, the

majority’s ruling that Jardines applies retroactively to exclude the marijuana

evidence seized from appellant’s house.

      When the question posed to us by the Court of Criminal Appeals is actually

addressed, the answer to it is the opposite of the majority’s. At the time the

warrant issued in this case—which was well prior to the Supreme Court’s decision

in Jardines declaring warrantless dog-sniff searches occurring on the curtilage of a

residence unconstitutional—an unbroken string of Texas precedential cases relying

on both federal and Texas law interpreted the Fourth Amendment to permit just

such warrantless dog sniffs. See Caballes, 543 U.S. at 409, 410, 125 S. Ct. at 838

(use of “well-trained narcotics-detection dog” during traffic stop does not violate

Fourth Amendment); Tarazon-Silva, 166 F.3d at 341 (dog sniff of garage and vent

on exterior of house not search under Fourth Amendment); Williams, 69 F.3d at 28

(positive dog alert creates probable cause to search vehicle); Romo, 315 S.W.3d at

573 (dog sniff of garage door and backyard fence not search under Fourth

Amendment); Rodriguez, 106 S.W.3d at 228–29 (dog sniff at front door of house

not search); Porter, 93 S.W.3d at 346–47 (same). Therefore, under Davis, the



                                          18
evidence seized pursuant to the warrant here should not have been excluded, as it

was seized pursuant to “a warrant issued by a neutral magistrate based on probable

cause,” as required by the plain language of article 38.23(b), and that was obtained

by officers acting in good-faith reliance on a warrantless dog-sniff search, which

had long been held to be legal under binding Texas and federal precedent.

      Jardines construes the reach of the Fourth Amendment and Davis continues

a long line of federal and state cases construing the exclusionary rule and holding

that evidence seized in violation of the Fourth Amendment through police

misconduct must be excluded but that evidence seized by the police in good faith

need not be.

               b. Texas case law construing the scope of the good faith exception

      No Texas case law prior to the majority opinion in this case has held that

Texas does not follow United States Supreme Court rulings construing the

exclusionary rule and its good faith exception. Rather, Miles expressly states that,

in enacting the predecessor to article 38.23, the Texas Legislature “sanctioned the

construction by the Federal courts of the search-and-seizure clause of the [federal]

Constitution.” 241 S.W.3d at 34 (quoting Chapin, 296 S.W. at 1100). And the

Texas exclusionary statute was explicitly based on the federal exclusionary rule—

as the Court of Criminal Appeals has acknowledged. See id.




                                         19
      The majority places great emphasis on two Court of Criminal Appeals

opinions construing Texas’s statutory good-faith exception to the exclusionary rule

that it contends support its ruling—Wehrenberg v. State, 416 S.W.3d 458 (Tex.

Crim. App. 2013), and State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App.

1996). Neither of these cases, however, supports the majority’s opinion. Rather,

as the cases show, federal law construing the exclusionary rule and the good-faith

exception apply in every Texas state court case under article 38.23 unless the

express language of that article renders federal precedent inapplicable. Daugherty

and Wehrenberg illustrate this point.

      In Daugherty, the Court of Criminal Appeals held that the federal

“inevitable discovery” doctrine—which permits the admission of evidence in

federal court that was unlawfully obtained but that would inevitably have been

discovered—is inapplicable in Texas because the plain language of article 38.23(b)

provides a good faith exception to the exclusionary rule only for evidence that was

lawfully obtained. See 931 S.W.2d at 270. Specifically, article 38.23(b) protects

the admissibility only of “evidence . . . obtained by a law enforcement officer

acting in objective good faith reliance upon a warrant issued . . . based on probable

cause.” TEX. CODE CRIM. PROC. ANN. art. 38.23(b). The court held in Daugherty

that the terms of article 38.23 “must apply in all cases not excepted” and that when

the evidence was, in fact, seized illegally, the illegality of the seizure may not be



                                         20
ignored simply because the evidence would have been discovered anyway. 931

S.W.2d at 270–71. However, Daugherty, by its own terms, is inapplicable in this

case because the inculpatory evidence against appellant was obtained pursuant to a

warrant that was issued on the basis of probable cause that was deemed lawfully

obtained under both federal and state precedent at the time of the search. The

courts, therefore, do not have to rely in this case on the inevitable discovery of

appellant’s marijuana operation to justify admissibility of that evidence because it

was obtained pursuant to a warrant that was itself deemed lawfully obtained at the

time it issued. This is the exact opposite of the situation in Daugherty.

