PD-0013-15 PD-0013-15 & PD-0015-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/31/2014 4:19:30 PM Accepted 1/12/2015 2:02:27 PM JANUARY 12, 2015 ABEL ACOSTA CLERK NO. 13-13-00665-CR
TO THE COURT OF CRIMINAL APPEALS
OF TEXAS
THE STATE OF TEXAS Appellant,
v.
MICHAEL ERIC RENDON Appellee.
Appeal from Victoria County
_____________________________________
STATE’S PETITION FOR DISCRETIONARY REVIEW _____________________________________
STEPHEN B. TYLER Criminal District Attorney Victoria County, Texas Bar I.D. No. 24008186
BRENDAN W. GUY Assistant Criminal District Attorney Victoria County, Texas Bar I.D. No. 24034895 205 N. Bridge St. Ste. 301, Victoria, Texas 77901-6576 (361) 575-0468 (Telephone) (361) 570-1041 (Fax) Table of Contents
Table of Contents.................................................................................... 2-3
Index of Authorities ............................................................................... 4-6
Statement Regarding Oral Argument ..................................................... 7
Statement of the Case............................................................................. 7-8
Statement of Procedural History ............................................................. 8
Statement of Facts ................................................................................ 8-11
Ground for Review .................................................................................. 11
I. The Court of Appeals finding that the area outside of Appellee’s apartment constituted the curtilage of that apartment incorrectly decided an important question of State and Federal law that has not been but should be settled by the Court of Criminal Appeals ............................. 11
Argument and Authorities ................................................................ 11-19
I. The Court of Appeals committed reversible error by applying the wrong legal standard for determining whether or not the area outside of Appellee’s apartment constituted an area of curtilage .............................................. 11-20
Prayer ....................................................................................................... 21
Signature .................................................................................................. 21
Certificate of Compliance....................................................................... 22
Certificate of Service............................................................................... 23
Appendix ...................................................................................... A-1-A-13 Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 2 I. Appendix Table of Contents ................................................... A-1
II. Dec. 4, 2014 Judgment in Cause Number 13-13-00665-CR, State of Texas v Michael Eric Rendon................................... A-2
III. Dec. 4, 2014 Memorandum Opinion in Cause Number 13-13-00665-CR State of Texas v Michael Eric Rendon........................ A-3 –A-13
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 3 Index of Authorities
United States Supreme Court Cases
Florida v. Jardines, 133 S.Ct. 1409 (2013) ............. 11, 15, A-6, A-8-A-11, ............................................................................................................... A-13
Illinois v. Cabales, 543 U.S. 405 (2005) .................................................. 11
Oliver v. United States, 466 U.S. 170 (1984) .......................................... A-9
Silverman v. United States, 365 U.S. 505 (1961) ................................ A-9
United States v Dunn, 480 U.S. 294 (1987) .................................. 12, 19-20
United States v. Jones, 132 S.Ct. 945 (2012) ...................................... A-8
Federal Court of Appeals Cases
United States v. Cruz Pagan, 537 F. 2d 554 (1st Cir. 1976) .................... 17
Texas Cases
Amador v. State, 221 S.W. 3d 666 (Tex. Crim. App. 2007) ................ A-7
Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App. 1991) ................. A-11
Evans v. State, 995 S.W. 2d 284 (Tex. App. –Houston (14th Dist.) 1999, pet. ref’d) ....... 12, 16, A-10-A-11
Guzman v. State, 955 S.W. 2d 85 (Tex. Crim. App. 1997) ................ A-7
McClintock v. State, No. PD-0925-13 (Tex. Crim. App. 2014) ......... A-11
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 4 Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007) ....... A-8, A-12
State v. McLain, 337 S.W. 3d 268 (Tex. Crim. App. 2011)...... A-7-A-8, ............................................................................................................... A-12
State v. Rendon, No. 13-13-00665-CR (Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed) .................... 8, 13-14, ....................................................................................................... A-2-A-13
State v. Rendon, No. 13-13-00666-CR (Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed) ...............8, A-3-A-13
State v. Robinson, 334 S.W. 3d 776 (Tex. Crim. App. 2011).............. A-7
State v. Weaver, 349 S.W. 3d 521 (Tex. Crim. App. 2011) ..................... 12
Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005) ................... A-11
Other States Cases
Commonwealth v. Thomas, 358 Mass. 771, 267 N.E. 2d 489 (1971) ............................................................................ 17
Jardines v. State, 73 So. 3d 34 (Fla. 2011) ............................................ A-9
State v. Nguyen, 2013 ND 252, 841 N.W. 2d 676 (N.D. 2013) .......... 16-17
United States Constitution
U.S. CONST. amend. IV .................................................. 11, 18, A-5-A-11
U.S. CONST. amend. XIV .................................................................... A-5
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 5 Texas Constitution
TEX. CONST. art I, §§ 9 ............................................................ A-5, A-11
TEX. CONST. art I, §§ 10 .................................................................... A-5
TEX. CONST. art I, §§ 19 .................................................................... A-5
Texas Statutes
TEX. CODE CRIM. PROC. ANN. art 44.01 (West 2014) ................ A-6
TEX. HEALTH & SAFETY CODE § 481.121 (West 2010) .............. A-5
TEX. PENAL CODE §34.02 (West 2011) ........................................... A-5
Texas Rules
TEX. R. APP. 9.4 ..................................................................................... 22
TEX. R. APP. 47.1 ................................................................................. A-6
TEX. R. APP. 47.2 ............................................................................... A-13
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 6 No. 13-13-00665-CR
OF THE STATE OF TEXAS
THE STATE OF TEXAS, ............................................................................... Appellant
MICHAEL ERIC RENDON, ......................................................................... Appellee
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through its Criminal District Attorney
for Victoria County, and respectfully urges this Court to grant discretionary review
of the above named cause, pursuant to the rules of appellate procedure.
