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State v. Davis

Court of Appeals of Texas, Fifth District, Dallas

March 29, 2018


          On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F12-57322-K

          Before Justices Bridges, Lang-Miers, and Myers



         The 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.


         On 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, Texas.

         The 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. . . .

         A City 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.

         Davis 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.

         In 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 (1984)).

         We 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 ...

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