Court of Appeals of Texas, Fifth District, Dallas
Appeal from the Criminal District Court No. 4 Dallas County,
Texas Trial Court Cause No. F12-57322-K
Justices Bridges, Lang-Miers, and Myers
OPINION ON REMAND
State of Texas appealed from the trial court's order
granting appellee Blake Christopher Davis's pretrial
motion to suppress. In a single issue, the State argued the
trial court abused its discretion by granting the motion to
suppress. On original submission, we affirmed the trial
court's judgment. The Texas Court of Criminal Appeals
vacated and remanded for further consideration in light of
its opinion in McClintock v. State, No. PD-1641-15,
2017 WL 1076289 (Tex. Crim. App. Mar. 22, 2017), which had
not been handed down when we issued our original opinion.
Having considered the issue under McClintock's
guidance, we resolve it against Davis and reverse and remand.
March 27, 2012, City of Dallas Police Officer Justin Boyce
submitted an affidavit for a warrant to search (as described
in paragraph one of the affidavit) a residence located at
6130 Menger Avenue, Dallas, Texas:
A single-story, single family residence, constructed of red
brick with red trim. The number "6130" is displayed
in brass colored numbering horizontally over the front
entrance. A garage, constructed with blue-grey wood siding,
is attached to the west side of the structure. The residence
is the sixth structure on the south side of Menger Ave, west
of Elmira Street. The front of the structure faces north.
Said suspected place is located in Dallas, Dallas County,
search warrant affidavit alleged as follows:
On March 27, 2012, I, the affiant, received the following
information from Officer E. Seyl. . ., a fellow Dallas Police
Officer currently assigned to the Central Patrol Division
Crime Response Team: On March 27, 2012, at approximately
10:45 am, Officer Seyl, along with Officers M. Renfro. . .,
C. Humphreys. . ., K. Coates. . ., C. Hess. . ., C. Barnes. .
., and Sgt[.] R. Sartin. . . followed up on a previous call
from the police dispatcher regarding an active drug house
located at 2121 Routh Street #3344. Upon arrival, officers
made contact with the resident who was identified as Smith,
William W/M 5-1-83. Suspect Smith provided verbal consent for
the officers to search his residence. A search of the
residence by M. Renfro. . . revealed marijuana residue in the
toilet. Suspect Smith was then interviewed by Officer Seyl.
Suspect Smith told Officer Seyl he did possess marijuana in
the residence and that he flushed it down the toilet as
officers were knocking on the door. Upon further interview,
Suspect Smith told Officer Seyl that he commonly buys
marijuana at the location described in paragraph #1 which the
suspect described as a "grow house" referring to a
location where marijuana is grown and cultivated. Officers
then went to the location described in paragraph # 1 where
Officer Seyl knocked on the door and received no response.
Officer Humphreys, who was located at the rear of the
structure, detected a strong odor of marijuana emitting from
the residence through the rear door. Officer Humphreys could
also smell marijuana emitting from the east side of the
residence. Officers then notified Detective J. Martinez . . .
who responded with narcotics detection canine
"Reagan." Upon open air search of the exterior of
the residence, canine "Reagan" indicated the
presence of a controlled substance at the front door and at
the east side of the structure. Canine Reagan has been
trained to alert to the presence of marijuana, cocaine,
methamphetamine, and heroin. Canine Reagan has proven to be
reliable and accurate in previous narcotics searches.
The Affiant believes that the residence may contain marijuana
and other evidence that goes along with marijuana trafficking
inside the residence at 6130 Menger Ave in the City of
Dallas, Dallas County, Texas. This is based on the
information provided by Officer E. Seyl. . . .
of Dallas municipal judge signed the search warrant, which
was executed that same day. When they executed the warrant,
police officers recovered a bag containing in excess of five
pounds of marijuana, $6800.10 in United States currency,
marijuana seeds, digital scales, marijuana grow equipment, an
identification card of some type, a checkbook, and mail.
was indicted for possession of marijuana in an amount of
fifty pounds or less but more than five pounds, and he moved
to suppress the evidence seized pursuant to the search
warrant. He argued the police obtained two critical pieces of
information included in the affidavit -- Officer
Humphreys's detection of "a strong odor of
marijuana" through the rear door of the residence and
"the east side of the residence" and the "open
air search of the exterior" by Reagan, the narcotics
detection canine -- during an illegal warrantless search of
the "curtilage" of Davis's residence. This
argument was based on the Supreme Court's then-recent
decision in Florida v. Jardines, 569 U.S. 1 (2013),
which had been handed down after the search warrant was
executed, but before the motion to suppress was filed. The
other essential piece of information in the search warrant
affidavit -- William Smith's statement -- was, according
to Davis, an uncorroborated and unsubstantiated tip that was
insufficient by itself to support a finding of probable
cause. The trial court ultimately granted the motion to
suppress, and the State appealed to this Court.
Jardines, after the police took a drug-sniffing dog
to the defendant's front porch, the dog gave a positive
alert for narcotics at the front door, and this was used as
the basis for a search warrant resulting in the seizure of
marijuana plants found in that house. Id. at 4-5.
The Supreme Court held that the use of the drug-sniffing dog
to investigate the curtilage area "immediately
surrounding and associated with the home" was a search
within the meaning of the Fourth Amendment, and there was
"no doubt" the officers entered that area because
the front porch is the "classic exemplar of an area
adjacent to the home and 'to which the activity of home
life extends.'" See id. at 6-7, 10-12
(quoting Oliver v. United States, 466 U.S. 170, 182
concluded that Jardines invalidated the dog-sniff
portion of the search warrant affidavit and, without its
inclusion, the remaining allegations were insufficient to
provide probable cause. See State v. Davis, No.
05-15-00232-CR, 2016 WL 60574, at *6-7 (Tex. App.--Dallas
Jan. 5, 2016) (not designated for publication), vacated
and remanded, No. PD-0111-16, 2017 WL 4401879 (Tex.
Crim. App. Oct. 4, 2017) (per curiam) (not designated for
publication). We also considered and rejected arguments that
the statutory good faith exception in article 38.23(b) of the
Texas Code of ...