Statement Regarding Oral Arguement
Oral argument is waived.
Statement of the Case
Appellee was charged by indictment on August 2, 2012 in Cause Number
12-8-26805-D with one count of possession of marihuana in an amount of five
pounds or less but more than four ounces. [CR-I-1]. On September 13, 2012 the Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 7 Appellee filed a motion to suppress. [CR-I-2-4]. On June 14, 2013, the Appellee
filed two addition motions to suppress. [CR-I-6-13]. A hearing was held on those
motions to suppress on October 30, 2013. [RR-II-1]. On November 26, 2013, the
trial court, with the Honorable Robert Cheshire presiding, granted the defense
motion to suppress and submitted written findings of fact and conclusions of law
explaining his ruling. [CR-I-14]. The State timely filed its notice of appeal on
December 3, 2013. [CR-I-23-26]. On December 4, 2014, the Thirteenth Court of
Appeals (hereafter Court of Appeals) affirmed the trial court ruling granting the
motion to suppress. State v. Rendon, No. 13-13-00665-CR & 13-13-00666-CR
(Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed). The Court of Appeals
concluded that the narcotics dog sniff in this case occurred from within the
curtilage of Appellee’s apartment and was therefore an unreasonable search. Id. at
7-9.
Statement of Procedural History
On December 4, 2014, the Thirteenth Court of Appeals upheld the trial
court’s suppression of evidence. Rendon, 13-13-00665 at 11. No motion for
rehearing was filed. The State’s petition is due January 3, 2015.
Statement of Facts
The State’s first witness at the suppression hearing was Detective Jason
Stover of the Victoria Police Department. [RR-II-7]. Detective Stover established Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 8 that he was a trained canine operator, and that his canine was properly certified as a
drug detection dog. [RR-II-8-14, State’s Exhibit 1]. Detective Stover then stated
that he was tasked with investigating Appellee and confirmed that he did obtain a
search warrant to enter Appellee’s residence as part of that investigation. [RR-II-
15; State’s Exhibit 2.] The search warrant was subsequently admitted into
evidence. [RR-II-21].
Detective Stover further testified as to how on May 8, 2012, he went to
Appellee’s residence, an apartment located at 901 Bingham, Apartment C, in
Victoria, Texas, as part of a drug investigation and how his canine, Baco, alerted on
the exterior of the door to the apartment. [RR-II-16-17].
Detective Stover then elaborated about the layout of the apartment complex,
explaining how it is a “four-plex”, with two apartments on the bottom, two on the
top, and the top having a common stair case that splits off into a balcony to the left
and the right. [RR-II-18]. He also described how the apartment had no gates, or
patios, that the stairway was open, that the doors to the apartment grounds were
open to the public, and that there were no “no trespassing” signs present on the
complex grounds. [RR-II-18].
Detective Stover went on to describe how, after the investigating officers
were denied consent to search Appellee’s apartment, he left the grounds to obtain a
search warrant which they subsequently executed. [RR-II-20]. Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 9 On cross-examination, Detective Stover agreed there were items of personal
property on the balcony area in front of the apartments on the second floor. [RR-
II-33].
At the conclusion of the State’s case, Appellee called one of his neighbors, a
Mr. John Crook, as a witness. [RR-II-58]. On cross-examination, Mr. Crook noted
that he had the authority to order people off of the apartment, because he works for
the manager. [RR-II-73]. He also indicated in regards to people walking up the
landings in the apartments that “it’s a free world.” [RR-II-73]. Then on re-cross,
when asked by Appellee if he could keep people from coming to his door, Mr.
Crook only indicated that he could keep people from coming into his home. [RR-
II-75].
No evidence was presented during the hearing that Appellee had any sort of
special authority over the area outside his apartment or that he could exclude other
people from that area. [RR-II].
At the conclusion of the suppression hearing, the trial court ruled that while
the stairway leading up to the second floor was a common area, the court believed
that since Appellee’s apartment was the only apartment on the left side of the
stairway that the area from the stairway to the apartment was part of Appellee’s
apartment’s curtilage. [RR-II-81]. The court further held that that would
invalidate the open air sniff of the apartment and without the evidence obtained as Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 10 a result of that sniff, the search warrant issued against the apartment could not
stand. [RR-II-81-82].
