Bradley Ray McClintock v. State, 405 S.W.3d 277

Lead Opinion

OPINION

MICHAEL MASSENGALE, Justice.

The police seized marijuana from appellant Bradley McClintock’s apartment. They did so pursuant to a search warrant obtained with evidence of a drug-detecting dog’s sniff at McClintock’s back door, conducted without a warrant. The United States Supreme Court has since held that a dog-sniff under these circumstances is a search within the meaning of the Fourth Amendment. Florida v. Jardines, — U.S. —, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).

McClintock moved to suppress the fruits of the search, and the trial court denied the motion. Reserving his right to appeal the evidentiary issue, he then pleaded guilty to the possession of marijuana in an amount from four ounces to five pounds. See Tex. Health & Safety Code Ann. §§ 481.120, 481.121 (West 2010). The main question raised by this appeal is whether, after excluding the evidence of the dog-sniff, the other information contained in the affidavit offered to obtain the warrant sufficiently established probable cause for the search. We conclude it did not, and accordingly we rеverse and remand for a new trial.

Background

Officers from the Department of Public Safety set up surveillance at a two-story brick duplex located at 412 West Clay Street in Houston. The first floor is occupied by two businesses that manufacture raw vegan food and food for farmers’ markets, while the second floor has a residential apartment. The building has two front doors. On the right, a door leads to the businesses’ kitchen; on the left, the door leads to an enclosed stairway to the apartment. A narrow driveway or alley leads to a backyard parking lot for the building. There is a ground-floor entrance to the businesses at the back of the building. Also in the backyard parking area is an open metal staircase leading up to a door for the second-floor apartment.

The DPS officers watched the building for about a week, observing McClintock’s comings and goings from his apartment. Based on that investigation, Officer Ryan Arthur applied for a search warrant. The warrant affidavit sought to justify a search of MeClintock’s apartment based on the following information:

Affiant received information that marijuana was being grown inside the 2nd floor residence located at 412 West Clay, Houston, Harris County, Texas. Affiant went to this location and found it to be located in Harris County, Texas. Affiant and other peace officers with the Texas Department of Public Safety set up surveillance on this location. During surveillance of this location over the last week of the making of this affidavit, affiant observed the following: the downstairs of this location appears to be a business, there is an open to the public stairway that leads to the upstairs. This set of stairs is located on the backside of the location which is a public parking area for the location/business. There are no gates, fences or doors that block access to this parking area or to the stairs leading to the door to the 2nd floor. This stairway is open to the public in that it could easily be where a delivery person could or would make deliveries to the upstairs residence area. Affiant has observed a male individual come and go from this location, at hours well before and after the business hours of the business on the first floor. Based on training and experience, Affiant found this to be consistent with possible narcotics activity.

On September 29, 2010, Affiant approached this location. At this time, from the outside of this location, Affiant could smell, what Affiant knows from training and experience to be, marijuana. On this same date at approximately 11:30 pm, Affiant requested the assistance of a narcotics canine at this location. Affiant spoke with and obtained the assistance of Houston Police Department Canine Officer Kristin Uhlin and her canine partner “Sita”. Officer Uhlin stated that she and “Sita” are currently certified by the National Narcotics Detector Dog Association, # 48761, for the detection of the odors of marijuana, cocaine and methamphetamine. Affiant observed Officer Uhlin and “Sita” to deploy up to the second floor doorway using the open to the public stairway described above. Officer Uhlin stated to Affiant that at the doorway leading into the second floor of this location, “Sita” gave a positive alert at this location indicating the presence of one or more of the above named controlled substance.

The magistrate issued the requested search warrant, and the police seized marijuana from the apartment.

McClintock filed a motion to suppress, challenging the dog’s sniff at the apartment’s doorway as an illegal search. He argued that the stairway landing in front of the apartment door was curtilage, nоt a public space, and therefore he had a reasonable expectation of privacy there. The trial court found the warrant to be valid and denied the motion to suppress. Reserving his right to appeal from the adverse ruling, McClintock pleaded guilty to a state-jail felony. He then filed this timely appeal of the ruling on the motion to suppress.

Analysis

We review a trial court’s ruling on a motion to suppress using a bifurcated standard: we give almost total deference to the historical facts found by the trial court, and we review de novo the trial court’s application of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App.2011). When a trial court is determining probable cause to support the issuance of a search warrant, there are no credibility determinations and the court is limited to the four corners of the affidavit. Id. (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004)). The facts upon which the magistrate bases a probable-cause determination must appear within the four corners of the affidavit submitted in support of the request for á warrant. See, e.g., Crider v. State, 352 S.W.3d 704, 707 (Tex.Crim.App.2011); Cassias v. State, 719 S.W.2d 585, 587-88 (Tex.Crim.App.1986). The affidavit must allow the magistrate to independently determine probable cause, and the magistrate’s actions “cannot be a mere ratification of the bare conclusions of others.” Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App.2007) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2333, 76 L,Ed.2d 527 (1983)).

