Opinion
No. 08-14-00215-CR
01-13-2016
ABRAN ELIAS, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the Criminal District Court No. 1 of El Paso County, Texas (TC# 20070D04051) OPINION
In September 2007, Abran Elias was indicted for possession of more than 2,000 pounds of marihuana seized from a van incident to an arrest following a traffic stop and from a home pursuant to a search warrant based, in part, upon a warrantless drug-dog alert. Elias moved to suppress the marihuana in piece-meal fashion, litigating the legality of the traffic stop first and that of the search warrant second. After his years-long efforts on both fronts proved fruitless, he pled guilty in June 2014 to the lesser-included offense of possession of marihuana in an amount greater than 50 pounds but less than 2,000 pounds and was sentenced to three years' imprisonment. On appeal, Elias argues the marihuana seized from the home should have been suppressed because the information contained in the search-warrant affidavit was insufficient to establish probable cause for the search. We disagree and, therefore, affirm.
Elias's efforts to suppress the marihuana seized from the van are the subject of State v. Elias, No. 08-08-00085-CR, 2010 WL 1478909 (Tex.App.--El Paso Apr. 14, 2010), vacated and remanded, State v. Elias, 339 S.W.3d 667 (Tex.Crim.App. 2011), and State v. Elias, No. 08-08-00085-CR, 2012 WL 4392245 (Tex.App.--El Paso Sep. 26, 2012, pet. ref'd).
FACTUAL AND PROCEDURAL BACKGROUND
The Affidavit and Warrant
The affidavit in dispute was executed by El Paso County Sheriff's Officer Ben Perales, a member of the El Paso County Metro Criminal Enterprise Unit, who averred that:
On September 7, 2007 at approximately 1315 hrs, Detectives from the Criminal Enterprise Unit along with the affiant set up surveillance at the Super Target located at 1874 Joe Battle and conducted surveillance. The Affiant and Detectives from the Criminal Enterprise Unit set up surveillance in shopping centers to observe unusual activity like subjects who stay inside cars and subjects who meet with other subjects in front of stores and never enter the store. At approximately 1345 hrs we observed the SUSPECTED PARTY meet with an unknown male subject in front of the Super Target store . . . . The SUSPECTED PARTY was then seen walking towards a Brown Chevrolet Tahoe that was occupied by another unknown male subject . . . . The SUSPECTED PARTY stepped into the passenger seat of the brown Chevrolet Tahoe. Detectives then observed the Brown Chevrolet Tahoe drive off. Detectives then followed the vehicle to the SUSPECTED PLACE (2253 TIERRA ROBLES, EL PASO COUNTY TX). Detectives observed the Brown Chevrolet Tahoe park in the drive way of the SUSPECTED PLACE. Detectives then set up surveillance at the SUSPECTED PLACE and several minutes later Detectives observed the Brown Chevrolet Tahoe pull out of the driveway and a white van pulling out of the garage. The affiant then observed that the Brown Chevrolet Tahoe began following the White Van that was being driven by the SUSPECTED PARTY. The vehicles then drove south on Tierra Robles then made a left turn onto Sombra Fuerte then made a left turn onto Sombra Del Sol. K9-1 Deputy Eduardo Sanchez then conducted a traffic stop on the White Van for failing to signal a right turn onto Zaragosa from Sombra Del Sol. The White Van drove up to The Meridian Apartments located at 2140 N. Zaragosa El Paso County TX. K9-1 Deputy Eduardo Sanchez made contact with the SUSPECTED PARTY and the SUSPECTED PARTY told Deputy Eduardo Sanchez that he had three outstanding traffic warrants. Deputy Eduardo Sanchez then ran the SUSPECTED PARTY for warrant Via Sheriff's dispatch and they were confirmed. Deputy Eduardo Sanchez then placed the SUSPECTED PARTY under arrest for the traffic warrants. Deputy Eduardo Sanchez then ran his K9 partner D'jenno who is certified and trained by the National Narcotic Detector Dog Association to sniff the odor of Cocaine, Marijuana, Methamphetamines and Heroin. K9 D'Jenno then alerted to the odor of narcotics inside the van. After
further investigation two green duffle bags and two cardboard boxes were located inside the containing bricks wrapped in cellophane tape containing a green leafy substance. Based on the Affiant's experience and training Marijuana is usually packed this way. The approximate weight of the green leafy substance was 300 lbs. Based on the observations that Detectives made and observed the van leaving the SUSPECTED PLACE we attempted to conduct a knock and talk at the SUSPECTED PLACE 2253 Tierra Robles to obtain consent to search the residence. Detective Frank Chavez, K9-1 Deputy Eduardo Sanchez and the affiant approached the residence and knocked on the front door after several attempts nobody answered the door. As we were knocking on the front door K9 D'Jenno alerted to the odor of narcotics on the front door. Detectives then secured the residence.The magistrate, finding probable cause to believe marihuana would be found inside the home, issued the search warrant at 5:46 p.m. Pursuant to the warrant, approximately 2,019 pounds of marihuana were seized from the home.
