Le, Cuong Phu

• Court: Court of Criminal Appeals of Texas
• Decided: April 29, 2015
• Docket: PD-0605-14
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0605-14

THE STATE OF TEXAS

v.

CUONG PHU LE, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

M EYERS, J., filed a dissenting opinion.

DISSENTING OPINION

The majority reverses the trial court and the court of appeals and concludes that

probable cause exists for the search warrant in this case despite the fact that the drug-sniffing

dog’s alert could not be considered under Florida v. Jardines, 133 S.Ct. 1409 (2013).

However, I believe that the majority has stretched its reasoning in order to have the desired

outcome for the State here. In the absence of the dog-sniff evidence, probable cause for a

search warrant was not established. Le dissent - Page 2

The evidence presented in the affidavit for the search warrant–minus the dog

sniff–included the report from the concerned citizen, an officer’s observation that the blinds

were tightly drawn, the fact that the utilities were registered to Appellee, the fact that

Appellee’s drivers license bore a different home address, an officer’s observation of the

smell of marijuana outside the home two weeks prior, an officer’s observation that the air

conditioning was running when it was 38 degrees outside, and an officer’s observation of the

smell of marijuana from Appellee’s vehicle when stopped for traffic violations. I do not

believe that these facts establish probable cause, and it insults our intelligence for the State

to argue that the magistrate approved this warrant based on anything other than the dog sniff.

If this evidence were sufficient to establish the probable cause for the warrant, then why

would the officers have waited to perform the traffic stop and conduct the dog sniff before

requesting the warrant?

This case is similar to Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013),

in which the court was also faced with a search warrant that was obviously based on illegal

probable cause.1 However, rather than stop themselves from repeating the same mistake, the

court has again come back and validated a warrant that was originally based on facts–here,

the dog sniff–that are not valid to constitute probable cause under our law. When one

disregards the dog sniff, the remaining evidence in this case does not establish probable

1 In Wehrenberg, officers made an unlawful and unwarranted entry into a home, conducted a sweep, and only then secured a search warrant. The State argued that the probable cause for the warrant was based on a confidential informant, when in reality it was based upon the officers’ illegal entry into the home. Le dissent - Page 3

cause, and it was certainly not an abuse of discretion for the trial judge to conclude

otherwise. For these reasons, I would uphold the ruling of the court of appeals and I

respectfully dissent.

Meyers, J.

Filed: April 29, 2015

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