A magistrate shall not issue a search warrant without first finding probable cause that a particular item will be found in a particular location. See, e.g., McLain, 337 S.W.3d at 272. In reviewing the affidavit before the magistrate, we interpret it in a commonsense and realistic manner. Rodriguez, 232 S.W.3d at 61. As long as the magistrate had a “substantial basis” for concluding that probable cause existed, we will uphold the magistrate’s probable-cause determination. McLain, 337 S.W.3d at 271. “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 specified location.” Id. at 272.

I. Dog sniff

The government’s use of a trained poliсe dog to investigate the home and its immediate surroundings, called the curtilage, is a search under the Fourth Amendment. Jardines, 133 S.Ct. at 1417-18. The curtilage immediately surrounds and is associated with the home, such as a porch or other adjacent areas “to which the activity of home life extends.” Id. at 1415 (quoting Oliver v. United States, 466 U.S. 170, 182 n. 12, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984)). Although police may approach a home and enter the curtilage to knock on a door, just as any private citizen might, they lawfully may not approach a residence’s door with the objectively apparent purpose of searching that residence without a warrant, as is demonstrated when the police approach with a trained drug-detection dog. Id. at 1416 & n. 3. Such a search exceeds the implicit license granted by custom that allows strangers to approach a home and briefly solicit its occupants from within the curtilage. The Fourth Amendment protects against these violations of the anciеnt rule that “the property of every man [is] so sacred, that no man can set his foot upon his neighb-our’s close without his leave.” Id. at 1415 (quoting Entick v. Carrington, 2 Wils.K.B. 275, 291, 95 E.R. 807, 817 (1765)).

The boundaries of the curti-lage are easily understood from daily experience. Oliver, 466 U.S. at 182 n. 12, 104 S.Ct. at 1743. Curtilage includes a home’s doors and porch, see Jardines, 133 S.Ct. at 1412, but does not include open fields, which are outside the bounds of the home and are not immediately surrounding and associated with the home. See, e.g., Oliver, 466 U.S. at 180-81, 104 S.Ct. at 1742; United States v. Dunn, 480 U.S. 294, 303, 107 S.Ct. 1134, 1141, 94 L.Ed.2d 326, - (1987) (observation into a barn from an open field is not a search of a private area). Likewise, curtilage does not include public spaces such as the common areas or hallways of an apartment complex. See, e.g., United States v. Ramirez, 145 Fed.Appx. 915, 922-23 (5th Cir.2005) (shared apartment complex balcony); United States v. Hawkins, 139 F.3d 29, 32-33 (1st Cir.1998) (common areas of an apartment building); United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir.1992) (same).

In this case, the landing in front of the apartment’s door is part of the apartment’s curtilage. No different than a porch, the stairway landing attached to and surrounded the entrance to McClin-tock’s home and the activity of home life extended onto it. McClintock kept sevеral house plants on the landing. The stairway was not a “common” area; it led only and directly to McClintock’s door. Bringing a trained drug-detection dog to conduct a search from the landing in front of McClin-tock’s door exceeded any license which impliedly may have been granted merely to approach and solicit any residents of the apartment.

Thus, when the police officers used a trained dog to investigate McClin-tock’s apartment from inside the curtilage, they intruded upon his home and conducted a search within the meaning of the Fourth Amendment. See Jardines, 133 S.Ct. at 1417-18. Lacking a warrant, the search from within McClintock’s curtilage was presumptively unreasonable unless it could be independently justified by the other information contained in the affidavit.

II. The remainder of the affidavit

“ ‘When a search warrant is issued on the basis of an affidavit containing unlawfully obtained information, the evidence seized under the ‍​‌​​​‌​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​​​‌​‌​​‌​‌‌‍warrant is admissible only if the warrant clearly could hаve been issued on the basis of the untainted information in the affidavit.’ ” Brackens v. State, 312 S.W.3d 831, 838 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd) (quoting Pitonyak v. State, 253 S.W.3d 834, 848 (Tex.App.-Austin 2008, pet. ref'd)). In such a situation, we put aside the illegally obtained evidence from the affidavit and determine whether the remaining independently acquired and lawful information “clearly established” probable cause. Martin v. State, 67 S.W.3d 340, 343 (Tex.App.-Texarkana 2001, pet. ref'd); see Pitonyak, 253 S.W.3d at 848.

Probable cause for a search warrant exists if, under the totality of circumstances before the magistrate, there is a “fair probability” or “substantial chance” that contraband will be found in a particular place. Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App.2010) (citing Gates, 462 U.S. at 238, 243 n. 13, 103 S.Ct. at 2332, 2335). As previously noted, when determining probable cause to support the issuance of a search warrant, the trial court is constrained to reviewing the four corners of the supporting affidavit. McLain, 337 S.W.3d at 271.¹

The State argues that this affidavit was supported by three separate grounds to establish probable cause to search. First, the activity of McClintock coming аnd going, “at hours well before and after the business hours of the business on the first floor,” was characterized as being “consistent with possible narcotics activity.” Second, Officer Arthur himself smelled what was known to him “from training and experience to be, marijuana” from the outside of the “location.” Third, there was the dog-sniff at the top of the stairwell. Disregarding the information from the dog search, the remaining facts do not establish probable cause.