      Wehrenberg, however, represents the other side of the coin from Daugherty,

and it is applicable here. In that case, the Court of Criminal Appeals upheld the

admissibility in Texas courts of evidence lawfully obtained pursuant to the federal

“independent source” doctrine.     Wehrenberg, 416 S.W.3d at 472–73.         And it

specifically contrasted that doctrine with the “inevitable discovery” doctrine,

which the court had held in Daugherty does not save from exclusion evidence

unlawfully obtained on the ground that it inevitably would have been discovered.

Id.   The court explained the difference, stating, “Although evidence that has

actually been acquired in an unlawful manner is considered ‘obtained’ in violation

of the law, regardless of whether it inevitably would have been discovered, the

same cannot be said of evidence discovered and obtained pursuant to an



                                         21
independent source because that evidence is lawfully obtained at the time of

seizure.” Id. (emphasis added). This is exactly what happened here.

      This case is properly governed by Wehrenberg and Davis. There is no

inconsistency between the plain language of article 38.23 and Davis’s (and its

federal and state predecessors’) holding that the exclusionary rule does not apply to

evidence obtained when police conduct a search in “objectively reasonable

reliance” on a warrant lawfully obtained under “binding judicial precedent” at the

time of the search, even if, under a subsequent Supreme Court interpretation of the

Fourth Amendment, the warrant would be considered to have been unlawfully

obtained. See Davis, 131 S. Ct. at 2428. There is also no evidence of any culpable

police conduct that would render the good-faith exception inapplicable. See id. at

2428–29. And there is no language in article 38.23(b) that is inconsistent with the

Texas courts holding admissible evidence obtained in “objective good faith

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

the time of seizure. See TEX. CODE CRIM. PROC. ANN. art. 38.23(b). Thus, under

Davis and Wehrenberg, the evidence of appellant’s marijuana operation should be

deemed “lawfully obtained at the time of seizure.” See Wehrenberg, 416 S.W.3d

at 473.

      In sum, Jardines extends the protection of the exclusionary rule to evidence

seized as a result of a warrantless dog sniff on the curtilage of a residence. And



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Davis preserves the admissibility of evidence seized by the police prior to that

ruling pursuant to a warrant obtained in good-faith reliance on binding precedent at

the time the warrant was obtained. Nothing in Texas law or in the text of article

38.23 provides any basis for applying Jardines and ignoring Davis in this case.

      Having failed to address Davis, however, and without showing any genuine

conflict between the federal good-faith exception to the exclusionary rule as

explicated in Davis and the express terms of Texas’s statutory good-faith exception

set out in article 38.23(b) or any genuine conflict between applicable federal law

construing the good-faith exception and controlling Texas precedent, the majority

in this case does exactly the opposite of what the Supreme Court said in Davis that

a court construing the exclusionary rule and its good-faith exception in deciding

Fourth Amendment cases should do: it declares the warrant obtained by Officer

Arthur to search appellant’s residence to be illegal because of the subsequent

change in the construction of the Fourth Amendment by the Supreme Court in

Jardines and then declares the officers’ actions in executing the warrant

retroactively illegal and the evidence seized under the warrant inadmissible, even

though the search was undertaken in objective good faith and was based on

probable cause under precedent binding at the time the warrant was issued.

      The majority’s construction of the text of article 38.23 is not only unfounded

in law but objectively unreasonable under the Supreme Court and Texas cases that



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established the exclusionary rule and its good faith exception, in that it entails

exactly the absurd consequences avoided by applying the exclusionary rule and the

good-faith exception in accordance with Davis, Miles, and Wehrenberg.              The

majority opinion requires the courts to construe the exclusionary rule as having the

opposite purpose from that for which it was promulgated—the deterrence of police

illegality—and to apply it where that purpose is not advanced and, therefore,

should not be applied.      See Miles, 241 S.W.3d at 35 (“Deterrence of police

illegality is the ‘core’ rationale for applying the federal exclusionary rule . . . .”);

see also Davis, 131 S. Ct. at 2431 (“[E]xclusion of evidence does not automatically

follow from the fact that a Fourth Amendment violation occurred. The remedy is

subject to exceptions and applies only where its ‘purpose is effectively

advanced.’”) (citations omitted). The majority’s holding thus vitiates the purpose

of both the exclusionary rule and the good faith exception.

      For the foregoing reasons, I cannot join the majority opinion or its holding,

and I therefore must dissent.




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                                    Conclusion

      I would affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

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




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