Opinion issued June 11, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00572-CR ——————————— BRADLEY RAY MCCLINTOCK, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1280089
DISSENTING OPINION
Appellant, Bradley Ray McClintock, pleaded guilty to possession of
between four ounces and five pounds of marijuana and reserved his right to appeal
the denial of his motion to suppress evidence obtained as a result of a search warrant. The trial court assessed punishment at three years’ deferred adjudication
and a $500 fine. On appeal, McClintock argues that the trial court abused its
discretion when it denied his motion to suppress. He contends that (1) the police’s
use of a drug dog to sniff at his apartment door from an external stairway outside
his apartment building was a warrantless search of his apartment that invalidated
the later search warrant under which officers entered the apartment and seized the
marijuana; and (2) the probable cause affidavit was insufficient without this tainted
information to show probable cause to obtain the warrant. The majority agrees
with McClintock and remands the case for a new trial without the evidence
discovered in the apartment.
I would hold that the untainted information contained in the probable cause
affidavit, apart from the information that the dog alerted on the landing outside
McClintock’s second-floor residence, was sufficient to authorize the magistrate to
issue the warrant. See Davis v. State, 202 S.W.3d 149, 156 (Tex. Crim. App.
2006). Therefore, I respectfully dissent from the majority’s opinion and judgment
reversing the judgment of the trial court. I would affirm.
Background
After receiving information that marijuana was being grown on the second
floor of a two-story brick duplex at 412 West Clay Street in Houston, Texas,
Department of Public Safety officers set up surveillance of the building. In an
2 affidavit given to show probable cause to search the location for marijuana and
evidence related to marijuana cultivation, the affiant, Officer R. Arthur, a police
officer qualified to recognize the odor of marijuana and with extensive experience
in narcotics investigation, described the location in detail. A business was located
on the first floor of the duplex, and a parking area was located at the rear of the
building. Officer Arthur stated,
There are no gates, fences or doors that block access to this parking area [behind the duplex] 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.
He also attached a photograph of the location to the affidavit. Based on his
training and experience, the affiant found his observations of McClintock’s
unusual comings and goings “at hours well before and after the business hours of
the business on the first floor” during the week in which surveillance was
conducted at the location to be “consistent with possible narcotics activity.”
The affidavit stated that on September 29, 2010, the affiant approached the
location around 11:30 p.m. and smelled what he knew from training and
experience to be marijuana “from the outside of this location.” After he smelled
the marijuana, he requested and received the assistance of a narcotics canine at the
location. The affiant then approached the duplex with other officers and a trained
forensic narcotics dog, Sita. He observed Sita and her handler, Officer K. Uhlin,
3 walk up to the second floor doorway using the open-to-the-public stairway leading
to the second floor of the location, where Sita gave a positive alert. Based on the
investigation, Officer Arthur applied for a search warrant. The magistrate issued
the warrant, finding that the rear entrance to the apartment where Sita alerted was
open to the public and was not curtilage; that the dog sniff was not a search; and
that the alert at the rear entrance to the apartment established probable cause to
issue the warrant. The police seized marijuana from McClintock’s apartment.
A subsequent affidavit, filed in response to appellant’s motion to suppress,
supplied more details, but did not alter the facts on which the search warrant
issued. The supplemental affidavit was supported by a number of photographs. 1
The supplemental affidavit, also prepared by Officer Arthur, detailed the
surveillance conducted on McClintock between September 23, 2010, and
September 29, 2010. Officer Arthur averred that there were two driveways on
either side of the building leading to the rear parking area of the duplex. The
driveway to the west of the building was shared with an adjacent duplex. There
were “no gates, fences, security devices, or any other type of obstruction blocking
either driveway, or the parking access in the rear of the duplex.” The parking area
1 These additional facts were not relied on by the magistrate to provide probable cause for issuance of the search warrant. They are included here to provide context for Officer Arthur’s affidavit stating that he found McClintock’s activities during the surveillance period to be consistent with possible narcotics activity in contrast to the majority’s speculation as to what the officers might have observed. 4 behind the duplex was a concrete slab surface and was “open to the rear parking
area of the adjacent duplex to the west,” and this parking area was “not blocked by
fences, gates, or any other type of obstructions and share[d] primarily the west
driveway as access, but [was] also accessible from the east driveway.” The
officers observed multiple vehicles parked in this area for extended periods of
time.
There were two front doors to the building side by side on a small porch.
