McClintock, Bradley Ray, PD-1641-15

DPS surveillance of a duplex at 412 W. Clay detected signs of indoor marijuana grow activity (blackened windows, upstairs access via an open rear stairway, vehicles, comings-and-goings).
Agent Arthur smelled marijuana outside and summoned HPD canine "Sita," which alerted at the second-floor back door; affiant noted items sealing the door.
A magistrate issued a search warrant the next day based in part on the canine alert; officers seized marijuana.
Trial court denied McClintock’s motion to suppress; he pleaded guilty to a reduced offense and received deferred adjudication; he appealed the suppression ruling.
While appeals were pending, the U.S. Supreme Court decided Florida v. Jardines (canine sniff at home’s curtilage is a search), and the Texas Court of Criminal Appeals remanded to address whether the federal Davis good-faith exception applies to Texas law.
On remand the First Court of Appeals held Davis does not create an exception to Texas’s statutory exclusionary rule (Art. 38.23) and ordered suppression; a dissent would have applied Davis and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Davis v. United States’ exception to the federal exclusionary rule (no exclusion when officers reasonably rely on binding precedent) applies to Texas’s statutory exclusionary rule (Art. 38.23).	State: Davis should apply; officers relied in good faith on binding pre-Jardines precedent, so exclusion would not further deterrence.	McClintock: Texas statute governs; Davis is a federal judge-made doctrine that cannot override the statutory text and Texas precedent requiring warrants be based on lawfully obtained probable cause.	Court of Appeals: Davis does not create an exception to Art. 38.23; Texas statute bars admission unless an express statutory exception applies.
Whether the dog-sniff evidence (deemed lawful when performed) may be used to establish probable cause for the warrant in light of subsequent Jardines decision.	State: Because officers acted under binding precedent, the canine alert should count toward probable cause under Art. 38.23(b)’s good-faith exception.	McClintock: A warrant cannot be lawfully based on illegally obtained information; Jardines renders the sniff unlawful and so it cannot support probable cause.	Court of Appeals: Illegally obtained evidence cannot be used to establish probable cause; the warrant was not based on sufficient lawfully obtained information and the seized evidence must be suppressed.

Davis v. United States, 131 S. Ct. 2419 (U.S. 2011) (federal good-faith rule: evidence obtained in reasonable reliance on binding precedent need not be excluded)
Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013) (canine sniff on the curtilage of a home is a Fourth Amendment search)
McClintock v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014) (Court of Criminal Appeals remanding to consider Davis’ applicability to Texas law)
Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) (history and scope of Texas’s statutory exclusionary rule)
Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013) (independent-source doctrine consistent with Art. 38.23)
Curry v. State, 808 S.W.2d 481 (Tex. Crim. App. 1991) (Art. 38.23(b) requires an initial magistrate determination of probable cause; good-faith reliance on a subsequently-invalidated warrant does not satisfy the statute)
State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996) (refusal to import federal inevitable-discovery exception into Art. 38.23)