The Fourth Amendment prohibits the issuance of any warrant except one “particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The manifest purpose of this particularity requirement is to ensure that the search will be carefully tailored to its justifications and will not take on the character of a wide-ranging, exploratory, general search. Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). One of the constitutional objectives of “requiring a ‘particular’ dеscription of the place to be searched” is to confirm that “probable cause is, in fact, established for the place described in the warrant.” Long v. State, 132 S.W.3d 443, 447 (Tex.Crim.App.2004); see also Taylor v. State, 974 S.W.2d 851, 856 & n. 12 (Tex.App.-Houston [14th Dist.] 1998, no pet.). In other words, the probable cause required to justify a search warrant must specifically justify searching the place particularly described in the warrant. See, e.g., Gates, 462 U.S. at 238, 103 S.Ct. at 2332 (“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (emphasis supplied)); Crider v. State, 352 S.W.3d at 707 (“The probable-cause standard means that the affidavit must set out sufficient facts for the magistrate to conclude that the item to be seized will be on the described premises at the time the warrant issues and the search executed.” (emphasis supplied)); Jones v. State, 338 S.W.3d 725, 733 (Tex.App.-Houston [1st Dist.] 2011) (“Our inquiry ... is whether there are sufficient facts, coupled with inferences from those facts, to establish a ‘fair probability' that evidence of a particular crime will likely be found at a given location.” (emphasis supplied)), aff'd, 364 S.W.3d 854 (Tex.Crim.App.2012), cert. denied, — U.S. —, 133 S.Ct. 370, 184 L.Ed.2d 160 (2012).

From these principles, it is plain that “when a building is divided into more than one residential unit, a distinct probable cause determination must be made for each unit.” United States v. Perez, 484 F.3d 735, 741 (5th Cir.2007) (quoting United States v. Butler, 71 F.3d 243, 249 (7th Cir.1995)); see also United States v. Shamaeizadeh, 80 F.3d 1131, 1137 (6th Cir.1996); State v. Duran, No. 08-10-00349-CR, 2011 WL 5569497 (Tex.App.-El Paso Nov. 16, 2011, no pet.) (“To search two separate living units, officers must obtain a warrant for each one.”). If an affidavit simply states that occupants of a house have contraband, without specifically implicating the apartment in the building to be searched, the particularity requirement is not met. Shamaeizadeh, 80 F.3d at 1137.

A. Officer’s detection of marijuana scent

In the affidavit, Officer Arthur stated that he smelled marijuana “from outside this location.” Throughout the affidavit, he used “this location” to refer to the entire premises located at 412 West Clay. We do not second-guess whether the officer’s nose knows the odor of marijuana. Accepting the officer’s training, experience, and qualificаtion to recognize the scent, a positive identification by itself can be persuasive evidence supporting a probable-cause determination when the source of the odor is specifically identified. See Davis v. State, 202 S.W.3d 149, 156 (Tex.Crim.App.2006). Nevertheless, Officer Arthur did not purport to specify that from his position outside of the “location,” he actually identified the marijuana smell to be coming from the upstairs apartment, as opposed to another location such as the ground-floor purveyors of vegan food. Instead, the officer identified his own location and stated that he smelled marijuana “from the outside of this location.” This is no grudging, hypertechnical reading of the affidavit. Probable cause must be tied to the particular place to be searched. Officer Arthur never said that he smelled marijuana coming from McClintock’s apartment — like the dog later did at his request — nor can that be fairly inferred from what he did say.

Based on lawfully obtained information within the four corners of the original affidavit, the marijuana odor detected by the officer could have emanated from anywhere near the surveilled location, including the first-floor businesses or a neighboring house. Accordingly, Officer Arthur’s statement concerning the odor, standing alone, does not support a determination of probable cause because it was not tied to the specific, particular place to be searched. See McLain, 337 S.W.3d at 272 (probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found at the specified location”); see also Davis, 202 S.W.3d at 156 (affidavit supported probable cause because police officer specified particular house from which he smelled odor of methamphetamine manufacturing).

B. Observed activity of suspect

Officer Arthur also observed that McClintock left and returned tо his apartment “at hours well before and after the business hours of the business on the first floor.” He further stated: “Based on training and experience, Affiant found this to be consistent with possible narcotics activity.” While one may speculate that arriving at and departing from a residential apartment at times other than business hours could indeed be “consistent with possible narcotics activity,” that bare observation by no measure establishes a “fair probability” or “substantial chance” that contraband will be found in a particular place. Indeed, on its face, the activity described by the officer is “apparently innocent”² and is equally consistent with other “possible ... activity” that happens during the night at times “before and after ... business hours,” including walkin’ after midnight,³ working a hard day’s night,⁴ drinking champagne ‘til early morning,⁵ or just staying up all night for good fun.⁶ To the extent Officer Arthur purported to rely on “training and experience” to characterize his observations as being “consistent with possible narcotics activity,” without further explanation of what made the activity suspicious, such characterization is conclusory and facially inadequate to establish probable cause. See Gates, 462 U.S. at 239, 103 S.Ct. at 2333; Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933) (“Mere affir-mance of belief or suspicion is not enough.”); State v. Duarte, 389 S.W.3d 349, 354 (Tex.Crim.App.2012) (“a magistrate’s action cannot be a mere ratification of the bare conclusions of others”); McKissick v. State, 209 S.W.3d 205, 216 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (“a mere conclusory statement will not suffice for a showing of probable cause”).

