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McClintock v. State

Court of Criminal Appeals of Texas

March 22, 2017



          Keller, P.J., and Keasler, Hervey, Richardson, Keel and Walker, JJ., joined.


          Yeary, J.,

         This case involves the proper construction of Article 38.23(b) of the Texas Code of Criminal Procedure, the statutory good-faith exception to our statutory exclusionary rule. Tex. Code Crim. Proc. art. 38.23(b). We have reviewed this case once before on discretionary review. McClintock v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014). At that time, we remanded it to the court of appeals to allow that court to address, in the first instance, whether the United States Supreme Court's recent interpretation of the court-made good-faith exception to the federal exclusionary rule in Davis v. United States, 564 U.S. 229 (2011), should have any application in the construction of our own statutory good-faith exception to our statutory exclusionary rule. We observed that a remand was "the proper disposition" of our first discretionary review because the answer was "not remotely clear cut" and "our resolution of the issue . . . would benefit from a carefully wrought decision from the court of appeals." 444 S.W.3d at 20-21. The court of appeals has now issued its opinion. McClintock v. State, 480 S.W.3d 734 (Tex. App.-Houston [1st Dist.] 2015). The State again petitioned this court for discretionary review, which we granted.


         We gave a detailed recital of the facts in our first opinion in this case. McClintock, 444 S.W.3d at 16-17. We need not repeat them to that level of specificity here. Suffice it to say that Appellant lived in an upstairs residence above a business. Access to his residence could be gained through a stairway at the back of the building. Police took a drug-sniffing dog to Appellant's door at the top of that stairway, where the dog alerted to the presence of drugs. This fact was included in a warrant affidavit upon which a warrant to search the residence issued. Charged with possession of a felony amount of marijuana, Appellant filed a motion to suppress the contraband, contending that it had been obtained under a search warrant that was not supported by probable cause. He claimed that the affidavit in support of the search warrant contained illegally obtained information, and that, redacting that information from the warrant affidavit, the remaining information failed to supply probable cause. Specifically, he argued that the police had conducted an illegal search at the door to his apartment using a drug-sniffing dog, and then incorporated that ill-gotten information into the search warrant affidavit. The trial court denied the motion, expressly holding that the police dog had not invaded the curtilage of Appellant's home at the time it alerted to the presence of contraband, and that the use of a drug dog therefore did not constitute a search for Fourth Amendment purposes. Appellant then pled guilty to a reduced charge, preserving his right to appeal the adverse ruling on his motion to suppress.

         While the case was pending on appeal, the United States Supreme Court decided Florida v. Jardines, 133 S.Ct. 1409 (2013). On the strength of that opinion, the court of appeals reversed Appellant's conviction, holding that the canine drug sniff had in fact constituted an unconstitutional search of the curtilage of Appellant's residence, [1] and that, excluding the dog's contraband alert from the search warrant affidavit, there was no probable cause to support the warrant. McClintock v. State, 405 S.W.3d 277 (Tex. App.-Houston [1st Dist.] 2013). The State filed a petition for discretionary review. For the first time, the State argued that, even accepting that the dog sniff was illegal under Jardines, the court of appeals erred to hold that the trial court should have excluded the product of the search warrant. Invoking the Supreme Court's opinion in Davis, the State argued that, because the police relied upon then-binding legal precedent holding that the dog sniff did not constitute a search for Fourth Amendment purposes, they committed no malfeasance and should not have to suffer the exclusion of evidence under either the Fourth Amendment exclusionary rule or the statutory exclusionary rule embodied in Article 38.23(a) of the Texas Code of Criminal Procedure.[2] We remanded the cause to the court of appeals to address this contention in the first instance. McClintock v. State, 444 S.W.3d 15, 20-21 (Tex. Crim. App. 2014).

