McClintock v. State, PD–1641–15

• Decision Date: 22 March 2017
• Docket Number: NO. PD–1641–15,PD–1641–15
• Parties: Bradley Ray MCCLINTOCK, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

541 S.W.3d 63

Bradley Ray MCCLINTOCK, Appellant

v.The STATE of Texas

NO. PD–1641–15

Court of Criminal Appeals of Texas.

FILED: March 22, 2017

Rehearing Overruled September 13, 2017

Norman J. Silverman, Houston, TX, for Appellant.

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

OPINION

Yeary, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Richardson, Keel and Walker, JJ., joined.

This case involves the proper construction of Article 38.23(b) of the Texas Code of Criminal Procedure, the statutory good-faith exception to our statutory exclusionary rule. TEX. CODE CRIM. PROC. art. 38.23(b). We have reviewed this case once before on discretionary review. McClintock v. State , 444 S.W.3d 15 (Tex. Crim. App. 2014). At that time, we remanded it to the court of appeals to allow that court to address, in the first instance, whether the United States Supreme Court's recent interpretation of the court-made good-faith exception to the federal exclusionary rule in Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), should have any application in the construction of our own statutory good-faith exception to our statutory exclusionary rule. We observed that a remand was "the proper disposition" of our first discretionary review because the answer was "not remotely clear cut" and "our resolution of the issue ... would benefit from a carefully wrought decision from the court of appeals." 444 S.W.3d at 20–21. The court of appeals has now issued its opinion. McClintock v. State , 480 S.W.3d 734 (Tex. App.–Houston [1st Dist.] 2015). The State again petitioned this court for discretionary review, which we granted.

BACKGROUND

We gave a detailed recital of the facts in our first opinion in this case. McClintock , 444 S.W.3d at 16–17. We need not repeat them to that level of specificity here. Suffice it to say that Appellant lived in an upstairs residence above a business. Access to his residence could be gained through a stairway at the back of the building. Police took a drug-sniffing dog to Appellant's door at the top of that stairway, where the dog alerted to the presence of drugs. This fact was included in a warrant affidavit upon which a warrant to search the residence issued. Charged with possession of a felony amount of marijuana, Appellant filed a motion to suppress the contraband, contending that it had been obtained under a search warrant that was not supported by probable cause. He claimed that the affidavit in support of the search warrant contained illegally obtained information, and that, redacting that information from the warrant affidavit, the remaining information failed to supply probable cause. Specifically, he argued that the police had conducted an illegal search at the door to his apartment using a drug-sniffing dog, and then incorporated that ill-gotten information into the search warrant affidavit. The trial court denied the motion, expressly holding that the police dog had not invaded the curtilage of Appellant's home at the time it alerted to the presence of contraband, and that the use of a drug dog therefore did not constitute a search for Fourth Amendment purposes. Appellant then pled guilty to a reduced charge, preserving his right to appeal the adverse ruling on his motion to suppress.

While the case was pending on appeal, the United States Supreme Court decided Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). On the strength of that opinion, the court of appeals reversed Appellant's conviction, holding that the canine drug sniff had in fact constituted an unconstitutional search of the curtilage of Appellant's residence,¹ and that, excluding the dog's contraband alert from the search warrant affidavit, there was no probable cause to support the warrant. McClintock v. State , 405 S.W.3d 277 (Tex. App.–Houston [1st Dist.] 2013). The State filed a petition for discretionary review. For the first time, the State argued that, even accepting that the dog sniff was illegal under Jardines , the court of appeals erred to hold that the trial court should have excluded the product of the search warrant. Invoking the Supreme Court's opinion in Davis , the State argued that, because the police relied upon then-binding legal precedent holding that the dog sniff did not constitute a search for Fourth Amendment purposes, they committed no malfeasance and should not have to suffer the exclusion of evidence under either the Fourth Amendment exclusionary rule or the statutory exclusionary rule embodied in Article 38.23(a) of the Texas Code of Criminal Procedure.² We remanded the cause to the court of appeals to address this contention in the first instance. McClintock v. State , 444 S.W.3d 15, 20–21 (Tex. Crim. App. 2014).