C. Totality of the circumstances

Of course the magistrate did not, and we must not, simply consider each fact contained in the affidavit in isolation. Instead, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision,” considering “all the circumstances set forth in the affidavit,” whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 at 238, 103 S.Ct. at 2332. And our duty as a reviewing court “is simply to ensure that thе magistrate ‍​‌​​​‌​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​​​‌​‌​​‌​‌‌‍had a ‘substantial basis’ ” for finding probable cause. Id. at 238-39, 103 S.Ct. at 2332. But even when the information that marijuana could be smelled in the vicinity of the “location” is combined with the observation of McClin-toek’s coming and going, there is no “fair probability that contraband will be found” in his particular apartment. See id.; McLain, 337 S.W.3d at 272. The observation of a free citizen’s ingress and egress from his private residence “at hours well before and after ... business hours” in a neighborhood where marijuana can be smelled, without more, simply does not justify a police search of that person’s home.

In an attempt to salvage the adequacy of the affidavit, the dissent credits an additional factor not even argued by the State in the trial court or on appeal⁷ — that the smell of marijuana coming from somewhere around the surveilled location and the supposedly suspicious activity of entering and exiting an apartment at night are “buttressed by the tiр” that Officer Arthur received from an unidentified source that “marijuana was being grown inside the 2nd floor residence.” By way of introductory background, the affidavit stated that “Affiant received information that marijuana was being grown inside the 2nd floor residence located at 412 West Clay, Houston, Harris County, Texas.” But no further information was provided about this apparent “tip.”

Thus while the affidavit did explain the commencement of the surveillance by vaguely alluding to a tip, it provided none of the kind of additional information that is necessary if the State seeks to rely on an informant’s tip to establish probable cause. And in fact the State has not relied on the tip from its unidentified informer to justify a finding of probable cause in this case. But if the State had so intended, it should have provided sufficient information to facilitate evaluation of the basis for the informant’s knowledge or the informant’s veracity. See Gates, 462 U.S. at 230, 103 S.Ct. at 2328 (“an informant’s ‘veracity,’ ‘reliability’ and ‘bаsis of knowledge’ are all highly relevant in determining the value of his report”); Cassias, 719 S.W.2d at 588. “An inverse relationship exists between the reliability of the informant and the amount of corroborated information required to justify the police intrusion; the less reliable the tip, the more information is needed.” Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.2011). The affidavit in this case provided no indication that the officer knew the identity of the informer,⁸ that the informer had provided any other information that had been independently corroborated to establish some reliability, or any other information from which the magistrate could reasonably infer that the informer had any actual familiarity with McClintock or his affairs. See Flores, 319 S.W.3d at 703 (magistrate could infer familiarity when the affidavit specified that the informer told the offer he “had observed a quantity of cocaine inside the ... residence in the past” and the informer

“gave several details” about appellant and his residence “that werе later corroborated in whole or in part,” including the discovery of marijuana stems, seeds, and residue in the appellant’s garbage). The complete lack of such information deprived the “tip” of any value it might have otherwise contributed to a commonsense and realistic review of the other information contained in the affidavit.

Conclusion

In sum, disregarding the information in the affidavit that was the product of the police’s unreasonable warrantless search of McClintock’s home with a drug-sniffing dog, the remaining information in the affidavit was only that a police officer could smell marijuana in the vicinity of the mul-ti-unit building where McClintock lived, and that the officer observed him leaving and returning to his apartment at different hours than the hours of operation of the businesses below. Considering the totality of the circumstances, this is not enough information to demonstrate a fair probability that contraband would be found in McClintock’s apartment. Thus, there was no substantial basis in the affidavit for concluding that probable cause existed to search the upstairs apartment. The motion to suppress the warrant obtained with this deficient affidavit should have been granted.

We reverse the ruling of the trial court and remand this cause to the trial court for a new trial without the evidence that should have been suppressed. All pending motions are denied.

Justice KEYES, dissenting.

Notes

1 . Accordingly, we may not rely on any bolstering "context" derived from the State’s supplementary affidavit referenced during the hearing on the motion to suppress. The dissenting opinion’s references to aluminum foil covering the windows, "a towel and plastic sealing” at "the bottom of the back door and around the seam near the door handle,” or the more detailed descriptions of where the officer stood when he smelled the odor of marijuana, are all based on information that wаs not available to the magistrate at the time the search warrant was issued. The transcript of the oral hearing on the motion to suppress demonstrates that the supplemental affidavit referenced in the dissent was offered for a different purpose, and that trial court and counsel all correctly understood that the probable-cause determination was confined to the allegations within the four corners of the original affidavit tendered in support of the request for the search warrant.