On November 26, 2013, the trial court issued a written order granting
Appellee’s motion to suppress along with written findings of fact consistent with
the verbal findings it made at the suppression hearing. [CR-I-13].
Ground for Review
I. The Court of Appeals finding that the area outside of Appellee’s apartment constituted the curtilage of that apartment incorrectly decided an important question of State and Federal law that has not been but should be settled by the Court of Criminal Appeals.
Argument and Authorities
I. The Court of Appeals committed reversible error by applying the wrong legal standard for determining whether or not the area outside of Appellee’s apartment constituted an area of curtilage.
The United States Supreme Court has established that having a drug
detection dog do an open air sniff within the curtilage of a house is search for
Fourth Amendment purposes. See Florida v. Jardines, 133 S.Ct. 1409, 1417-1418
(2013). However, the Supreme Court has also established that when drug detection
dogs perform open air sniffs in non-constitutionally protected areas it does not
implicate the Fourth Amendment. See Illinois v. Cabales, 543 U.S. 405, 409
(2005)(holding that an open air sniff on an automobile as part of a lawful traffic
stop does not implicate the Fourth Amendment.) The same holds true under Texas
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 11 law as this Honorable Court has also recognized that a canine sniff is not a search
so long as the officer conducted the sniff from a place they had the right to be. See
State v. Weaver, 349 S.W. 3d 521, 528-529 (Tex. Crim. App. 2011). Accordingly,
the legality of the open air sniff of Appellee’s apartment turns entirely on the legal
question of whether Detective Stover and Baco were in a curtilage area when they
conducted the open air sniff. If they were then the sniff was unreasonable, if not it
was lawful and thus the information obtained from that action could be used to
support obtaining a search warrant for Appellee’s apartment.
The United States Supreme Court has provided guidance in determining
when a location is a curtilage area. The test is “whether the area harbors the
intimate activity associated with the sanctity of a man’s home and the privacies of
life.” United States v Dunn, 480 U.S. 294, 300 (1987). Common areas of an
apartment are therefore not part of the curtilage. See Evans v. State, 995 S.W. 2d
284, 286 (Tex. App. –Houston (14th Dist.) 1999, pet. ref’d).
Based upon the Supreme Court’s definition of curtilage it is clear that any
analysis of if a location is part of a common area of an apartment or is a curtilage
area must include a determination of if a party has the power to exclude others
from that area. Such a finding is necessary because a party can hardly be said to
have a safe harbor for the “privacies of life” in a location where outsiders can
lawfully walk right up to them to observe what they are doing there. A party must Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 12 have the power to exclude outsiders from an area to be safe to enjoy the privacies
of life there and as such a location where a person does not have the power to
exclude others can never be a curtilage area. Therefore any analysis of whether a
location is part of a curtilage area of an apartment must include a threshold
determination of whether the person trying to claim that area as curtilage has the
power to exclude others from the area.
The Court of Appeals ruling was fatally flawed because it failed to address
the key determining factor of whether Appellee had the power to exclude others
from the passageway outside his apartment. The Court of Appeals instead relied
upon the fact that Appellee’s apartment was the only apartment on the upper-left
side of the building and on the fact that other apartment residents at this complex
placed objects such as plants or chairs in the area outside of their apartments to
establish the disputed area as a curtilage area. Rendon, 13-13-00665 at 8. Neither
of those factors are relevant though in determining what constitutes a curtilage area
and thus they should not have been considered by the Court of Appeals.
Curtilage is not established merely by having the right to store or abandon
property in an area. An apartment might allow you to grow flowers in a common
area, but that does not mean you can tell others they cannot come along and smell
the flowers. The area itself remains common to all people lawfully on the
apartment grounds regardless of whether some of your possessions are located in Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 13 that area. Nor is curtilage established simply by being the only domicile near a
location. The test is not how many neighbors you have, rather it is do you have the
right to keep others from entering that area. If you do not have the power to
exclude others from entering the area than it does not matter that you are the only
apartment located along that passageway. You still do not have a zone of privacy
in that location because the location can lawfully be intruded into by others at any
time for any reason. It is only the power of exclusion that truly establishes that an
area “harbors the intimate activity associated with the sanctity of a man’s home and
the privacies of life.” Therefore any analysis of whether an area is in the curtilage
or not should first establish whether the claimant has power of exclusion over that
area. If they do not have such authority then that location is not part of that
curtilage. By failing to consider that threshold question, the Court of Appeals
analysis was fatally flawed and must be reversed.
The Court of Appeals analogized the passageway leading to Appellee’s
apartment with the front-porch of a free standing home. Rendon, 13-13-00665 at
8. This analogy was flawed because with a porch on a free-standing home the
home owner has total legal authority to tell intruders to get off his porch. The
porch is on his property, under his control, and thus he has the same power of
exclusion over the porch that he has over his living room. As such since the home
owner has control over who has access to the porch, it is perfectly reasonable for it Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 14 to be included within the curtilage of his home.
