McClintock v. State, 01–11–00572–CR

• Decision Date: 05 November 2015
• Docket Number: NO. 01–11–00572–CR,01–11–00572–CR
• Parties: Bradley Ray McClintock, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

480 S.W.3d 734

Bradley Ray McClintock, Appellant

v.The State of Texas, Appellee

NO. 01–11–00572–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued November 5, 2015

Norman J. Silverman, for Appellant.

Devon Anderson, District Attorney, Bridget Holloway, Assistant District Attorney, Houston, TX, for the State.

Panel consists of Justices Keyes, Massengale, and Brown

OPINION ON REMAND

Michael Massengale, Justice

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 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, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (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 v. State , 405 S.W.3d 277, 283–84 (Tex.App.–Hous. [1st Dist.] 2013). 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 Amendment purposes. McClintock, 444 S.W.3d at 18. Relying on the Supreme Court's decision in Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (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 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, 69 L.Ed.2d 768 (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, 173 L.Ed.2d 485 (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 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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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.

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

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