2 . Cf. Davis V. State, 202 S.W.3d 149, 154 (Tex.Crim.App.2006) (characterizing observations made in Cassias v. State, 719 S.W.2d 585 (Tex.Crim.App.1986), of "several narcotics users” moving "in and out” of a surveilled residence "for brief periods of time” and one individual "carrying brick type packages believed to be marijuana” and "carrying a plastic tub and tubing into the back yard” as "nothing but apparently innocent activity”).

3 . See, e.g., Patsy Cline, Walkin’ After Midnight (Decca 1957) ("I go out walkin' after midnight/Out in the moonlight, just like we used to do/I'm always walkin’ after midnight, searching for you”).

4 . See, e.g., The Beatles, A Hard Day's Night (Parlophone 1964) ("It's been a hard day’s night/And I’ve been working like a dog”).

5 . See, e.g., Cal Smith, Drinking Champagne (Kapp 1968) ("I’m drinking champagne, fee-lin' no pain ‘til early mornin'/Dining and dan-cin’ with every pretty girl I can find”); George Strait, Drinking Champagne (MCA 1990) (same).

6 . See, e.g., Daft Punk (featuring Pharrell Williams), Get Lucky (Columbia 2013) ("She’s up all night 'til the sun/I’m up all night to get some/She’s up all night for good fun/I’m up all night to get lucky”).

7 . The State did not file a written response to the motion to suppress in the trial court. At the hearing on the motion, the State placed the main weight of its argument on its position that the dog-sniff was not a search for Fourth Amendment purposes. RR at 16. Likewise, on appeal the State did not even mention any “tip” in the section of its brief contending that "The Warrant Stands Even Without the Canine Sniff,” instead relying solely upon the facts that the agent "had experience and training in the detection of marijuana and smelled it from outside the duplex.” State's Brief at 16.

8 . Because nothing in the affidavit suggest otherwise, we must assume the information came from an anonymous source, which "alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is 'by hypothesis largely unknown, and unknowable.' " Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)); see also Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.2011).

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Dissenting Opinion

EVELYN V. KEYES, Justice,

dissenting.

Appellant, Bradley Ray McClintock, pleaded guilty to possession of between four ounces and five pounds of marijuana and reserved his right to appeal the denial of his motion to suppress evidence obtained as a result of a search warrant. The trial court assessed punishment at three years’ deferred adjudication and a $500 fine. On appeal, McClintock argues that the trial court abused its discretion when it denied his motion to suppress. He contends that (1) the police’s usе of a drug dog to sniff at his apartment door from an external stairway outside his apartment building was a warrantless search of his apartment that invalidated the later search warrant under which officers entered the apartment and seized the marijuana; and (2) the probable cause affidavit was insufficient without this tainted information to show probable cause to obtain the warrant. The majority agrees with McClintock and remands the case for a new trial without the evidence discovered in the apartment.

I would hold that the untainted information contained in the probable cause affidavit, apart from the information that the dog alerted on the landing outside McClin-tock’s second-floor residence, was sufficient to authorize the magistrate to issue the warrant. See Davis v. State, 202 S.W.3d 149, 156 (Tex.Crim.App.2006). Therefore, I respectfully dissent from the majority’s opinion and judgment reversing the judgment of the trial court. I would affirm.

Background

After receiving informаtion that marijuana was being grown on the second floor of a two-story brick duplex at 412 West Clay Street in Houston, Texas, Department of Public Safety officers set up surveillance of the building. In an affidavit given to show probable cause to search the location for marijuana and evidence related to marijuana cultivation, the affiant, Officer R. Arthur, a police officer qualified to recognize the odor of marijuana and with extensive experience in narcotics investigation, described the location in detail. A business was located on the first floor of the duplex, and a parking area was located at the rear of the building. Officer Arthur stated,

There are no gates, fences or doors that block access to this parking area [behind the duplex] or to the stairs leading to the door to the 2nd floor. This stairway is open to the public in that it could easily be where a delivery pеrson could or would make deliveries to the upstairs residence area.

He also attached a photograph of the location to the affidavit. Based on his training and experience, the affiant found his observations of McClintock’s unusual comings and goings “at hours well ‍​‌​​​‌​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​​​‌​‌​​‌​‌‌‍before and after the business hours of the business on the first floor” during the week in which surveillance was conducted at the location to be “consistent with possible narcotics activity.”

The affidavit stated that on September 29, 2010, the affiant approached the location around 11:30 p.m. and smelled what he knew from training and experience to be marijuana “from the outside of this location.” After he smelled the marijuana, he requested and received the assistance of a narcotics canine at the location. The affiant then approached the duplex with other officers and a trained forensic narcotics dog, Sita. He observed Sita and her handler, Officer K. Uhlin, walk up to the second floor doorway using the open-to-the-public stairway leading to the second floor of the location, where Sita gave a positive alert. Based on the investigation, Officer Arthur applied for a search warrant. The magistrate issued the warrant, finding that the rear entrance to the apartment where Sita alerted was open to the public and was not curtilage; that the dog sniff was not a search; and that the alert at the rear entrance to the apartment established probable cause to issue the warrant. The police seized marijuana from McClintock’s apartment.