By contrast the apartment dweller does not have comparable authority to tell
intruders to depart the passageway even when it is outside his own apartment.
Regardless of how close it runs to his apartment the passageway is still a common
area of the apartment as open to the public as any other common areas of the
apartment, and thus the apartment dweller has no more authority to tell others to
leave the passageway than he does to tell others to leave the apartment laundry
room. One of the trade offs of living as a renter in an apartment complex is that
you generally lack the power to legally exclude that a home owner possesses and
thus you cannot claim the same level of privacy interest in the approaches to an
apartment that a home owner can claim in the approaches to their home.
Justice Scalia in the Jardines case cited the example of a person with a metal
detector coming on to your property as being the type of intrusion that is outside of
what is socially acceptable. Jardines, 133 S.Ct. at 1416. That example can also be
used to highlight the critical difference between a home dweller and an apartment
dweller in determining the presence of curtilage. A home dweller if confronted by
such an errant treasure hunter would be well within their rights to order the person
off their property and to have the intruder arrested for criminal trespass if they did
not then depart. An apartment dweller though would not generally have that same
authority. So long as our hypothetical metal detector wielder (or more likely a Girl Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 15 Scout attempting to sell cookies) was otherwise on the apartment grounds legally,
and the apartment did not otherwise have rules restricting which common areas
guests could enter, then the treasure hunter would have the exact same right to
stand outside an apartment door as the apartment dweller them self has. The
apartment dweller could certainly ask them to leave and could perhaps call the
apartment manager and ask for them to order the person away from their door, but
the apartment dweller has no authority themselves to order the person away or to
swear out a criminal trespass complaint against the treasure hunter because the
apartment dweller does not have control of the area of the apartment beyond their
front door. That area is the common area where everyone who is on the apartment
grounds legally has equal right to be, and thus cannot be considered part of the
curtilage of any apartment dweller’s apartment. Allowing people to claim curtilage
rights over areas where they do not even have authority over who is allowed to
enter would be to dangerously expand the curtilage doctrine and would effective
eviscerate the Evans principle that the curtilage does not include common areas of
apartment complexes.
It must also be noted that other state jurisdictions have already concluded
that exclusive control is essential for establishing the existence of a curtilage zone.
The Supreme Court of North Dakota noted that “the curtilage of an apartment
house does not extend beyond the resident’s own apartment and any separate areas Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 16 subject to his exclusive control.” State v. Nguyen, 2013 ND 252, 841 N.W. 2d 676,
682 (N.D. 2013)(emphasis added). The Supreme Judicial Court of Massachusetts
held the same and also noted that merely because a tenant has a right to use a
common area does not give him a right of privacy in that common area because the
tenant does not have exclusive control over the common area. See Commonwealth
v. Thomas, 358 Mass. 771, 267 N.E. 2d 489, 491 (1971). Furthermore at least one
Federal circuit court has also cited a requirement of exclusive control to establish a
curtilage zone. See United States v. Cruz Pagan, 537 F. 2d 554, 558 (1st Cir. 1976).
That is a logical requirement, and Texas should now join with those other
jurisdictions in establishing a similar requirement for exclusive control (i.e. the
ability to legally exclude others from entering or remaining in the area) as a
threshold requirement for establishing a curtilage zone in apartment complexes.
Now obviously there could be situations where an apartment granted control
over the passageways to their residents and gave them the authority to exclude
others, and if that was done then such an area would constitute the curtilage of that
apartment, and it would convey the same protections to its residents that the
curtilage area of a house provides to the home owner. However, there is no
evidence in the present case that Appellee had any such grant of authority over the
area outside his apartment. Quite the contrary: the evidence presented at the
hearing established that the apartment dwellers in Appellee’s complex did not have Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 17 any legal authority to exclude others from the grounds other than from their own
apartments. Witness Donald Crook, who testified about life at Appellee’s
apartment complex, specifically noted that he had the power to order people off of
the grounds because he worked for the manager. [RR-II-73]. Thus Mr. Crook
made it clear that the authority to exclude unwanted people from the apartment
grounds stemmed not from being a tenant at the complex but solely as an exercise
of authority as an employee of the apartment complex. Likewise when asked by
Appellee if he could keep people from coming to his apartment’s door, Mr. Crook
instead indicated that his authority was only to keep them from coming into his
actual apartment. [RR-II-75]. Thus from Appellee’s own witness it was clear there
was no authority for tenants at this complex to exclude people from the
passageways leading up to their apartments. The tenant’s authority of exclusion
only covered keeping unwanted visitors from entering into their actual apartments
and did not extend beyond that into the areas near but outside of their apartments.
Thus since the apartment residents lack any control over the space beyond their
apartment, that space must be part of the common area, which means it cannot be
considered a curtilage area.
