State v. Cuong Phu Le

• Decision Date: 29 April 2015
• Docket Number: NO. PD–0605–14,PD–0605–14
• Parties: The State of Texas v. Cuong Phu Le, Appellee
• Court: Texas Court of Criminal Appeals

463 S.W.3d 872

The State of Texas

v.Cuong Phu Le, Appellee

NO. PD–0605–14

Court of Criminal Appeals of Texas.

Delivered: April 29, 2015

Rehearing Overruled July 29, 2015

David Michael Ryan, Houston, TX, for Appellant.

Bridget Holloway, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

NEWELL, J., delivered the opinion of the Court in which KELLER, P.J., and JOHNSON, KEASLER, HERVEY, RICHARDSON and YEARY, JJ., joined.

This case involves a search warrant based in part upon an alert from a drug-detecting dog. After the execution of the search warrant, but before a hearing on the motion to suppress, the United States Supreme Court held in Florida v. Jardines that law-enforcement officers' use of a drug-sniffing dog on the front porch of a home without a search warrant violated the Fourth Amendment. Consequently, this Court must determine whether the search-warrant affidavit—minus the drug-dog's alert—clearly established probable cause. The trial judge held that it did not, and the court of appeals agreed. State v. Cuong Phu Le, No. 14–13–00635–CR, 2014 WL 1390121 (Tex. App.–Houston [14th Dist.] April 8, 2014) (not designated for publication). We reverse because we find that, when looking at the warrant affidavit as a whole, the independently and lawfully acquired information stated in the affidavit clearly established probable cause.

Investigation

In November 2012, Sergeant Robert Clark of the Harris County Sheriff's Department received a report from a concerned citizen that suspicious activity was taking place in a two-story house at 8603 Jubilee Drive, Houston.¹ The concerned citizen observed young Asian males arriving at the residence though no one had moved any furniture into the home. The young Asian males would arrive at the residence in the early evening hours, remain for a short period of time, and then depart. They did not engage in any normal household activities such as yard work or washing cars. The concerned citizen did not see any lights inside the residence even when the young males visited the home during the evening hours.

Sergeant Clark, who worked in the narcotics-investigations division, had extensive formal training and investigatory experience in this area, including specific training on cases involving indoor cultivation and possession of marijuana. A narcotics investigator with 35 years of experience, Sergeant Clark had handled 150 investigations involving indoor marijuana cultivation. Assigned at the time to the FBI's Houston Intelligence Support Center, Sergeant Clark had received advanced training in the detection, operation, and dismantling of indoor grow operations. Based upon this experience, Sergeant Clark was familiar with the characteristics of indoor marijuana grow operations.

After receiving the report, Sergeant Clark ran both a criminal history and a driver's license check on the concerned citizen. He found no criminal history and no driver's license suspensions. A query of the Harris County Appraisal District's online records revealed that the concerned citizen had been a home owner in Harris County for numerous years. The concerned citizen in this case requested anonymity due to safety considerations, but nevertheless remained accountable to Sergeant Clark.

On November 6, 2012, Sergeant Clark traveled to the suspected residence at 8603 Jubilee Drive. He observed that the mini blinds were tightly drawn on every window in the residence. This was consistent with the concerned citizen's observation that no lights could be seen inside the residence.

On November 8, 2012, Sergeant Clark subpoenaed the electrical utilities records for the house from CenterPoint Energy. Appellee was the listed subscriber on the records for the suspected residence, although his driver's license listed his home address as 8335 Wayfarer Lane, also in Houston. Sergeant Clark drove to appellee's listed residence and saw a black Toyota SUV bearing Texas registration 170HZY parked in the driveway. Though the car was registered to someone else, it matched the description and license plate of a car the concerned citizen had seen parked by one of the Asian males at the suspected residence.