A subsequent affidavit, filed in response to appellant’s motion to suppress, supplied more details, but did not alter the facts on which the search warrant issued. The supplemental affidavit was supported by a number of phоtographs.¹

The supplemental affidavit, also prepared by Officer Arthur, detailed the surveillance conducted on McClintock between September 23, 2010, and September 29, 2010. Officer Arthur averred that there were two driveways on either side of the building leading to the rear parking area of the duplex. The driveway to the west of the building was shared with an adjacent duplex. There were “no gates, fences, security devices, or any other type of obstruction blocking either driveway, or the parking access in the rear of the duplex.” The parking area behind the duplex was a concrete slab surface and was “open to the rear parking area of the adjacent duplex to the west,” and this parking area was “not blocked by fences, gates, or any other type of obstructions and share[d] primarily the west driveway as access, but [was] also accessible from the east driveway.” The officers observed multiple vehicles parked in this area for extended periods of time.

There were two front doors to the building side by side on a small porch. Officer Arthur averred that the door on the right led to the first-floor business and that the officers did not know what the second door led to, but they had not seen anyone use it during their multiple days of surveillance. An outside staircase behind the duplex led from the parking area to an outside back door on the second floor. Officer Arthur averred that it was the type of stairway that “a delivery person could or would make deliveries to the upstairs residence area.”

On September 29, 2010, Officer Arthur, Officer Uhlin, Sita, and another officer approached the location around 11:30 p.m. Officer Arthur averred that he could smell marijuana while standing on the sidewalk towards the southeast corner of the location. He observed that several window air conditiоning units on the second floor were running, but the air conditioning units on the first-floor windows were not running. He continued to smell the odor of marijuana as he walked up the driveway to the rear of the building and while he was standing in the back parking area. Officer Uhlin and Sita then walked up the external stairs to the back door, where Sita gave a positive alert to indicate the presence of marijuana. Officer Arthur averred that “Officer Uhlin stated she observed a towel and plastic sealing the bottom of the back door and around the seam near the door handle,” which he knew was a type of seal used to prevent odors from escaping a location. He walked down the west driveway back to the front sidewalk and noted that all of the blinds on the upstairs windows were closed, and all of the upstairs windows appeared to be covered by aluminum foil or another similar item. He knew from experience that cold air was needed to cool rooms where high intensity lights are used to grow marijuana and that covering windows in reflective material is commonly used to prevent light from escaping and to maximize the amount of light available for growing marijuana.

The trial court denied the motion to suppress and made findings in support of the denial.

Analysis

A. Standard of Review

We review a trial court’s ruling on a motion to suppress using a bifurcated standard: We give almost total deference to the historical facts found by the trial court, and we review de novo the trial court’s application of the law. State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App.2011). When a trial court is determining probable cause to support the issuance of a search warrant, there are no credibility determinations; instead, the court is limited to the four corners of the affidavit. Id. (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004)).

We pay great deference to a magistrate’s determination of probable cause due to the strong constitutiоnal preference for a warrant. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate’s probable cause determination. McLain, 337 S.W.3d at 271 (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331). “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 specified location. It is a flexible and non-demanding standard.” Id. at 272.

On review, we interpret the affidavit before the magistrate in a commonsense and realistic manner. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App.2007). We recognize that the magistrate may draw reasonable inferences. Id. “When in doubt, we defer to all reasonable inferences that the magistrate could have made.” Id. Although we do not rubber stamp the magistrate’s determination, the magistrate’s decision should carry the day in doubtful or marginal cases, even if we might reach a different result upon de novo review. Jones v. State, 338 S.W.3d 725, 734 (Tex.App.-Houston [1st Dist.] 2011), aff'd, 364 S.W.3d 854 (Tex.Crim.App.2012).

B. The Majority Opinion

Here, Officer Arthur’s affidavit was supported by three grounds for finding probable cause to search the location, the second floor of 412 West Clay, for narcotics. First, Officer Arthur stated he was a trained Texas Department of Public Safety officer and that he recognized the coming and going of McClintock from the residence at unusual hours as “consistent with possible narcotics activity.” Second, Officer Arthur himself smelled what was known to him “from training and experience to be marijuana” from “the outside of this location,” i.e., from outside 412 West Clay. Third, there was the sniff by the dog Sita at the top of the stairway. Disregarding the information from the dog sniff, the fact that Officer Arthur himself smelled marijuana from outside of the location while in a public space constitutes a sufficient basis by itself to obtain a warrant to search the premises for marijuana cultivation, especially when buttressed by the tip that officers received concerning the growing of marijuana at the location and Arthur’s observation of McClintock’s unusual comings and goings, which, as a trained and experienced narcotics investigator, he knew to be “consistent with possible narcotics activity.”