         On remand, the justices in the court of appeals disputed the proper scope of Article 38.23(b)'s good-faith exception to our statutory exclusionary rule.[3] The majority held that the language of the exception plainly limits its application to "evidence obtained" by virtue of "reliance upon" a "warrant" that is "based on probable cause." McClintock, 480 S.W.3d at 742-44. It observed that the warrant upon which police relied in this case was not supported by probable cause because the affidavit undergirding the warrant contained information that itself was tainted by an illegality. Id. On its face, the majority explained, Article 38.23(b) does not apply to excuse this underlying illegality, and so, the illegally obtained information may not be included in the probable cause calculation. Id. The majority went on to say that, excluding that illegally obtained information from the warrant affidavit, insufficient "probable cause" remained to support the warrant. Id. Therefore, the majority concluded, the good-faith exception embodied in Subsection (b) did not apply, exclusion of the contraband was appropriate under Subsection (a), and the trial court erred in failing to suppress the evidence. Id.

         The dissenting justice disagreed. Id. at 744-54 (Keyes, J., dissenting). She believed it would be just as faithful to the language of the statutory exception to hold that, so long as the illegal conduct that infected the acquisition of the information that went into the warrant affidavit was itself undertaken in good faith, then the evidence was "obtained . . . in good faith reliance upon a warrant . . . based on probable cause[, ]" and evidence obtained pursuant to the warrant need not be excluded. Id. That is to say, so long as the police had a good-faith basis to believe, under binding legal precedent at the time, that they had lawfully obtained the information included in the warrant affidavit, then the exclusionary provisions of Article 38.23(a) should not apply. Id. Such an interpretation, Justice Keyes believed, would bring the statutory exception in line with the Supreme Court's gloss on the federal exclusionary rule announced in Davis. Id.

         We granted the State's second petition for discretionary review in order to resolve this dispute and clarify the reach of Article 38.23(b). Boiled down, the question is this: How should Article 38.23(b) apply, if at all, when the warrant affidavit supplies probable cause but that probable cause appears to be tainted by a prior illegality?


         Statutory Construction

         Prior to the advent of Article 38.23, this Court had recognized no state exclusionary remedy in Texas. Welchek v. State, 93 Tex. Crim. 271, 247 S.W. 524 (1922). We still have not fashioned a judicial exclusionary rule. The scope of the current state exclusionary rule is, therefore, purely a function of our construction of the statute. While Article 38.23 to some extent "mirrors" the federal exclusionary rule, Miles v. State, 241 S.W.3d 28, 32 (Tex. Crim. App. 2007), they are not identical, and we are not free to graft additions or alterations to the statute at our pleasure, in the name of policy, that are plainly inconsistent with the text. The proper scope of Article 38.23(a)'s exclusionary rule is a question of statutory construction. State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996); Wehrenberg v. State, 416 S.W.3d 458, 468-70 (Tex. Crim. App. 2013). The proper scope of any exception to the exclusionary rule, such as Article 38.23(b)'s good-faith exception, is likewise a question of statutory construction. See Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997) ("[W]hether a recognized exception to a federal exclusionary rule also applies to Article 38.23 depends upon whether the exception is consistent with the language of Article 38.23.").

         The Supreme Court's decision in Davis dealt with the good-faith exception to the federal, court-made exclusionary rule. The question in Davis was whether to apply the federal exclusionary rule "when police conduct a search in compliance with binding precedent that is later overruled." 564 U.S. at 232. The Supreme Court concluded that "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Id. at 241. Nothing about Davis's holding with respect to the federal exclusionary rule necessarily dictates how Article 38.23(b) should be construed. Whether Article 38.23(b)'s good-faith exception should apply to the facts of the instant case is purely a question of legislative intent. Consequently, we must decide whether, when the Legislature provided that the good-faith exception should apply only to excuse the illegal acquisition of evidence when the evidence was obtained in reliance upon a warrant "based upon probable cause[, ]" it intended that any information contributing to that probable cause that was itself obtained by police misconduct should be discounted from the probable cause assessment.