Florida v. Jardines
Nearly six years after the search warrant was issued, the United States Supreme Court held in Florida v. Jardines, --- U.S. ---, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), that police may not use a drug-detection dog to investigate a home and its immediate surroundings without a warrant. Id. at 1416-18. Until then, it was both legal and common practice for law enforcement, including the El Paso County Sheriff's Office, to employ drug-detection dogs in such a manner. See, e.g., Rodriguez v. State, 106 S.W.3d 224, 230 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd)(holding that "use of a drug-dog to sniff for narcotics outside appellant's house was not a 'search' " and that "neither the sniff nor its use to obtain a warrant violated the federal or state constitution"), overruled by Jardines, 133 S.Ct. at 1417-18.
Suppression Hearing
In February 2014, on the strength of Jardines, Elias moved to suppress the marihuana seized from the home. At the suppression hearing, he argued Perales's affidavit was insufficient to establish probable cause for the search because the drug-sniff alert could no longer be considered as part of the probable-cause calculus under Jardines and because, "considering the fact that an illegal traffic stop had occurred," "[t]he search warrant was not based on any good faith reliance...." The prosecutor countered that Jardines should not be applied retroactively and that, even if the dog-sniff evidence were excised from the affidavit, the remaining information in it, notably the seizure of 300 pounds of marihuana from the van, was sufficient to justify the issuance of the search warrant. Citing Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d. 285 (2011), the prosecutor also argued the dog sniff was conducted in good-faith reliance upon previously-binding precedent and, therefore, the good-faith exception to the exclusionary rule ought to apply. At the conclusion of the hearing, the trial judge denied the motion to suppress with explanation:
As the State correctly points out, the record does not contain a written motion to suppress.
The trial judge did not enter written findings of fact and conclusions of law, even though, at the conclusion of the suppression hearing, Elias orally requested their preparation and the trial judge indicated that she would "write ["my facts and findings that I just read into the record"] down if that is your request, for them to be written." See State v. Cullen, 195 S.W.3d 696, 698-700 (Tex.Crim.App. 2006)(requiring trial court to make findings—either written and signed or dictated on the record—when requested by the losing party so as to provide appellate court with a basis upon which to review trial court's application of the law to the facts and to avoid leaving the appellate court in the undesirable position of making assumptions about the reasons for the trial court's decision). Here, as noted above, the trial court explicitly stated its factual findings on the record, as well as the legal authority it relied upon in denying the motion to suppress. By doing so, the trial judge satisfied Cullen's requirement. Further, neither party complains of the trial judge's failure to reduce her oral findings to writing.
But I think right now I have not read any case that indicates that Jardines is retroactive. And I'm not going to rule that it's retroactive. So I believe that at the time, that was the law, and it was followed by the officer, by Detective Perales. I found his testimony to be credible. I also found that the only -- that the canine sniff was not the only basis of the search warrant.
So even if -- I'm sure you'll appeal this, but even if the appellate court says that Jardines is retroactive, I do believe that he didn't base it just on the sniff. I believe his testimony, what I heard him testify to, is the observations at the Target,
the observations outside of the house, the fact that at the traffic stop, after the canine had alerted to the van, they found 300 pounds of marijuana. And I believe that based on that, that was also an important part of the basis of the search warrant.
I'm also going to find that if it's found that Jardines is retroactive, that Detective Perales at that time had a good faith reliance on what the law currently was in 2007. So I'm going to deny the motion to suppress the search warrant -- the basis of the search warrant and the search warrant and the search of the house.
RESIDUAL PROBABLE CAUSE
See McClintock v. State, 444 S.W.3d 15, 18-9 (Tex.Crim.App. 2014)(recognizing the principle of "residual probable cause" as stated in Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App. 1991), overruled on other grounds by Torres v. State, 182 S.W.3d 899, 901-02 (Tex.Crim.App. 2005)).