On November 13, 2012, Sergeant Clark traveled again to 8603 Jubilee Drive. From the sidewalk, he could plainly hear the central air conditioning unit running continuously even though the ambient temperature at the time was fairly cool. Sergeant Clark found this consistent with an indoor hydroponic grow operation because, based upon his experience and training, he knew that high-intensity metal halide grow lamps typically generate excessive heat that must be dissipated to prevent damage to the plants.

Sergeant Clark walked up the front sidewalk, which was open to all visitors, and stood at the front door. From there, Sergeant Clark could smell the distinct odor of raw marijuana. He was familiar with the odor in light of his work history in conducting investigations of indoor marijuana grows.

Sergeant Clark conducted several nights worth of nighttime surveillance sometime between November 13th and November 27th. He observed no lights inside the two-story residence other than one at the front door and a single rear first-floor light. Sergeant Clark understood that indoor marijuana grow operators often do not live at the grow house, though they must tend to the live plants on a daily basis.

Sergeant Clark spoke with Sergeant Bobby Roberts, a Narcotics Supervisor with the Houston Police Department. A police officer with 26 years of experience, Sergeant Roberts had over 900 hours of police training, including many hours of formal training in the detection and apprehension of persons involved in the trafficking of illegal narcotics. On November 27, 2012, Sergeant Roberts conducted covert surveillance of the house at 8603 Jubilee Drive. He observed the black Toyota SUV with the 170HZY license plate. After the SUV departed the residence, Sergeant Roberts conducted a traffic stop based upon traffic violations. Appellee was driving the car, and Sergeant Roberts smelled the strong odor of raw marijuana. It came from both the vehicle and appellee himself.

At that point, Sergeant Roberts called for a narcotics-detection canine.

After the dog alerted to the smell of raw marijuana at the front door of the suspected house, the magistrate issued a search warrant for 8603 Jubilee. Police executed the warrant and seized 358 marijuana plants from inside the residence. Appellee was indicted for felony possession of marijuana in January 2013.

Suppression

Two months after the State indicted appellee, the United States Supreme Court decided Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). In Jardines, the Court held that law-enforcement officers' use of a drug-sniffing dog on the front porch of a home, to investigate a tip that marijuana was being grown in the home, was a trespassory invasion of the curtilage that constituted a “search” for Fourth Amendment purposes. Id. at 1416. At the suppression hearing, appellee argued that (1) the use of the dog alert violated the Fourth Amendment under Jardines, and (2) the remaining evidence in the affidavit was based on stale facts that were insufficient to support probable cause. Both parties assumed that the dog alert should be excluded from the review and argued whether the affidavit, without it, indicated probable cause.

The trial judge granted the motion to suppress, and the Fourteenth Court of Appeals affirmed. The court of appeals recognized, as did the parties, that the central issue in the case was whether a warrant could have been issued on the basis of the information in the affidavit that remained after removal of the illegal dog sniff at the door. Le, 2014 WL 1390121, at *2–3. The court of appeals agreed with the State that it could properly consider the information from the concerned citizen despite his or her anonymity under a proper totality of the circumstances analysis. Id. at *3. However, the court of appeals did not consider Sergeant Clark's observations on November 13th when he smelled raw marijuana at the front door of the residence because, according to the court of appeals, that information had become stale by the time the warrant was issued. Id. at *5. After disregarding both the illegal dog sniff and Sergeant Clark's observations on November 13th, the court of appeals held that the remaining facts in the affidavit did not clearly establish probable cause that marijuana would be found at the suspected place. We granted the State's petition for discretionary review, asking whether the court of appeals was correct on that count given that this case involves the continuous enterprise of growing marijuana.²

Standard of Review

Appellate courts review a trial court's ruling on a motion to suppress by using a bifurcated standard, giving almost total deference to the historical facts found by the trial court and analyzing de novo the trial court's application of the law. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Ordinarily, the preference for searches based upon warrants requires reviewing courts to give “great deference” to a magistrate's determination of probable cause. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ; see also Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). “[I]n a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; see also Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012) (“ ‘[T]he magistrate's decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.’ ”) (quoting Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) ).

But that...