Officer Arthur averred that the door on the right led to the first-floor business and
that the officers did not know what the second door led to, but they had not seen
anyone use it during their multiple days of surveillance. An outside staircase
behind the duplex led from the parking area to an outside back door on the second
floor. Officer Arthur averred that it was the type of stairway that “a delivery
person could or would make deliveries to the upstairs residence area.”
On September 29, 2010, Officer Arthur, Officer Uhlin, Sita, and another
officer approached the location around 11:30 p.m. Officer Arthur averred that he
could smell marijuana while standing on the sidewalk towards the southeast corner
of the location. He observed that several window air conditioning units on the
second floor were running, but the air conditioning units on the first-floor windows
were not running. He continued to smell the odor of marijuana as he walked up the
driveway to the rear of the building and while he was standing in the back parking
5 area. Officer Uhlin and Sita then walked up the external stairs to the back door,
where Sita gave a positive alert to indicate the presence of marijuana. Officer
Arthur averred that “Officer Uhlin stated she observed a towel and plastic sealing
the bottom of the back door and around the seam near the door handle,” which he
knew was a type of seal used to prevent odors from escaping a location. He
walked down the west driveway back to the front sidewalk and noted that all of the
blinds on the upstairs windows were closed, and all of the upstairs windows
appeared to be covered by aluminum foil or another similar item. He knew from
experience that cold air was needed to cool rooms where high intensity lights are
used to grow marijuana and that covering windows in reflective material is
commonly used to prevent light from escaping and to maximize the amount of
light available for growing marijuana.
The trial court denied the motion to suppress and made findings in support
of the denial.
Analysis
A. Standard of Review
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
6 determining probable cause to support the issuance of a search warrant, there are
no credibility determinations; instead, 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)).
We pay great deference to a magistrate’s determination of probable cause
due to the strong constitutional preference for a warrant. Illinois v. Gates, 462 U.S.
213, 236, 103 S. Ct. 2317, 2331 (1983). 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 (citing
Gates, 462 U.S. at 236, 103 S. Ct. at 2331). “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. It is a flexible and non-
demanding standard.” Id. at 272.
On review, we interpret the affidavit before the magistrate in a
commonsense and realistic manner. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.
Crim. App. 2007). We recognize that the magistrate may draw reasonable
inferences. Id. “When in doubt, we defer to all reasonable inferences that the
magistrate could have made.” Id. Although we do not rubber stamp the
magistrate’s determination, the magistrate’s decision should carry the day in
doubtful or marginal cases, even if we might reach a different result upon de novo
7 review. Jones v. State, 338 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.]
2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).
B. The Majority Opinion
Here, Officer Arthur’s affidavit was supported by three grounds for finding
probable cause to search the location, the second floor of 412 West Clay, for
narcotics. First, Officer Arthur stated he was a trained Texas Department of Public
Safety officer and that he recognized the coming and going of McClintock from
the residence at unusual hours as “consistent with possible narcotics activity.”
Second, Officer Arthur himself smelled what was known to him “from training and
experience to be marijuana” from “the outside of this location,” i.e., from outside
412 West Clay. Third, there was the sniff by the dog Sita at the top of the
stairway. Disregarding the information from the dog sniff, the fact that Officer
Arthur himself smelled marijuana from outside of the location while in a public
space constitutes a sufficient basis by itself to obtain a warrant to search the
premises for marijuana cultivation, especially when buttressed by the tip that
officers received concerning the growing of marijuana at the location and Arthur’s
observation of McClintock’s unusual comings and goings, which, as a trained and
experienced narcotics investigator, he knew to be “consistent with possible
narcotics activity.”
8 The majority acknowledges that the evidence seized under the warrant
would be admissible, even if the dog sniff was illegal, “‘if the warrant clearly
could have been issued on the basis of the untainted information in the affidavit.’”
Slip Op. at 8 (quoting Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d)); see also Castillo v. State, 818 S.W.2d 803,
805 (Tex. Crim. App. 1991) (holding that “the inclusion of tainted allegations in an
affidavit does not necessarily render a resulting search warrant invalid”), overruled
on other grounds, Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005). “The
relevant inquiry into probable cause based upon a tainted affidavit is to put aside
the tainted allegations and determine whether the independently acquired and
lawful information clearly established probable cause.” State v. Bridges, 977
S.W.2d 628, 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citing Castillo,
818 S.W.2d at 805); see Pool v. State, 157 S.W.3d 36, 44 (Tex. App.—Waco 2004,
no pet.).
The majority, however, finds the dog sniff to be illegal, discounts the
additional bases for finding probable cause to issue the search warrant, and holds
that the dog sniff invalidated the search warrant. First, it states, “Officer Arthur
did not purport to specify that from his position outside of the ‘location,’ he
actually identified the marijuana smell to be coming from the upstairs apartment,
as opposed to another location such as the ground-floor purveyors of vegan food.