Elias argues "[t]he trial court erred when it . . . ruled the search is illegal under Jardines, but that Jardines did not apply retroactively" and "found that[,] even if Jardines is retroactive, the good-faith exception applied and the totality of the circumstances gives rise to probable cause." The State concedes the trial court erred in ruling that Jardines does not apply retroactively in this case but contends the marihuana seized from the home should not be suppressed for three reasons:
Because the parties agree Jardines applies retroactively in this case and the outcome of this appeal does not hinge on us expressly addressing Jardines's application, for purposes of this appeal, we assume, but do not decide, that D'Jenno's drug alert may not be considered in this case. Compare Perez v. State, No. PD-0231-15, 2015 WL 4040810, *1 (Tex.Crim.App. July 1, 2015)(unpublished)(expressly directing us to address Jardines's application). Although the State concedes "the new rule of constitutional criminal procedure announced in Jardines applies to the search conducted in this case[,]" at oral argument it relied on Heien v. North Carolina, --- U.S. ---, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014), to argue that Elias's Fourth Amendment rights were not violated by D'Jenno's warrantless drug alert. In Heien, the Supreme Court, affirmed the appellant's conviction for attempted trafficking of cocaine seized during a consensual search following a traffic stop for one functioning brake light, which the officer mistakenly believed was a violation of state law. In affirming, the Court held that the officer's objectively reasonable mistake of law could give rise to reasonable suspicion to detain the appellant because all that the Fourth Amendment demands are "reasonable" searches and seizures. 135 S.Ct. at 535-40. In other words, the officer did not violate the appellant's Fourth Amendment rights by detaining him pursuant to an objectively reasonable mistake of law. Appropriating this reasonable-mistake-of-law standard, the State contends:
[T]he detectives' warrantless use of the narcotics-detection dog, although subsequently and retroactively determined in Jardines to constitute a search requiring a warrant, was nevertheless reasonable (as an objectively reasonable mistake of law) under the reasoning and rationale of Heien and therefore did not violate the Fourth Amendment or any other law. And as there was no violation of the law (specifically, the Fourth Amendment), the exclusionary rule set forth in art. 38.23(a) [of the Texas Code of Criminal Procedure] is not implicated.
(1) because Det. Perales relied in good faith on a search warrant issued by a neutral magistrate based on probable cause, the art. 38.23(b) exception to the exclusionary rule applies; (2) because the sheriff's detectives and deputies conducted the initial warrantless dog-sniff of the exterior of the residence in good-faith reliance on then-binding state law, the subsequent search warrant was not tainted by any unlawfully obtained information, such that the 2,019 pounds of marijuana was not subject to the exclusionary rule; and (3) even if the dog-sniff evidence is excised from the search-warrant affidavit, the remainder of the information in the affidavit was sufficient to establish probable cause to believe marijuana would be found inside the residence.
Standard of Review
When, as here, a search warrant is issued on the basis of illegally-obtained information, we must determine whether the remaining, legally-obtained information clearly establishes probable cause. State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex.Crim.App. 2015). In other words, we must determine from the untainted information in the affidavit whether, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at a specified location at the time the warrant is issued. Id. at 877-78. In making this determination, we would ordinarily give great deference to the magistrate's conclusion. Id. at 876-77. But we may not do so in this case because of the existence of tainted information in the affidavit. Id. Nevertheless, we are still required to read the purged affidavit in accordance with Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Cuong Phu Le, 463 S.W.3d at 876-77. This means we are constrained to the four corners of the affidavit and by our obligation to interpret the affidavit, not in a hyper-technical manner, but in a commonsensical and realistic manner from which reasonable inferences can be drawn. Cuong Phu Le, 463 S.W.3d at 877; State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011).
