

NO. 07-09-0234-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
APRIL 6, 2010
 
______________________________
 
 
THE STATE OF TEXAS, APPELLANT
 
V.
 
CHRIS ALLEN McLAIN, APPELLEE
 
 
_________________________________
 
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
 
NO. B18002-0904; HONORABLE EDWARD LEE SELF, JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
CONCURRING OPINION
            Appellee's
business and residence were searched pursuant to a search warrant, issued by a
magistrate, based upon an affidavit which the trial court found lacked a
substantial basis for concluding that a search of the described premises would
uncover evidence of wrongdoing at the
time the warrant was issued. 
Examining the four corners of the affidavit, the trial court found that
the affidavit lacked any specificity regarding when the matters referenced occurred because the only temporal
statement concerning evidence to be seized was as follows:
In the past 72 hours, a
confidential informant advised the Affiant that Chris was seen in possession of
a large amount of methamphetamine at his residence and business.
 
The trial court concluded that the reference to
"the past 72 hours" was a reference to when the affiant spoke to the
confidential informant and not a reference to when the confidential informant
witnessed Appellee in possession of the contraband.  Based upon that finding, the trial court
granted Appellee's motion to suppress evidence seized as a result of the
execution of that search warrant.  In an
appeal brought by the State, the majority has found, and I agree, that the
trial court did not abuse its discretion in granting Appellee's motion to
suppress.  While I concur in the result
reached by the majority, I write separately because I interpret the State's
second issue differently than the majority. 
            The
majority construes the State's second issue as contending that the trial court
erred because the "good faith" exception found in article 38.23(b) of
the Texas Code of Criminal Procedure applies so as to exempt the contested
evidence from exclusion.  The majority
then proceeds to overrule that issue by explaining why that exception does not
apply to the situation where an officer's objective good faith reliance is
based upon a warrant that was not issued upon probable cause.  While I agree with this conclusion, I
construe the State's contention differently. 
I believe the State is contending that Appellee did not raise a article
38.23 objection, thereby waiving it, and that this Court should therefore apply
a good faith exception to the application of the exclusionary rule for the
technical violation of an accused's constitutional rights, both state and
federal, where the evidence is obtained by a law enforcement officer acting in
objective good faith reliance upon a warrant issued by a neutral magistrate.
            Neither
the order granting Appellee's motion to suppress, nor the Findings of Fact and Conclusions of Law filed
by the trial court, specify the basis upon which the evidence seized was
suppressed.  Furthermore, neither the Brief for the Appellee filed in this
cause, nor the Brief
in Support of Defendant's Motion to Suppress Evidence, ever mention article
38.23.  The only reference Appellee makes
to article 38.23 is contained in the Motion
to Suppress, filed by his previous counsel, wherein he generally contends that
the evidence was seized "in violation of the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution, Article I, Section 9,
10, and 19 of the Constitution of the State of Texas and under article 38.23 of
the Texas Code of Criminal Procedure." 
To the extent that the trial court's basis for exclusion was anything
other than article 38.23, I agree with the State's contention that the exclusionary
rule should not apply to the facts of this case.
            While
the Fourth Amendment to the United States Constitution, and Article I, Section
9 of the Texas Constitution, both protect the right of the people to be secure
in their persons, houses, and possessions, against unreasonable searches and
seizures, neither contains a provision expressly precluding the use of evidence
obtained in violation of their commands. 
The exclusionary rule we commonly apply is a judicially created rule
"designed to safeguard Fourth Amendment rights generally through its
deterrent effect."  Herring v. United States, 555
U.S. ___, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38
L.Ed.2d 561 (1974).  The fact that
a Fourth Amendment violation occurs does not necessarily mean that the
exclusionary rule applies and in determining its applicability to a given set
of facts the trial court must consider the objective reasonableness of not only
the officers who originally obtain a warrant, but also the officers who eventually
execute the warrant.  Herring, 129 S.Ct. at 700; United States v. Leon, 468 U.S. 897,
923, n. 24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).  
            In
Herring, the police arrested the
accused based upon a warrant listed in their computer database.  A search incident to that arrest yielded
drugs and a gun.  It was subsequently
determined that the warrant had been recalled months earlier, though the
warrant information had never been removed from that database due to the
negligence of personnel in the reporting jurisdiction's sheriff's office.  When Herring was indicted on federal gun and
drug possession charges, he moved to suppress that evidence.  The trial court concluded that the
exclusionary rule did not apply and denied the motion to suppress.  In affirming the trial court's decision, the
Supreme Court concluded that, although Herring's arrest was predicated upon an
invalid warrant, the benefit of applying the exclusionary rule would be marginal
or non-existent where the arresting officer was acting in objective good faith
when he reasonably believed there to be an outstanding warrant.  Herring, 129 S.Ct. at 704. 
            That
same logic reasonably applies here.  When
officers executed the search warrant in question in this case, they reasonably
believed that the warrant had been issued by a neutral magistrate in compliance
with the provisions of article 18.01 of the Texas Code of Criminal
Procedure.  The police misconduct here,
if any, was bad grammar, not a "systemic error or reckless disregard of
constitutional requirements."  Id. 
In cases such as this, the exclusionary rule should not automatically be
applied.  
            While
I do not read the State's second issue as narrowly as the majority, in the
final analysis, the majority's conclusion is both correct and controlling.  Although Appellee never advocated the
exclusion of evidence on the basis of article 38.23 at trial or on appeal, it
cannot be said that he waived the reference thereto in his motion to suppress.  Because the majority correctly concludes that
the evidence is excludable under article 38.23(b), and because an appellate
court must affirm the decision of the trial court regarding a motion to
suppress if that decision is reasonably supported by the record and is correct
upon any theory of law applicable to the case, Young v. State, 283 S.W.3d 854, 873-74 (Tex.Crim.App. 2009), I
concur in the result reached by the majority.
                                                                                      Patrick A. Pirtle
                                                                                            Justice
 
 
Publish.

