McClintock v. State
| Decision Date | 11 June 2013 |
| 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 |
OPINION TEXT STARTS HERE
Norman J. Silverman, Law Offices of Norman J. Silverman, Houston, TX, for Appellant.
Mike Anderson, District Attorney–Harris County, Bridgett Holloway, Assistant District Attorney–Harris County, Houston, TX, for Appellee.
Panel consists of Justices KEYES, MASSENGALE, and BROWN.
The police seized marijuana from appellant Bradley McClintock's apartment. They did so pursuant to a search warrant obtained with evidence of a drug-detecting dog's sniff at McClintock's back door, conducted without a warrant. The United States Supreme Court has since held that a dog-sniff under these circumstances is a search within the meaning of the Fourth Amendment. Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).
McClintock moved to suppress the fruits of the search, and the trial court denied the motion. Reserving his right to appeal the evidentiary issue, he then pleaded guilty to the possession of marijuana in an amount from four ounces to five pounds. SeeTex. Health & Safety Code Ann. §§ 481.120, 481.121 (West 2010). The main question raised by this appeal is whether, after excluding the evidence of the dog-sniff, the other information contained in the affidavit offered to obtain the warrant sufficiently established probable cause for the search. We conclude it did not, and accordingly we reverse and remand for a new trial.
Officers from the Department of Public Safety set up surveillance at a two-story brick duplex located at 412 West Clay Street in Houston. The first floor is occupied by two businesses that manufacture raw vegan food and food for farmers' markets, while the second floor has a residential apartment. The building has two front doors. On the right, a door leads to the businesses' kitchen; on the left, the door leads to an enclosed stairway to the apartment. A narrow driveway or alley leads to a backyard parking lot for the building. There is a ground-floor entrance to the businesses at the back of the building. Also in the backyard parking area is an open metal staircase leading up to a door for the second-floor apartment.
The DPS officers watched the building for about a week, observing McClintock's comings and goings from his apartment. Based on that investigation, Officer Ryan Arthur applied for a search warrant. The warrant affidavit sought to justify a search of McClintock's apartment based on the following information:
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 set of stairs is located on the backside of the location which is a public parking area for the location/business. There are no gates, fences or doors that block access to this parking area or to the stairs leading to the door to the 2nd floor. 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.
The magistrate issued the requested search warrant, and the police seized marijuana from the apartment.
McClintock filed a motion to suppress, challenging the dog's sniff at the apartment's doorway as an illegal search. He argued that the stairway landing in front of the apartment door was curtilage, not a public space, and therefore he had a reasonable expectation of privacy there. The trial court found the warrant to be valid and denied the motion to suppress. Reserving his right to appeal from the adverse ruling, McClintock pleaded guilty to a state-jail felony. He then filed this timely appeal of the ruling on the motion to suppress.
We review a trial court's ruling on a motion to suppress using a bifurcated standard: we give almost total deference to the historical facts found by the trial court, and we review de novo the trial court's application of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App.2011). When a trial court is determiningprobable cause to support the issuance of a search warrant, there are no credibility determinations and the court is limited to the four corners of the affidavit. Id. (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004)). The facts upon which the magistrate bases a probable-cause determination must appear within the four corners of the affidavit submitted in support of the request for a warrant. See, e.g., Crider v. State, 352 S.W.3d 704, 707 (Tex.Crim.App.2011); Cassias v. State, 719 S.W.2d 585, 587–88 (Tex.Crim.App.1986). The affidavit must allow the magistrate to independently determine probable cause, and the magistrate's actions “cannot be a mere ratification of the bare conclusions of others.” Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App.2007) (quoting Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983)).
A magistrate shall not issue a search warrant without first finding probable cause that a particular item will be found in a particular location. See, e.g., McLain, 337 S.W.3d at 272. In reviewing the affidavit before the magistrate, we interpret it in a commonsense and realistic manner. Rodriguez, 232 S.W.3d at 61. As long as the magistrate had a “substantial basis” for concluding that probable cause existed, we will uphold the magistrate's probable-cause determination. McLain, 337 S.W.3d at 271. “Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location.” Id. at 272.
The government's use of a trained police dog to investigate the home and its immediate surroundings, called the curtilage, is a search under the Fourth Amendment. Jardines, 133 S.Ct. at 1417–18. The curtilage immediately surrounds and is associated with the home, such as a porch or other adjacent areas “to which the activity of home life extends.” Id. at 1415 (quoting Oliver v. United States, 466 U.S. 170, 182 n. 12, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984)). Although police may approach a home and enter the curtilage to knock on a door, just as any private citizen might, they lawfully may not approach a residence's door with the objectively apparent purpose of searching that residence without a warrant, as is demonstrated when the police approach with a trained drug-detection dog. Id. at 1416 & n. 3. Such a search exceeds the implicit license granted by custom that allows strangers to approach a home and briefly solicit its occupants from within the curtilage. The Fourth Amendment protects against these violations of the ancient rule that “the property of every man [is] so sacred, that no man can set his foot upon his neighbour's close without his leave.” Id. at 1415 (quoting Entick v. Carrington, 2 Wils.K.B. 275, 291, 95 E.R. 807, 817 (1765)).
The boundaries of the curtilage are easily understood from daily experience. Oliver, 466 U.S. at 182 n. 12, 104 S.Ct. at 1743. Curtilage includes a home's doors and porch, see Jardines, 133 S.Ct. at 1412, but does not include open fields, which are outside the bounds of the home and are not immediately surrounding and associated with the home. See, e.g., Oliver, 466 U.S. at 180–81, 104 S.Ct. at 1742;United States v. Dunn, 480 U.S. 294, 303, 107 S.Ct. 1134, 1141, 94 L.Ed.2d 326, –––– (1987) (). Likewise, curtilage does not include public spaces such as the common areas or hallways of an apartment complex. See, e.g., United States v. Ramirez, 145 Fed.Appx. 915, 922–23 (5th Cir.2005) (); United States v. Hawkins, 139 F.3d 29, 32–33 (1st Cir.1998) (); United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir.1992) (same).
In this case, the landing in front of the apartment's door is part of the apartment's curtilage. No different than a porch, the stairway landing attached to and surrounded the entrance to McClintock's home and the activity of home life extended onto it. McClintock kept several house plants on the landing. The...
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...States Supreme Court decision was rendered. She also argued this case was substantially similar to the facts in McClintock v. State, 405 S.W.3d 277, 284 (Tex.App.2013), which held the landing outside the defendant's apartment was part of the apartment's curtilage and, consistent with Jardin......
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McClintock v. State, 01–11–00572–CR
...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 t......