Schuller, Ex Parte Ryan Edward, PD-1153-15

Background

In 2011 police brought a drug-sniffing dog onto Schuller’s property and had the dog sniff the garage door; the dog alerted and officers obtained a search warrant that led to discovery of marijuana. Schuller pleaded guilty pursuant to a plea bargain, received deferred adjudication, and waived direct appeal.
At the time of the plea, three Texas intermediate appellate courts had held that open-air canine sniffs of a home’s curtilage were not Fourth Amendment searches.
In 2013 the U.S. Supreme Court decided Florida v. Jardines, holding that a canine sniff of the curtilage is a Fourth Amendment search.
After Jardines, Schuller filed an art. 11.072 habeas application asserting his search claim was unavailable at the time of his plea and thus cognizable in habeas; the trial court granted relief.
The State conceded that under current law the canine sniff here would be unconstitutional, but appealed. The Fifth Court of Appeals reversed, holding Schuller forfeited the claim by pleading guilty and failing to obtain a ruling on his pre-plea suppression motion and that the ‘‘right not recognized’’ exception no longer excuses preservation in most cases.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Fourth Amendment dog sniff of curtilage can be raised for the first time in habeas after the Supreme Court created the rule in Jardines	Schuller: Jardines created a new, previously unavailable basis; habeas is proper because the claim was not reasonably available at plea	State: Schuller waived the claim by pleading guilty and failing to obtain a trial-court ruling; suppression claims are forfeitable and must be preserved	Court of Appeals: Forfeiture controls; Schuller should have preserved the claim and the habeas relief was improper; reversal of trial court granted
Whether the ‘‘right not recognized’’ exception (allowing first-time habeas claims when basis was not reasonably available) survives as a general exception	Schuller: Exception protects claims based on new Supreme Court rulings that were unforeseeable and would have been futile to pursue	State: Marin/Sanchez and related precedent have substantially narrowed/eliminated the exception; preservation rules apply	Court of Appeals: Marin/Sanchez framework applies; the exception does not excuse preservation here
Whether Jardines’ rule applies retroactively on collateral review	Schuller: Jardines announces a substantive protection of home privacy that can be applied retroactively in collateral proceedings	State: (alternative) new rule not necessarily retroactive on collateral review	Court of Appeals: Did not reach because disposition turned on forfeiture/preservation; reversed on that ground
Whether the trial court abused discretion by granting habeas relief given the record	Schuller: Trial court correctly found claim not reasonably available at plea and granted relief	State: Trial court abused discretion because Schuller chose plea over obtaining a ruling and did not preserve error	Court of Appeals: Trial court abused discretion; reinstated deferred adjudication

Key Cases Cited

Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013) (canine sniff of curtilage is a Fourth Amendment search)
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (framework categorizing rights as absolute, waivable, or forfeitable for preservation rules)
Ex parte Michael Keith Boyd, 58 S.W.3d 134 (Tex. Crim. App. 2001) (discussing ‘‘right not recognized’’/when failure to raise claim at trial may be excused)
Sanchez v. State, 120 S.W.3d 359 (Tex. Crim. App. 2003) (limiting the right-not-recognized exception and applying Marin preservation analysis)
Romo v. State, 315 S.W.3d 565 (Tex. App.—Fort Worth 2010) (holding free-air dog sniffs of curtilage were not searches under Texas precedent prior to Jardines)
Leal v. State, 456 S.W.3d 567 (Tex. Crim. App. 2015) (noting suppression claims are forfeitable and require preservation)