Texas finally adopts the Davis good faith exception to its statutory exclusionary rule to a pre-Jardines dog sniff in a wide ranging and scholarly opinion surveying all the federal circuits on Davis and attenuation. McClintock v. State, 2017 Tex. Crim. App. LEXIS 291 (March 22, 2017):
Two years later, after the court of appeals issued its opinion in this case, the Fifth Circuit reiterated the holding in Massi, applying it to facts strikingly similar to those in this case to uphold the admissibility of evidence under the good-faith exception. In United States v. Holley, 831 F.3d 322, 326-27 (5th Cir. 2016), police used a drug-sniffing dog to detect the odor of illegal drugs at the garage door of two residences, and when the dog alerted, they obtained warrants to search those residences based upon the alert. Id. at 324. The defendant argued that the warrants were tainted under Jardines, and that the Leon good-faith exception therefore could not apply. Id. at 326. The Fifth Circuit found this argument to be foreclosed by Massi, and held that the question of whether a drug-dog sniff at the garage door was an unconstitutional invasion of the curtilage was “close enough to the line of validity” to support the conclusion that the police had acted in objective good faith in relying on the canine alerts to supply probable cause for the warrants. Id. at 326-27. We regard the Fifth Circuit’s pronouncement in Massi to be an acceptable synthesis of the federal case law with respect to the appropriate interplay between the fruit-of-the-poisonous-tree doctrine and the good-faith exception to the federal exclusionary rule. The question for us in this case, then, is whether the language of Article 38.23(b) will accommodate it. We hold that it does.
Article 38.23(b)
Article 38.23(a)’s exclusionary rule does not apply when the challenged “evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” Tex. Code Crim. Proc. art. 38.23(b). An officer who has included information in a search warrant affidavit that he knows—or should know—to be illegally obtained cannot be said, we think, to have acted in good-faith reliance upon any warrant that may issue that depends for its probable cause upon that tainted information. Thus, the language of the statutory exception is broad enough to embrace the fruit-of-the-poisonous-tree doctrine. It is also broad enough, we conclude, to accommodate a corollary: An officer who reasonably believes that the information he submitted in a probable cause affidavit was legally obtained has no reason to believe the resulting warrant was tainted. In executing the warrant, that officer “act[s] in objective good faith reliance upon” the warrant, as long as the warrant is facially valid. Thus understood, the language of Article 38.23(b) is “consistent with” application of good-faith principles to excuse a prior illegality, and thus render an officer’s reliance on a neutral magistrate’s assessment of probable cause objectively reasonable. Baker, 956 S.W.2d at 23.
Accordingly, we hold that the good-faith exception of Article 38.23(b) will apply when “the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant [was] ‘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 warrant was not tainted by unconstitutional conduct[.]” Massi, 761 F.3d at 528. We turn now to the question of whether the officers in this case operated sufficiently close to the line of validity in conducting the drug sniff that they “act[ed] in objective good faith reliance” on the magistrate’s probable cause determination in issuing the warrant.
The Canine Drug Sniff
Consistent with Jardines, the dog sniff that was conducted without a warrant in this case unquestionably violated the Fourth Amendment. To the extent that Jardines adopted a new constitutional rule, that new rule would apply retroactively to any case pending on direct appeal at the time of its decision, as this case was. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Since Jardines, this Court has held that it constitutes a Fourth Amendment violation to conduct a warrantless drug sniff at the front door of an apartment in a multi-dwelling complex because it constitutes an invasion of the curtilage of the home. State v. Rendon, 477 S.W.3d 805, 811 (Tex. Crim. App. 2015). Because we ordinarily follow federal rules of retroactivity, e.g., Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013), we should likewise apply the holding in Rendon to this case, consistently with Griffith.
In short, there can be little question at this juncture that the drug sniff in this case, occurring at the door of Appellant’s single-dwelling upstairs apartment, was perpetrated through an unconstitutional invasion of the curtilage of his home. To the extent that the drug dog’s positive alert for drugs was incorporated into the search warrant in this case, the warrant affidavit was unquestionably tainted with a prior illegality. Moreover, we have already held that, absent the information gained from the illegal drug-dog sniff, the warrant affidavit failed to establish probable cause. McClintock, 444 S.W.3d at 19-20.
With that information included, however, the warrant affidavit amply supports a determination by a neutral magistrate that there was probable cause to search the apartment for contraband. So the question under Article 38.23(b), as we have construed it, becomes: Did the officers have an objective good-faith basis to believe that their use of a drug dog would not adversely affect the validity of the warrant? The answer depends upon how “close to the line of validity” their use of the trained drug dog was. In the instant case, we think it was close enough to declare that the officers acted in good-faith reliance on the warrant.
It is true that there was no binding precedent prior to Jardines that held that a canine drug sniff conducted on the curtilage of a home was constitutional. Thus, Jardines did not overrule anything, as was the situation in Davis. Nevertheless, even after Jardines was decided, binding precedent continues to hold that—at least in the abstract—the use of a trained canine to detect the presence or absence of illicit narcotics does not constitute a “search” for Fourth Amendment purposes. Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). This is because drug dogs detect only illegal substances, and citizens lack any reasonable expectation of privacy in possessing illegal substances. Id. at 409. Only when the drug-sniff is conducted in the course of a warrantless invasion of the curtilage of a home does it constitute an unconstitutional search for Fourth Amendment purposes. But the Supreme Court did not make this distinction crystal clear until Jardines itself. And the distinction remains a subtle one. Indeed, even after Jardines was decided, the question of what exactly constitutes curtilage in an apartment setting, as opposed to a stand-alone house, remained a close and contentious issue for this Court in deciding Rendon.
At the time the officers in this case used the trained canine to sniff for drugs at the door of Appellant’s apartment, the constitutionality of that conduct remained “close enough to the line of validity” for us to conclude that an objectively reasonable officer preparing a warrant affidavit would have believed that the information supporting the warrant application was not tainted by unconstitutional conduct. Because the language of Article 38.23(b) accommodates the Massi good-faith standard, we hold that the officer’s subsequent search of the apartment was executed “in objective good faith reliance” on the warrant. The fruit of that search is therefore excepted from Article 38.23(a)’s exclusionary rule. Ultimately, the trial court did not err to overrule Appellant’s motion to suppress.