Therefore Detective Stover and Baco were not in a curtilage zone when they
conducted their open air sniff, and as such the sniff did not implicate Appellee’s
Fourth Amendment rights. The investigating officer and his canine partner were Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 18 standing in a common area where they had the exact same right to be as Appellee
himself, and thus the evidence they obtained from that location was legally
obtained, and thus formed a proper basis for supporting the search warrant in this
case. The Court of Appeals’s decision to the contrary was based upon applying an
improper analysis for determining what constitutes a curtilage area since their
analysis failed to properly consider the critical factor of whether the claimant had
the authority to exclude others from the area.
This petition should therefore be granted, so the Court of Criminal Appeals
can definitively establish the proper factors to be considered by lower courts in
evaluating whether a location is part of a curtilage area or not. Guidance on this
point will decide an important question of state and federal law that has not been
but should be settled by the Court of Criminal Appeals. Furthermore, a definite
standard on what factors to consider in determining the curtilage area of apartment
complexes will give invaluable guidance to law enforcement agents on when they
can and cannot legally conduct open air canine sniffs on apartment grounds for
future cases which will help guarantee greater efficiency in future law enforcement
operations and reduced litigation in the court system. As such it will serve the
interests of justice for this petition to be granted. And since the curtilage definition
provided by the Supreme Court in the Dunn case logically requires that a party
have the power to exclude others from an area in order for that area to be Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 19 considered curtilage, the State would ask this Honorable Court to definitively
establish what is already implicitly required by Dunn: that any finding of curtilage
on apartment complex grounds must first include a determination that the
apartment owner had the legal authority to exclude others from the area claimed to
be curtilage. The power to exclude from an area is logically necessary for that area
to meet the definition of curtilage established by the United States Supreme Court,
and by failing to apply that requirement in this case the Court of Appeals ruling
was clearly in error and must be reversed.
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 20 PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court grant this Petition for Discretionary Review and reverse the
decision of the Court of Appeals.
Respectfully submitted,
STEPHEN B. TYLER CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 Telephone: (361) 575-0468 Facsimile: 361 (576)-4139
ATTORNEYS FOR THE APPELLANT, THE STATE OF TEXAS
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 21 CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in Appellant’s Petition for Discretionary Review
submitted on December 31, 2014, excluding those matters listed in Rule 9.4(i)(3) is
3,012.
/s/ Brendan W. Guy BRENDAN W. GUY Assistant Criminal District Attorney SBN 24034895 205 N. Bridge St., Suite. 301 Victoria, TX 77901 Telephone: (361) 575-0468 Facsimile: 361 (576)-4139
ATTORNEY FOR APPELLANT, THE STATE OF TEXAS
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 22 CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant’s Petition for Discretionary
Review has been served on Edward Bartolomei, Attorneys for Appellee, and on Lisa
McMinn, State Prosecuting Attorney, by depositing same in the United States Mail,
postage prepaid on the day of December 31, 2014.
/s/ Brendan W. Guy BRENDAN W. GUY Assistant Criminal District Attorney SBN 24034895 205 N. Bridge St., Suite. 301 Victoria, TX 77901 Telephone: (361) 575-0468 Facsimile: 361 (576)-4139
Appellant’s Petition for Discretionary Review Victoria County Criminal District Attorney No. 13-13-00665-CR 23 APPENDIX
Table of Contents
Dec. 4, 2014 Judgment in Cause Number 13-13-00665-CR, State of Texas v Michael Eric Rendon ...................................................A-2
Dec. 4, 2014 Memorandum Opinion in Cause Number 13-13-00665-CR State of Texas v Michael Eric Rendon ......................................... A-3-A-13
A-1 THE THIRTEENTH COURT OF APPEALS
13-13-00665-CR
THE STATE OF TEXAS v. MICHAEL ERIC RENDON
On Appeal from the 377th District Court of Victoria County, Texas Trial Cause No. 12-8-26805-D
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
December 4, 2014
A-2 NUMBERS 13-13-00665-CR & 13-13-00666-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
MICHAEL ERIC RENDON, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
OPINION Before Justices Rodriguez, Garza, and Benavides Opinion by Justice Benavides
By four issues, which we consolidate into one, the State of Texas appeals the trial
court’s orders granting appellee Michael Eric Rendon’s motions to suppress.1 We
affirm.
1 These cases have been consolidated for the purposes of this opinion on appeal.
A-3 I. BACKGROUND
On May 8, 2012, Victoria, Texas police officers conducted a drug investigation at
an apartment complex located on Bingham Street following a confidential informant’s tip.
The police’s target suspect was Rendon, who was a resident of the apartment complex.
Victoria Police Detective Jason Stover and his police-trained dog, Baco, assisted other
officers in the investigation.
