Bradley Ray McClintock v. State
405 S.W.3d 277
Tex. App.2013Background
- DPS surveilled the two-story duplex at 412 West Clay Street, observing McClintock’s comings and goings from his upstairs apartment.
- Affidavit sought a warrant to search the upstairs apartment for marijuana cultivation based on surveillance observations.
- Officer smelled marijuana from outside the location and requested a narcotics dog; Sita alerted at the second-floor doorway via the public stairway.
- A warrant was issued and marijuana was seized from McClintock’s apartment.
- McClintock moved to suppress the dog sniff as an unlawful search; trial court denied; he pleaded guilty while preserving appeal.
- Appellate review focused on whether, excluding tainted dog-sniff information, the remaining affidavit facts established probable cause for the warrant and whether the search complied with particularity requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the dog sniff at the doorway on curtilage is a Fourth Amendment search | McClintock argues the sniff is a warrantless search. | State contends the sniff is not a search or is permissible under public-access doctrine. | Yes, the dog sniff at the curtilage is a search that requires a warrant. |
| Whether tainted dog-sniff information can be ignored if independent facts still support probable cause | McClintock contends taintinvalidates the warrant. | State argues taint can be excised if remaining facts establish probable cause. | The remaining tainted affidavit information does not, by itself, establish probable cause. |
| Whether odor and observations tie prob. cause to the specific upstairs unit in a multi-unit building | Odor from outside and observed activity sufficiently linked to upstairs unit. | Probable cause must tie to the specific unit; generalized location odor is insufficient. | Probable cause was not tied sufficiently to the upstairs unit; particularity requirement not met. |
Key Cases Cited
- Florida v. Jardines, 569 U.S. 1 (U.S. 2013) (dog-sniff at home is a search under the Fourth Amendment)
- Gates, 462 U.S. 213 (U.S. 1983) (totality-of-the-circumstances probable-cause standard)
- McLain v. State, 337 S.W.3d 268 (Tex.Crim.App.2011) (probable-cause review limited to four corners of the affidavit)
- Davis v. State, 202 S.W.3d 149 (Tex.Crim.App.2006) (odor-based probable cause; officer’s expertise can support relevance of odor)
- Brackens v. State, 312 S.W.3d 831 (Tex.App.-Houston [1st Dist.] 2009) (tainted-evidence approach: exclude tainted info and assess remaining basis for probable cause)