Bradley Ray McClintock v. State, 480 S.W.3d 734

Background

Police observed activity at a two-story building; Officer Arthur smelled marijuana outside the second-floor residence and used a narcotics dog, which alerted at the top of a public stairway outside the door.
Officer Arthur’s affidavit (including the dog alert) was used to obtain a search warrant for McClintock’s upstairs apartment; officers seized marijuana pursuant to that warrant.
While the appeal was pending, the U.S. Supreme Court decided Florida v. Jardines, holding that a warrantless dog sniff on the curtilage of a home is a Fourth Amendment search; this decision rendered the earlier warrantless sniff unlawful.
The Texas Court of Appeals (this court) initially reversed the denial of McClintock’s suppression motion because, with the dog-sniff evidence excluded under Jardines, the affidavit lacked probable cause.
The Texas Court of Criminal Appeals affirmed the lack of probable cause but remanded to allow consideration of whether the federal Davis good-faith exception to the exclusionary rule (reliance on binding precedent) applies to Texas law and could save the dog-sniff evidence.
On remand this court held Davis does not create an exception to Texas’s statutory exclusionary rule (Art. 38.23); because the warrant relied on illegally obtained evidence, the seized marijuana must be suppressed and a new trial ordered.

Issues

Issue	State's Argument	McClintock's Argument	Held
Whether good-faith reliance on binding appellate precedent (Davis) creates an exception to Texas’s exclusionary statute allowing admission of evidence obtained via an unlawful dog sniff	Officer Arthur reasonably relied on pre-Jardines binding precedent; under Davis suppression is unwarranted for objectively reasonable reliance	Appellant argued need to develop record on good faith and contended no controlling precedent authorized the sniff; Davis shouldn’t apply to Art. 38.23	Held: Davis’s judge-made exception to the federal exclusionary rule does not create an exception to Texas’s statutory exclusionary rule (Art. 38.23); evidence must be suppressed.
Whether illegally obtained information (the dog alert) may be considered by the magistrate to establish probable cause for a warrant	State: Davis should allow the illegally-obtained dog alert to be treated as lawful for magistrate probable-cause review because officer acted in good-faith reliance on precedent	McClintock: Illegally obtained evidence cannot be used to establish probable cause; need suppression	Held: Texas law forbids using illegally obtained evidence to supply probable cause; Art. 38.23 requires exclusion where a causal connection exists and subsection (b) only saves evidence obtained in objective good-faith reliance on a warrant based on probable cause.
Whether Art. 38.23(b) can be read to incorporate federal good-faith doctrines (Leon/Davis) to admit evidence obtained via later-invalidated practices	State: Art. 38.23(b) should be interpreted to allow admission when officers acted in objectively reasonable good faith relying on then-binding precedent	McClintock: Art. 38.23(b) requires an independent finding of probable cause; federal exceptions should not override the statute	Held: Art. 38.23(b)’s text and Texas precedent require an independent probable-cause basis; federal good-faith exceptions (Leon/Davis) are inconsistent with Article 38.23 when evidence was causally obtained via illegal conduct.
Remedy and disposition	State: If Davis applies, no suppression; conviction should stand or be remanded for further factfinding on good faith	McClintock: Suppression and new trial required	Held: Suppress the marijuana evidence and remand for a new trial without the illegally obtained evidence.

Key Cases Cited

Florida v. Jardines, 569 U.S. 1 (2013) (warrantless dog sniff on curtilage of home is a Fourth Amendment search)
Davis v. United States, 564 U.S. 229 (2011) (evidence obtained in reasonable reliance on binding precedent is not subject to the exclusionary rule)
United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to federal exclusionary rule for reliance on a warrant)
Illinois v. Caballes, 543 U.S. 405 (2005) (dog sniff during a lawful traffic stop is not a search)
McClintock v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014) (Court of Criminal Appeals: warrant affidavit lacked probable cause; remanded to consider Davis issue)
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013) (independent-source doctrine consistent with Art. 38.23)
Daugherty v. State, 931 S.W.2d 268 (Tex. Crim. App. 1996) (Texas refused to adopt inevitable-discovery doctrine inconsistent with Art. 38.23)
Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) (history and scope of Texas’s statutory exclusionary rule)