Detective Stover testified that Baco initially conducted a warrantless “open-air
sniff” of the exterior of Rendon’s parked vehicle, which was located in the apartment
complex’s parking lot. Following the sniff, Baco exhibited a “positive alert to the
presence of narcotics.” At that point, other Victoria police officers approached
Rendon’s apartment, but Rendon exited his apartment and greeted the officers before
they were able to knock on his apartment door.2
The other officers spoke to Rendon outside of his apartment, and the officers later
advised Detective Stover “by radio” to approach Rendon’s residence with Baco.
Detective Stover and Baco arrived at Rendon’s apartment door, and Baco again
conducted a warrantless sniff of the apartment’s door and “alerted [Detective Stover] to
the odor of illegal narcotics.” After the positive alert, Detective Stover returned Baco to
his police unit and joined the other officers outside of Rendon’s apartment. Police
officers then requested Rendon’s consent to search his apartment, but Rendon declined.
Detective Stover testified that because Rendon declined consent to search his
2 The record establishes that the rectangular building holds four separate apartment units over two floors. The first two units are located on the ground floor, and the remaining two units are located on the second floor. A straight continuous staircase leads visitors and residents to the second floor. At the stairway’s landing, the path splits left and right. Each second-floor apartment has a patio area immediately in front of its doorway. Rendon’s apartment was located on the left side of the second floor.
A- 4 apartment, he applied for a search warrant of Rendon’s apartment and vehicle. In his
search warrant application affidavit, Detective Stover noted Baco’s “positive” alerts to the
odor of narcotics from the “open-air sniff” outside of Rendon’s vehicle, as well as after
sniffing the “bottom left portion” of Rendon’s apartment door. Detective Stover’s
application for the search warrant was granted by a magistrate and executed the same
day.
The record is unclear as to what exactly was seized from Rendon’s vehicle or
apartment following the execution of the search warrant. However, in appellate cause
number 13-13-00665-CR, a Victoria County grand jury indicted Rendon for possession
of marijuana in an amount of five pounds or less but more than four ounces, a state jail
felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through 2013
3d C.S.). In appellate cause number 13-13-00666-CR, the same grand jury indicted
Rendon for money laundering, a state jail felony. See TEX. PENAL CODE ANN. §
34.02(e)(1) (West, Westlaw through 2013 3d C.S.).
After his arrest, Rendon was charged with possession of marijuana and money
laundering and filed a motion to suppress in each respective case. Rendon sought to
suppress, in relevant part, any and all evidence that was seized by the Victoria Police
Department pursuant to the execution of Detective Stover’s search warrant. Rendon
attacked the warrant on Fourth and Fourteenth Amendment grounds, see U.S. CONST.
amends IV, XIV, as well as under Article I, Sections 9, 10, and 19 of the Texas
Constitution. See TEX. CONST. art. I, §§ 9, 10, 19. Specifically, Rendon asserted that
Detective Stover’s affidavit lacked probable cause to support the search and arrest. At
the consolidated suppression hearing, Rendon’s counsel argued that Baco’s sniff of
A- 5 Rendon’s apartment door was an unconstitutional search under the Fourth Amendment,
and thus, insufficient probable cause supported the warrant. The trial court agreed and
granted Rendon’s motions.
In its identical orders granting Rendon’s motions to suppress, the trial court issued
findings of fact and conclusions of law and found that Baco searched the “curtilage” of
Rendon’s apartment and that such a search was illegal under the Fourth Amendment,
citing Florida v. Jardines, 133 S.Ct. 1409, 1417–18 (2013). The trial court further
concluded that after excluding the tainted search from Detective Stover’s affidavit, the
remaining information did not establish probable cause to issue a warrant to search
Rendon’s apartment. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art.
44.01(a)(5).
II. MOTION TO SUPPRESS
By one consolidated issue, the State asserts that the trial court erred by granting
Rendon’s motions to suppress.3
A. Standard of Review
We review a trial court’s ruling on a motion to suppress by using a bifurcated
standard of review, where we give almost total deference to the historical facts found by
3 The State presented four issues for our review. For brevity, we will address each of the four issues under one analysis. See TEX. R. APP. P. 47.1. The State’s original four issues were stated as follows:
(1) Is the standard of review in this case de novo?
(2) Is the passageway leading up to an apartment part of the common area of the apartment or part of the curtilage of the apartment?
(3) Did the trial court commit reversible error by finding that [Rendon] had met his burden to show that the search warrant against him was invalid?
(4) Did the State procedurally default by not asserting that the passageway from the stairway to [Rendon’s] apartment was not part of the curtilage at the trial level?
A-6 the trial court and review de novo the trial court’s application of the law to those facts.
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford the same amount of deference to
trial courts' rulings on application of law to fact questions, also known as “mixed
questions of law and fact, if the resolution of those ultimate questions turns on an
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).
A defendant who alleges a violation of the Fourth Amendment has the burden of
producing evidence that rebuts the presumption of proper police conduct. State v.
Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). He may carry this burden by
establishing that the search or seizure occurred without a warrant. Id. The burden
then shifts to the State to prove the reasonableness of the search or seizure. Id.