On remand, the justices in the court of appeals disputed the proper scope of Article 38.23(b)'s good-faith exception to our statutory exclusionary rule.³ The majority held that the language of the exception plainly limits its application to "evidence obtained" by virtue of "reliance upon" a "warrant" that is "based on probable cause." McClintock , 480 S.W.3d at 742–44. It observed that the warrant upon which police relied in this case was not supported by probable cause because the affidavit undergirding the warrant contained information that itself was tainted by an illegality. Id. On its face, the majority explained, Article 38.23(b) does not apply to excuse this underlying illegality, and so, the illegally obtained information may not be included in the probable cause calculation. Id. The majority went on to say that, excluding that illegally obtained information from the warrant affidavit, insufficient "probable cause" remained to support the warrant. Id. Therefore, the majority concluded, the good-faith exception embodied in Subsection (b) did not apply, exclusion of the contraband was appropriate under Subsection (a), and the trial court erred in failing to suppress the evidence. Id.

The dissenting justice disagreed. Id. at 744–54 (Keyes, J., dissenting). She believed it would be just as faithful to the language of the statutory exception to hold that, so long as the illegal conduct that infected the acquisition of the information that went into the warrant affidavit was itself undertaken in good faith, then the evidence was "obtained ... in good faith reliance upon a warrant ... based on probable cause[,]" and evidence obtained pursuant to the warrant need not be excluded. Id. That is to say, so long as the police had a good-faith basis to believe, under binding legal precedent at the time, that they had lawfully obtained the information included in the warrant affidavit, then the exclusionary provisions of Article 38.23(a) should not apply. Id. Such an interpretation, Justice Keyes believed, would bring the statutory exception in line with the Supreme Court's gloss on the federal exclusionary rule announced in Davis . Id.

We granted the State's second petition for discretionary review in order to resolve this dispute and clarify the reach of Article 38.23(b). Boiled down, the question is this: How should Article 38.23(b) apply, if at all, when the warrant affidavit supplies probable cause but that probable cause appears to be tainted by a prior illegality?

ANALYSIS

Statutory Construction

Prior to the advent of Article 38.23, this Court had recognized no state exclusionary remedy in Texas. Welchek v. State , 93 Tex.Crim. 271, 247 S.W. 524 (1922). We still have not fashioned a judicial exclusionary rule. The scope of the current state exclusionary rule is, therefore, purely a function of our construction of the statute. While Article 38.23 to some extent "mirrors" the federal exclusionary rule, Miles v. State , 241 S.W.3d 28, 32 (Tex. Crim. App. 2007), they are not identical, and we are not free to graft additions or alterations to the statute at our pleasure, in the name of policy, that are plainly inconsistent with the text. The proper scope of Article 38.23(a)'s exclusionary rule is a question of statutory construction. State v. Daugherty , 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) ; Wehrenberg v. State , 416 S.W.3d 458, 468–70 (Tex. Crim. App. 2013). The proper scope of any exception to the exclusionary rule, such as Article 38.23(b)'s good-faith exception, is likewise a question of statutory construction. See Baker v. State , 956 S.W.2d 19, 23 (Tex. Crim. App. 1997) ("[W]hether a recognized exception to a federal exclusionary rule also applies to Article 38.23 depends upon whether the exception is consistent with the language of Article 38.23.").

The Supreme Court's decision in Davis dealt with the good-faith exception to the federal, court-made exclusionary rule. The question in Davis was whether to apply the federal exclusionary rule "when police conduct a search in compliance with binding precedent that is later overruled." 564 U.S. at 232, 131 S.Ct. 2419. The Supreme Court concluded that "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Id. at 241, 131 S.Ct. 2419. Nothing about Davis 's holding with respect to the federal exclusionary rule necessarily dictates how Article 38.23(b) should be construed. Whether Article 38.23(b)'s good-faith exception should apply to the facts of the instant case is purely a question of legislative intent. Consequently, we must decide whether, when the Legislature provided that the good-faith exception should apply only to excuse the illegal acquisition of evidence when the evidence was obtained in reliance upon a warrant "based upon probable cause[,]" it intended that any information contributing to that probable cause that was itself obtained by police misconduct should be discounted from the probable cause assessment.

When we construe Article 38.23, as with any statute, "[i]n divining legislative intent, we look first to the language of the statute[,]" and "[w]hen the...