         When we construe Article 38.23, as with any statute, "[i]n divining legislative intent, we look first to the language of the statute[, ]" and "[w]hen the meaning is plain, we look no further." Daugherty, 931 S.W.2d at 270. It is plain enough from the language of Article 38.23(b) that, before its good-faith exception to Subsection (a)'s exclusionary rule may apply, there must be (1) objective good-faith reliance upon (2) a warrant (3) issued by a neutral magistrate that is (4) based upon probable cause. With respect to the fourth requirement, we long ago declared that "[t]he plain wording of Art[icle] 38.23(b) requires an initial determination of probable cause." Curry v. State, 808 S.W.2d 481, 482 (Tex. Crim. App. 1991) (citing Gordon v. State, 801 S.W.2d 899, 912-13 (Tex. Crim. App. 1990)); see also George E. Dix & John M. Schmolesky, 40 Texas Practice: Criminal Practice and Procedure § 7.67, at 395 (3d ed. 2011) ("If probable cause is found to be lacking, Article 38.23-although not federal constitutional considerations-requires that the evidence be excluded regardless of whether the officer relying on the warrant believed that it had been issued on facts sufficient for probable cause.").[4]

         Far less plain from the face of the statute is what the legislative intent may have been with respect to what may permissibly go into the assessment of "probable cause."[5] Did the Legislature mean to incorporate nothing more than the common-place definition of that term, namely, that "under the totality of circumstances presented to the magistrate, there is at least a 'fair probability' or 'substantial chance' that contraband or evidence of a crime will be found at the specified location"? Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213 (1983)). There is no question that the totality of circumstances presented to the magistrate in this case, including the results of the canine drug sniff, supplied ample probable cause. Alternatively, did the Legislature's understanding of "probable cause" embrace-as the majority in the court of appeals in this case tacitly assumed-the Fourth Amendment's "fruit of the poisonous tree" doctrine to the effect that illegally obtained information must ordinarily be disregarded in determining whether a warrant affidavit has supplied sufficient information to satisfy this common-place definition of probable cause?[6] In deciding whether a warrant is "based on probable cause" for purposes of implementing Article 38.23(b), is it necessary for a court that is reviewing the magistrate's determination categorically to strike any information in the warrant affidavit that was itself illegally obtained? Does it matter whether the prior illegality was itself subject to a claim that the officer acted in good faith? The federal courts have disagreed about the proper resolution of this issue as a matter of Fourth Amendment jurisprudence.[7] Article 38.23(b) does not expressly address, much less plainly resolve, this complicated question.

         How do we fill the statutory gap? Our approach in the past, at least when confronting the language of Article 38.23(a), has been to assume that the Legislature intended to incorporate any exception to the federal exclusionary rule from the Fourth Amendment case law that we have found to be "consistent with" the statutory language, even if not expressly spelled out there. Baker, 956 S.W.2d at 23. Thus, we have declared the Fourth Amendment doctrines of "attenuation of taint" and "independent source" to apply under Article 38.23(a), because we found them to be consistent with the notion that evidence that fits within either of these doctrines was not "obtained" illegally, as the statute requires as a predicate to exclusion. Johnson v. State, 871 S.W.2d 744, 750-51 (Tex. Crim. App. 1994); Wehrenberg, 416 S.W.3d at 473. By contrast, we found the doctrine of inevitable discovery not to be consistent with the statutory language of Article 38.23(a), because that doctrine assumes that evidence has been "obtained" illegally, and would admit it anyway. Daugherty, 931 S.W.2d at 271. In examining the scope of Article 38.23(b)'s good-faith exception to Article 38.23(a)'s exclusionary rule, therefore, we should similarly inquire whether such principles as have been recognized in the case law construing the scope of the "good-faith" exception to the federal exclusionary rule are accommodated by the statutory language.