B. Discussion
We first examine whether Rendon carried his burden to rebut the presumption of
proper police conduct. Rendon argues that the affidavit presented to the magistrate
lacked probable cause because it was based on an unconstitutional sniff by Baco, and
the remaining information in the affidavit was erroneous and insufficient to support a
finding of probable cause.
A magistrate shall not issue a search warrant without first finding probable cause
that a particular item will be found in a particular location. McLain, 337 S.W.3d at 272.
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 specific location.
Id. When the trial court determines whether probable cause exists to support the
A- 7 issuance of a search warrant, there are no credibility determinations; rather, the trial
court is constrained to the four corners of the affidavit. Id. at 271. When reviewing a
magistrate’s decision to issue a warrant, we apply a highly deferential standard because
of the constitutional preference for searches to be conducted pursuant to a warrant. Id.
As long as the magistrate had a substantial basis for concluding that probable cause
existed, we will uphold the magistrate’s probable cause determination. Id.
An evaluation of the constitutionality of a search warrant should begin with the
rule that “the informed and deliberate determinations of magistrates empowered to issue
warrants are to be preferred over the hurried action of officers who may happen to make
arrests.” Id. at 272. When reviewing the issuing magistrate’s determination, we
interpret the affidavit in a commonsensical and realistic manner, rather than a
hypertechnical manner, recognizing that the magistrate may draw reasonable
inferences. Rodriguez v. State, 232 S.W.3d 55, 59–61 (Tex. Crim. App. 2007).
1. Dog Sniff
Rendon first argues that the State lacked probable cause to obtain a search
warrant because the basis for the warrant was an unconstitutional search by Detective
Stover with Baco at Rendon’s door. The United States Supreme Court recently
addressed the constitutionality of the use of drug-sniffing dogs in Florida v. Jardines.
133 S.Ct. at 1414–18. In Jardines, the Court reiterated that “when ‘the Government
obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a
search within the original meaning of the Fourth Amendment’ has ‘undoubtedly
occurred.” Id. at 1414 (quoting United States v. Jones, 132 S.Ct. 945, 950–51 n.3
(2012)). The Jardines Court further noted that when it comes to the Fourth
A- 8 Amendment, the home is “first among equals,” because at the Amendment’s “very core,”
stands “the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.” Id. (quoting Silverman v. United States, 365
U.S. 505, 511 (1961)).
Additionally, the United States Supreme Court has recognized that the “curtilage,”
or the area immediately surrounding and associated with the home, is “‘part of the home
itself for Fourth Amendment purposes.’” Id. (quoting Oliver v. United States, 466 U.S.
170, 180 (1984)). The Court noted that “[w]hile the boundaries of the curtilage are
generally ‘clearly marked,’ the ‘conception defining the curtilage’ is at any rate familiar
enough that it is ‘easily understood from our daily experience.’” Id. (quoting Oliver, 466
U.S. at 182, n.12). Utilizing these principles, the Jardines Court upheld the Florida
Supreme Court’s holding that the Miami-Dade Police Department’s use of trained police
dogs to investigate a home and its immediate surroundings was a “search” within the
meaning of the Fourth Amendment that was unsupported by probable cause, rendering
the warrant invalid. See id. at 1417–18; see also Jardines v. State, 73 So.3d 34, 55–56
(Fla. 2011).
We now turn to the facts of the present case. Detective Stover’s testimony
reveals that he used Baco to conduct a warrantless search of Rendon’s apartment door
at the request of other officers who were speaking to Rendon at the time outside of
Rendon’s apartment. Detective Stover provided no other reason to support the
warrantless search. Rendon argues that this sniff search occurred in the curtilage of his
apartment, and was, thus, unreasonable under Jardines and the Fourth Amendment.
The State argues that because Baco’s sniff occurred in the passageway leading up to
A- 9 Rendon’s apartment, it was a “common area” of the apartment complex and not
protected by the Fourth Amendment. We agree with Rendon.
According to Detective Stover’s testimony and affidavit requesting a search
warrant, Baco sniffed the “bottom left portion” of Rendon’s apartment door and indicated
the odor of narcotics “from within” Rendon’s apartment. However, facts from the record
support Rendon’s curtilage argument, including that (1) Rendon’s apartment was the
only apartment on the upper-left side of the building; (2) Rendon’s neighbor, John Crook,
who lives in the apartment on the upper-right side of the building, testified that he hangs
plants along the railing in front of his apartment; and (3) Defendant’s Exhibit 3, a
photograph of Rendon’s apartment building taken from the parking lot, depicts that
Rendon’s downstairs neighbor has chairs in the area immediately in front his apartment
as well. Logically, this means that at the time of Baco’s sniff, Rendon’s door was
closed, and the sniff occurred immediately in front of the apartment’s door. Based on
this record, we conclude that the area immediately in front of Rendon’s apartment is no
different from the front porch of a free-standing home. Thus, bringing a trained police
dog to sniff the bottom left portion of Rendon’s apartment door in hopes of discovering
incriminating evidence exceeded the scope of any express or implied license allowed
under the Fourth Amendment. See Jardines, 133 S.Ct. at 1416 (noting that “the
knocker on the front door is treated as an invitation or license to attempt an entry,
justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”).