The majority acknowledges that the evidence seized under the warrant would be admissible, even if the dog sniff was illegal, “‘if the warrant clearly could have been issued on the basis of the untainted information in the affidavit.’ ” Op. at 284 (quoting Brackens v. State, 312 S.W.3d 831, 838 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd)); see also Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App.1991) (holding that “the inclusion of tainted allegations in an affidavit does not necessarily render a resulting search warrant invalid”), overruled on other grounds, Torres v. State, 182 S.W.3d 899 (Tex.Crim.App.2005). “The relevant inquiry into probable cause based upon a tainted affidavit is to put aside the tainted allegations and determine whether the independently acquired and lawful information clearly established probable cause.” State v. Bridges, 977 S.W.2d 628, 632 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (citing Castillo, 818 S.W.2d at 805); see Pool v. State, 157 S.W.3d 36, 44 (Tex.App.-Waco 2004, no pet.).

The majority, however, finds the dog sniff to be illegal, discounts the additional bases for finding probable cause to issue the search warrant, and holds that the dog sniff invalidated the search warrant. First, it states, “Officer Arthur did not purport to specify that from his position outside of the ‘location,’ he actually identified the marijuana smell to be coming from the upstairs apartment, as opposed to another location such as the ground-floor purveyors of vegan food. Instead, the officer identified his own location and stated that he smelled marijuana ‘from the outside of this location.’ ... Based on lawfully obtained information within the four corners of the original affidavit, the marijuana odor detected by the officer could have emanated from anywhere near the surveilled location, including the first-floor businesses or a neighboring house.” Op. at 286. It then concludes that “Officer Arthur’s statement concerning the odor, standing alone, does not support a determination of probable cause because it was not tied to the specific, particular place to be searched.” Op. at 286 (citing McLain, 337 S.W.3d at 272 (holding that probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found at the specified location”) and Davis, 202 S.W.3d at 156 (holding that affidavit supported probable cause because police officer specified particular house from which he smelled odor of methamphetamine manufacturing)).

In holding that the probable cause affidavit in this case did not meet the particular place requirement for obtaining a warrant, the majority cites several cases from various federal circuits holding that when a search involves a building with multiple units, the warrant must specify the precise unit that is to be searched. See, e.g., United States v. Perez, 484 F.3d 735, 741 (5th Cir.2007). The probable cause affidavit in this case specified the target of the search: “the separate 2nd floor arеa of the duplex located at 412 West Clay....” Thus, the affidavit identified the precise unit to be searched. See id. The majority cites no authority for its conclusion that smelling contraband from outside a multi-unit building, in conjunction with a tip that illegal activity was occurring at a particular unit and observations of actions of the resident that appeared to an experienced narcotics officer to be consistent with narcotics activity, does not provide probable cause to search the specified unit in that building and that more precise information about the specific location from which the odor is emanating ‍​‌​​​‌​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​​​‌​‌​​‌​‌‌‍is necessary to establish probable cause. See Parker v. State, 206 S.W.3d 593, 599 (Tex.Crim.App.2006) (“The odor of contraband is certainly an important fact which may (or may not) be dispositive, given a specific context, in assessing whether probable cause exists.”).

The majority then dismisses McClin-tock’s unusual comings and goings well after business hours on the ground that this activity, on its face, “apparently innocent” and “is equally consistent with other ‘possible ... activity that happens during the night at times ‘before and after ... business hours....’” Op. at 286. This conclusion dismisses the affiant’s experience and knowledge of suspicious narcotics-related activity and reevaluates the evidence on appeal. The majority thus disregards the trial court’s findings that the warrant was supported by probable cause.

I agree with the majority that the dog sniff must be disregarded as grounds for establishing probable cause, but I disagree with its conclusion that the untainted information in the affidavit did not establish probable cause to search McClintock’s apartment.

The majority holds that the landing in front of McClintock’s apartment, which “led only and directly to McClintock’s door,” was part of the apartment’s curti-lage and was not part of a public or common areа. Op. at 284. Thus, when the police used a trained dog to sniff at the apartment’s door from the landing, “they intruded upon his home and conducted a search within the meaning of the Fourth Amendment.” Op. at 284 (citing Florida v. Jardines, — U.S. —, —, 133 S.Ct. 1409, 1417-18, 185 L.Ed.2d 495 (2013)). This “search from within McClin-tock’s curtilage was presumptively unreasonable. ...” Op. at 284.

I agree with the majority that, under Florida v. Jardines, the outside landing on which Sita alerted to a controlled substance was part of the curtilage of McClin-tock’s apartment. 133 S.Ct. at 1415. I also agree that, under Jardines, “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id, at 1417-18.

It is important, however, to distinguish “independently acquired and lawful information” from unlawfully obtained information. See Bridges, 977 S.W.2d at 632. As both the five-person majority in Jardines and the three-person concurrence drawn from that majority make clear, “The police officers ... conducted a search because they used a ‘device ... not in general public use’ (a trained drug-detection dog) to ‘explore details of the home’ (the presence of certain substances) that they would not otherwise have discovered without entering the premises.” 133 S.Ct. at 1419 (Kagan, J., concurring) (quoting Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 2046, 150 L.Ed.2d 94 (2001)). Justice Kagan, making the privacy argument (as opposed to the premises argument) that the majority in Jardines declined to make, emphasized that the trained forensic dog was a “ ‘sense-enhancing’ tool,” “not ‘in general public use’,” and, for that specific reason, could not be used by the police “to examine a home without a warrant or exigent circumstance.” Id. at 1419-20 (quoting Kyllo, 533 U.S. at 34, 36, 121 S.Ct. at 2043). The concurrence expressly distinguished the use of such a “sense-enhancing tool,” stating, “If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree.” Id. at 1419 n. 2 (citing Kyllo, 533 U.S. at 35 n. 2, 121 S.Ct. at 2043 n. 2, as drawing same distinction). This “bright line” rule invalidated the warrantless search by Sita; but it did not invalidate Officer Arthur’s smelling marijuana coming from the building “from outside the location.” Under the same bright line rule, this human sniff was not a search. See id.