9 Instead, the officer identified his own location and stated that he smelled marijuana
‘from the outside of this location.’ . . . Based on lawfully obtained information
within the four corners of the original affidavit, the marijuana odor detected by the
officer could have emanated from anywhere near the surveilled location, including
the first-floor businesses or a neighboring house.” Slip Op. at 12. It then
concludes that “Officer Arthur’s statement concerning the odor, standing alone,
does not support a determination of probable cause because it was not tied to the
specific, particular place to be searched.” Slip Op. at 12–13 (citing McLain, 337
S.W.3d at 272 (holding that probable cause exists when “there is a fair probability
that contraband or evidence of a crime will be found at the specified location”) and
Davis, 202 S.W.3d at 156 (holding that affidavit supported probable cause because
police officer specified particular house from which he smelled odor of
methamphetamine manufacturing)).
In holding that the probable cause affidavit in this case did not meet the
particular place requirement for obtaining a warrant, the majority cites several
cases from various federal circuits holding that when a search involves a building
with multiple units, the warrant must specify the precise unit that is to be searched.
See, e.g., United States v. Perez, 484 F.3d 735, 741 (5th Cir. 2007). The probable
cause affidavit in this case specified the target of the search: “the separate 2nd
floor area of the duplex located at 412 West Clay . . . .” Thus, the affidavit
10 identified the precise unit to be searched. See id. The majority cites no authority
for its conclusion that smelling contraband from outside a multi-unit building, in
conjunction with a tip that illegal activity was occurring at a particular unit and
observations of actions of the resident that appeared to an experienced narcotics
officer to be consistent with narcotics activity, does not provide probable cause to
search the specified unit in that building and that more precise information about
the specific location from which the odor is emanating is necessary to establish
probable cause. See Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim. App. 2006)
(“The odor of contraband is certainly an important fact which may (or may not) be
dispositive, given a specific context, in assessing whether probable cause exists.”).
The majority then dismisses McClintock’s unusual comings and goings well
after business hours on the ground that this activity, on its face, “apparently
innocent” and “is equally consistent with other ‘possible . . . activity’ that happens
during the night at times ‘before and after . . . business hours . . . .’” Slip Op. at
13–14. This conclusion dismisses the affiant’s experience and knowledge of
suspicious narcotics-related activity and reevaluates the evidence on appeal. The
majority thus disregards the trial court’s findings that the warrant was supported by
probable cause.
I agree with the majority that the dog sniff must be disregarded as grounds
for establishing probable cause, but I disagree with its conclusion that the untainted
11 information in the affidavit did not establish probable cause to search
McClintock’s apartment.
The majority holds that the landing in front of McClintock’s apartment,
which “led only and directly to McClintock’s door,” was part of the apartment’s
curtilage and was not part of a public or common area. Slip Op. at 7. Thus, when
the police used a trained dog to sniff at the apartment’s door from the landing,
“they intruded upon his home and conducted a search within the meaning of the
Fourth Amendment.” Slip Op. at 7–8 (citing Florida v. Jardines, 133 S. Ct. 1409,
1417–18 (2013)). This “search from within McClintock’s curtilage was
presumptively unreasonable . . . .” Slip Op. at 8.
I agree with the majority that, under Florida v. Jardines, the outside landing
on which Sita alerted to a controlled substance was part of the curtilage of
McClintock’s apartment. 133 S. Ct. at 1415. I also agree that, under Jardines,
“[t]he government’s use of trained police dogs to investigate the home and its
immediate surroundings is a ‘search’ within the meaning of the Fourth
Amendment.” Id. at 1417–18.
It is important, however, to distinguish “independently acquired and lawful
information” from unlawfully obtained information. See Bridges, 977 S.W.2d at
632. As both the five-person majority in Jardines and the three-person
concurrence drawn from that majority make clear, “The police
12 officers . . . conducted a search because they used a ‘device . . . not in general
public use’ (a trained drug-detection dog) to ‘explore details of the home’ (the
presence of certain substances) that they would not otherwise have discovered
without entering the premises.” 133 S. Ct. at 1419 (Kagan, J., concurring) (quoting
Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046 (2001)). Justice
Kagan, making the privacy argument (as opposed to the premises argument) that
the majority in Jardines declined to make, emphasized that the trained forensic dog
was a “‘sense-enhancing’ tool,” “not ‘in general public use’,” and, for that specific
reason, could not be used by the police “to examine a home without a warrant or
exigent circumstance.” Id. at 1419–20 (quoting Kyllo, 533 U.S. at 34, 36, 121 S.