The State misplaces its reliance on our sister court’s holding in Evans v. State,
995 S.W.2d 284, 285–87 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) to support its
“common area” argument. We find Evans distinguishable and inapplicable. In Evans,
A- 10 the appellant sought to suppress evidence obtained from a search of her apartment on
the basis that officers entered her apartment complex’s common areas in an
unauthorized manner. Id. at 286. The present case does not deal with the common
areas of an apartment complex, as discussed in Evans, such as parking lots and
sidewalks, but rather the curtilage of Rendon’s apartment. Therefore, we hold that
police conducted an unreasonable search by using a trained police dog to investigate the
curtilage of Rendon’s apartment. See U.S. CONST. IV; TEX. CONST. art. I, § 9; see also
Jardines, 133 S.Ct. at 1417–18.
2. Residual Probable Cause
Despite our holding that police conducted an unreasonable search of Rendon’s
home and used the tainted search results to establish probable cause in order to obtain a
search warrant, we must continue our inquiry and “put aside all tainted allegations” to
determine whether the remaining independently acquired and lawful information stated
in the affidavit clearly established probable cause. See McClintock v. State,
S.W.3d , No. PD–0925–13, at *3 (Tex. Crim. App. Oct. 1, 2014) (recognizing the
principle of “residual probable cause” as stated in Castillo v. State, 818 S.W.2d 803, 805
(Tex. Crim. App. 1991), overruled on other grounds by Torres v. State, 182 S.W.3d 899,
901–02 (Tex. Crim. App. 2005)).
In the remainder of his probable cause affidavit, Detective Stover stated that
Victoria police officers conducted a drug investigation at Rendon’s apartment complex
on May 8, 2012. Detective Stover stated that in the parking lot of the complex, Baco
conducted a sniff test upon a parked white Coors Lite Hartman Distributing Chevrolet
HHR and a parked red four-door Cadillac. According to the affidavit, Baco displayed an
A- 11 “extreme change in behavior and breathing” when he sniffed the Chevrolet vehicle,
indicating a “positive alert to the odor of narcotics from within.” Detective Stover also
provided the following information in his affidavit:
Prior to [the May 8, 2012] investigation, a confidential informant working under the direction [sic] purchased a large amount of cocaine from an individual whose supplier arrived from another location to the buy location. On the first purchase of cocaine, the supplier showed up in a red 4 door vehicle. The surveillance vehicle was too far away at this time to make out the model of the vehicle.
During the second buy, a Hartman Distributing HHR showed up and supplied cocaine to the “middle man” who in turn was given the money for the cocaine by the confidential informant.
A license plate was obtained off of the Harman Distributing [sic] by SCU personnel. Sgt. Jameson contacted the owner of Hartman Distributing and requested to know who had been driving the vehicle on this date. The owner advised that Michael Rendon had been driving the vehicle on the date of the confidential informant’s purchase of cocaine.
Surveillance was conducted on this location following this information being provided. At this time, SCU personnel learned that Michael Rendon also owned and operated a red 4 door Cadillac.
After reviewing the four corners of the affidavit “in a commonsensical and realistic
manner,” see Rodriguez, 232 S.W.3d at 59–61, and giving the appropriate deference to
the magistrate, see McLain, 337 S.W.3d at 271, we cannot conclude that the remaining
“independently acquired and lawful information stated in the affidavit” clearly establishes
probable cause to search Rendon’s apartment. After setting aside Baco’s sniff of
Rendon’s apartment door, the remaining allegations contained in Detective Stover’s
affidavit focus on establishing Rendon’s identity and his use of the Chevrolet vehicle to
transport drugs. Nothing in the remainder of the affidavit establishes that under the
totality of the circumstances, there was a fair probability that contraband or evidence of a
crime would be found inside of Rendon’s apartment. See id. at 272. Therefore, we A- 12 conclude that the magistrate did not have a substantial basis for concluding that
probable cause existed to search Rendon’s apartment.
3. Summary
In sum, we conclude that Rendon met his burden to rebut proper police conduct.
Under Jardines, Detective Stover conducted an unreasonable search of Rendon’s home
by entering the curtilage of Rendon’s apartment and using a trained dog to sniff
Rendon’s door to find incriminating evidence. Furthermore, after “putting aside” the
information derived from the dog sniff from the search warrant affidavit, we cannot
conclude that the affidavit clearly established probable cause to search Rendon’s
apartment. Without probable cause, the search warrant was invalid. The State’s sole
issue on appeal is overruled.
III. CONCLUSION
We affirm the trial court’s orders granting Rendon’s motions to suppress.
GINA M. BENAVIDES, Justice
Publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed the 4th day of December, 2014.
A- 13