         The Good Faith Doctrine and Fruit of the Poisonous Tree

         The United States Supreme Court has already provided clear guidance when it comes to exclusionary-rule issues such as attenuation of taint, [8] independent source, [9] and inevitable discovery.[10] It is a relatively straightforward task for this Court to decide whether Article 38.23 can accommodate those doctrines as definitively articulated by the Supreme Court. But the Supreme Court has yet to address the question of how the fruit-of-the-poisonous-tree doctrine should interact with the good-faith exception established by United States v. Leon, 468 U.S. 897 (1984).[11] The lower federal courts are not entirely of one mind on this question, and it is a challenge to discern exactly what the state of the law is under the federal exclusionary rule.

         The Ninth, Tenth, and Eleventh Circuits have taken a hard line. They seem to have held that Leon's good-faith exception should not apply at all to permit the admissibility of evidence obtained pursuant to a search warrant if the information proffered to the magistrate to supply probable cause was itself obtained, and hence tainted, by some prior illegality.[12] On the other hand, the Second Circuit has ventured to the opposite extreme as the Ninth, Tenth, and Eleventh Circuits, seeming to hold that a prior illegality will always be excused so long as a neutral magistrate ultimately determines there is probable cause.[13] These cases were decided relatively early, however, and it remains to be seen whether these circuits will eventually moderate their views in light of the attitude other circuits have since taken that seem to have carved out various middle grounds.

         In a progression of opinions, the Eighth Circuit has held that the good-faith exception may apply to allow admissibility of evidence deriving from a search warrant that was tainted by a prior illegality-but only if the prior illegality was itself the product of a good-faith mistake on the part of the police, such that the deterrent purpose of the Fourth Amendment exclusionary rule would not efficaciously be served.[14] The First Circuit has held similarly, also noting that the circumstances of the prior illegality were set forth in the warrant affidavit so that the magistrate could judge the legality of the prior warrantless search.[15]

         More recently, the Sixth and Fifth Circuits have weighed in. The Sixth Circuit for the first time explicitly framed the issue as one of how to "reconcile the 'good faith' exception established in Leon . . . with the 'fruit of the poisonous tree' doctrine[.]" United States v. McClain, 444 F.3d 556, 564 (6th Cir. 2005). In McClain, police conducted an illegal protective sweep of a residence, unduly believing that a possible burglary was in progress. A different officer subsequently sought a search warrant for the house, suspecting a marijuana growing enterprise based on information obtained during the illegal sweep. Id. at 560. The Sixth Circuit affirmed the district court's judgment that the initial entry and search were illegal. Id. at 564. It turned next to the question of whether that taint should render the second officer's reliance on the magistrate's issuance of the warrant to be beyond the scope of the good-faith exception. Id. It concluded that "this is one of the unique cases in which the Leon good-faith exception should apply despite an earlier Fourth Amendment violation." Id. at 565. Like the Eighth Circuit in White, the Sixth Circuit found that "the facts surrounding the initial Fourth Amendment violation were 'close enough to the line of validity to make the officer's belief in the validity of the warrant objectively reasonable." Id. at 566 (quoting White, 890 F.2d at 1419). Three other facts also contributed to the court's conclusion. First, there was no indication that the officers were consciously violating the Fourth Amendment when they conducted the illegal sweep of the house, since there had been at least some basis in fact to suggest a burglary might be afoot. Id. Second and third, and "[m]ore importantly, the officers who sought and executed the search warrants were not the same officers who performed the initial warrantless search, and [the] warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding initial warrantless search." Id. All of these circumstances combined to convince the Sixth Circuit that "the Leon exception bars application of the exclusionary rule in this case." Id.

         After canvassing the preceding case law, and drawing heavily on McCain, the Fifth Circuit recently distilled the interplay between the Leon good-faith doctrine and the fruit-of-the-poisonous-tree doctrine in this way:

We adopt the following reasoning . . . as our understanding of the interaction of the doctrine of fruit of the poisonous tree with Leon's good faith exception, as each appl[ies] to evidence obtained as the result of the execution of a search warrant. Two separate requirements must be met for evidence to be admissible: (1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be 'close enough to the line of validity' that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warranted was not tainted by ...

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