                                 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



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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.




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       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

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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




                                            5
S.W.3d 854, 873-74 (Tex.Crim.App. 2009), I concur in the result reached by the

majority.


                                           Patrick A. Pirtle
                                               Justice


Publish.




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