Texas law conforms to the distinction set out in the Jardines concurrence and in Kyllo between the use of a sense-enhancing search device (here, as in Jardines, a trained forensic narcotics canine) to search a location and the use of the ordinary sense of smell of a trained police officer to establish probable cause to obtain a warrant to search the location for contraband. “If an affiant seeking a search warrant attests to the presence of an odor and a magistrate finds the affiant qualified to recognize the odor, this information is considered persuasive in obtaining a warrant.” Davis, 202 S.W.3d at 156; see also Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (holding qualified officer’s smell of contraband is often “evidence of most persuasive character.”). Generally, when a police officer smells marijuana in a location, he has probable cause to search that location. See United States v. Ibarra-Sanchez, 203 F.3d 356, 357 (5th Cir.2000) (once police smelled marijuana in van, they had probable cause to search it); 2 Wаyne R. La-Fave, Search and Seizure: A Treatise on the Fourth Amendment § 3.6(b) (4th ed. 2004). The police officer does not have to set forth in the probable cause affidavit specific qualifications or training for detecting the odor — as long as the magistrate could have reasonably inferred that the officer had past experience with the odor by virtue of his position as a peace officer, that inference is sufficient to show that the officer was qualified to recognize the odor. See Davis, 202 S.W.3d at 156-57.

Davis illustrates a circumstance in which a police officer’s smell of narcotics properly allowed a magistrate to determine that probable cause existed, even when other information in a “far from exemplary” supporting affidavit was insufficient to support probable cause when taken by itself. 202 S.W.3d at 155-57. In Davis, a police officer smelled “a strong chemical odor he has associated with the manufacture of methamphetamine” coming from the defendant’s residence when the officer drove by. Id. at 152. The affidavit also contained information that the investigating officers “received information” from unspecified confidential informants and Crime Stoppers tips that the defendant was making methamphetamine at the residence. Id. While holding that the latter information was insufficient by itself to support issuance of a warrant, the Court of Criminal Appeals held that the fact that the officer smelled the odor of methamphetamine authorized the magistrate to issue the warrant. Id. at 156. The officer who smelled the odor was qualified by virtue of the assertion in the affidavit that he was a patrol officer in the locality in question. Id. The other background information, although unable to support issuance of a warrant by itself, then supported the critical assertion that the officer had smelled methamрhetamine production. Id. at 157. Altogether, the affidavit contained sufficient information within its four corners to support the magistrate’s probable cause determination. Id. at 158.

Likewise, the warrant in this case could have been issued based on the information in the affidavit that Officer Arthur, a trained and experienced narcotics officer, smelled marijuana from outside the residence and that he and the other investigating officers observed behavior consistent with narcotics activity during the surveillance of 412 West Clay following a tip that marijuana was being grown inside the second floor of the premises. Therefore, disregarding the information related to the dog sniff, the remaining statements in the affidavit clearly supported the issuance of the warrant. See Brackens, 312 S.W.3d at 838. Moreover, because the dog sniff information was clearly unnecessary to establish probable cause, McClintock could not have been harmed by the inсlusion in the affidavit of the information that the dog alerted outside his apartment door at the top of the exterior staircase. See Pitonyak v. State, 253 S.W.3d 834, 848 (Tex.App.-Austin 2008, pet. ref'd) (holding that if tainted information is clearly unnecessary to establish probable cause, defendant could not have been harmed by inclusion of tainted information). Accordingly, I would hold that it was not an abuse of discretion by the trial court to deny McClintock’s motion to suppress and to hold that the probable cause affidavit was valid.

Conclusion

For the foregoing reasons, I would affirm ‍​‌​​​‌​‌‌‌‌‌‌​‌​‌​‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​​​‌​‌​​‌​‌‌‍the judgment of the trial court.

Justice KEYES, dissenting.

1 . These additional facts were not relied on by the magistrate to provide probable cause for issuance of the search warrant. They are included here to provide context for Officer Arthur’s affidavit stating that he found McClintock's activities during the surveillance period to be consistent with possible narcotics activity in contrast to the majority's speculation as to what the officers might have observed.

Case Details

Case Name: Bradley Ray McClintock v. State

Court Name: Court of Appeals of Texas

Date Published: Jun 11, 2013

Citations: 405 S.W.3d 277; 2013 WL 2644747; 2013 Tex. App. LEXIS 7124; 01-11-00572-CR

Docket Number: 01-11-00572-CR

Court Abbreviation: Tex. App.