Ct. at 2043). The concurrence expressly distinguished the use of such a “sense-
enhancing tool,” stating, “If officers can smell drugs coming from a house, they
can use that information; a human sniff is not a search, we can all agree.” Id. at
1419 n.2 (citing Kyllo, 533 U.S. at 35 n.2, 121 S. Ct. at 2043 n.2, as drawing same
distinction). This “bright line” rule invalidated the warrantless search by Sita; but
it did not invalidate Officer Arthur’s smelling marijuana coming from the building
“from outside the location.” Under the same bright line rule, this human sniff was
not a search. See id.
Texas law conforms to the distinction set out in the Jardines concurrence
and in Kyllo between the use of a sense-enhancing search device (here, as in
13 Jardines, a trained forensic narcotics canine) to search a location and the use of the
ordinary sense of smell of a trained police officer to establish probable cause to
obtain a warrant to search the location for contraband. “If an affiant seeking a
search warrant attests to the presence of an odor and a magistrate finds the affiant
qualified to recognize the odor, this information is considered persuasive in
obtaining a warrant.” Davis, 202 S.W.3d at 156; see also Johnson v. United States,
333 U.S. 10, 13, 68 S. Ct. 367, 369 (1948) (holding qualified officer’s smell of
contraband is often “evidence of most persuasive character.”). Generally, when a
police officer smells marijuana in a location, he has probable cause to search that
location. See United States v. Ibarra-Sanchez, 203 F.3d 356, 357 (5th Cir. 2000)
(once police smelled marijuana in van, they had probable cause to search it); 2
WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 3.6(b) (4th ed. 2004). The police officer does not have to set forth
in the probable cause affidavit specific qualifications or training for detecting the
odor—as long as the magistrate could have reasonably inferred that the officer had
past experience with the odor by virtue of his position as a peace officer, that
inference is sufficient to show that the officer was qualified to recognize the odor.
See Davis, 202 S.W.3d at 156–57.
Davis illustrates a circumstance in which a police officer’s smell of narcotics
properly allowed a magistrate to determine that probable cause existed, even when
14 other information in a “far from exemplary” supporting affidavit was insufficient
to support probable cause when taken by itself. 202 S.W.3d at 155–57. In Davis, a
police officer smelled “a strong chemical odor he has associated with the
manufacture of methamphetamine” coming from the defendant’s residence when
the officer drove by. Id. at 152. The affidavit also contained information that the
investigating officers “received information” from unspecified confidential
informants and Crime Stoppers tips that the defendant was making
methamphetamine at the residence. Id. While holding that the latter information
was insufficient by itself to support issuance of a warrant, the Court of Criminal
Appeals held that the fact that the officer smelled the odor of methamphetamine
authorized the magistrate to issue the warrant. Id. at 156. The officer who smelled
the odor was qualified by virtue of the assertion in the affidavit that he was a patrol
officer in the locality in question. Id. The other background information, although
unable to support issuance of a warrant by itself, then supported the critical
assertion that the officer had smelled methamphetamine production. Id. at 157.
Altogether, the affidavit contained sufficient information within its four corners to
support the magistrate’s probable cause determination. Id. at 158.
Likewise, the warrant in this case could have been issued based on the
information in the affidavit that Officer Arthur, a trained and experienced narcotics
officer, smelled marijuana from outside the residence and that he and the other
15 investigating officers observed behavior consistent with narcotics activity during
the surveillance of 412 West Clay following a tip that marijuana was being grown
inside the second floor of the premises. Therefore, disregarding the information
related to the dog sniff, the remaining statements in the affidavit clearly supported
the issuance of the warrant. See Brackens, 312 S.W.3d at 838. Moreover, because
the dog sniff information was clearly unnecessary to establish probable cause,
McClintock could not have been harmed by the inclusion in the affidavit of the
information that the dog alerted outside his apartment door at the top of the
exterior staircase. See Pitonyak v. State, 253 S.W.3d 834, 848 (Tex. App.—Austin
2008, pet. ref’d) (holding that if tainted information is clearly unnecessary to
establish probable cause, defendant could not have been harmed by inclusion of
tainted information). Accordingly, I would hold that it was not an abuse of
discretion by the trial court to deny McClintock’s motion to suppress and to hold
that the probable cause affidavit was valid.
16 Conclusion
For the foregoing reasons, I would affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
Publish. TEX. R. APP. P. 47.2(b).