Discussion
Putting aside D'Jenno's sniff of the home's front door, the remaining independently- and legally-acquired information stated in Perales's affidavit clearly establishes that, under the totality of circumstances, marihuana would be found in the home when the warrant was issued. All of the events depicted in the affidavit took place within a span of a few hours. Perales observed Elias enter the home after being dropped off by a brown SUV and depart five minutes later in a white van driven by him and followed by the SUV. The van, stopped minutes after leaving the home, contained approximately 300 pounds of a substance Perales suspected was marihuana based on his training and experience. Thereafter, knocks on the front door of the home went unanswered. Based on this information, the magistrate could have inferred that Elias was the sole occupant of the home, was transporting the marihuana found in his van from the home, and was attempting to deliver it to a buyer when the traffic stop occurred. Although it could have been possible that Elias took all the marihuana stored in the home when he left, it is at least as likely that the marihuana in the van was just one portion of a larger amount he was storing in the home. In sum, the untainted information in the affidavit, when read in a common-sense and realistic manner, gave the issuing magistrate a substantial basis for concluding that Elias was engaged in the business of selling marihuana stored in the home and, from this, that marihuana similar to that seized from the van could be found in the home.
Elias argues the untainted portions of Perales's affidavit are insufficient to establish probable cause to search the home "[b]ecause Detective Perales testified he observed no criminal activity, called in a pre-textual traffic stop, and relied on a hunch . . . ." But Elias's argument is unavailing for two simple reasons.
First, in arguing that Perales's testimony at the suppression hearing alludes to nothing more than possible criminal activity and is, thus, too unreliable to support probable cause to arrest him, Elias is re-litigating the legality of his traffic stop. This he may not do. Under the doctrine known as the "law of the case," once a question of law in a particular case has been finally resolved, that question will not be reconsidered in subsequent proceedings of the same case. Ware v. State, 736 S.W.2d 700, 701 (Tex.Crim.App. 1987); Ex parte Calvin, 689 S.W.2d 460, 462 (Tex.Crim.App. 1985). As mentioned above, the legality of Elias's traffic has already been resolved against him on direct appeal.
Second, in arguing that Perales's testimony at the suppression hearing alludes to nothing more than possible criminal activity and is, thus, too unreliable to support probable cause to arrest him, Elias is asking us to consider matters outside the four corners of the affidavit. This we may not do. When a reviewing court, including a reviewing trial court, is determining whether probable cause exists to support the issuance of a search warrant, it may consider only the facts found within the four corners of the affidavit; there are no credibility determinations. McLain, 337 S.W.3d at 271; Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992). Thus, we may not consider Perales's testimony at the suppression hearing in determining whether there is probable cause to support the issuance of the search warrant here.
Elias's issue is overruled.
GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE
The State urges us to answer the following question: could it have prevailed by demonstrating that Perales's good-faith reliance on binding pre-Jardines precedent operates as an exception to the federal common-law exclusionary rule and the state exclusionary statute? See Davis, 131 S.Ct. at 2429 (holding that evidence obtained during a search conducted in reasonable reliance on binding appellate precedent is not subject to the exclusionary rule, even if, in another case, search is later determined to be illegal); TEX.CODE CRIM.PROC.ANN. art. 38.23(a), (b)(West 2005)(excluding the admission of evidence obtained by an officer in violation of any federal and state constitutional and statutory provisions unless "officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause"). We decline the State's entreaty. The Court of Criminal Appeals has explicitly stated that we have no obligation to address the good-faith issue, if properly raised, unless the affidavit, purged of its illegally obtained information, fails to clearly establish probable cause. McClintock, 444 S.W.3d at 18-20. As our discussion above demonstrates, we have concluded that the untainted portions of Perales's affidavit sufficiently establish probable cause to search the home.
In McClintock, the good-faith issue was remanded to the First Court of Appeals for its consideration. On remand, our sister court "conclude[d] that the judge-made Davis exception to the judge-made federal exclusionary rule does not create an exception to the Texas exclusionary rule adopted by the Texas Legislature." McClintock v. State, No. 01-11-00572-CR, 2015 WL 6851826, at *1 (Tex.App.--Houston [1st Dist.] Nov. 5, 2015, no pet. h.). --------
CONCLUSION
The trial court's judgment is affirmed. January 13, 2016
YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)
Assuming, as we must, that Jardines applies in this case, the State's reliance on Heien to argue that the exclusionary rule set forth in Article 38.23 is not implicated because Elias's Fourth Amendment rights were not violated is misplaced. The issue in Heien was not about identifying the appropriate remedy for a Fourth Amendment violation based on an objectively reasonable mistake of law. Instead, it was about deciding whether a Fourth Amendment violation occurred based on an objectively reasonable mistake of law. Although the Supreme Court concluded in Heien that the appellant's Fourth Amendment rights were not violated, it reached the opposite conclusion in Jardines, expressly holding that the appellant's Fourth Amendment rights were violated by the very conduct at issue in this case. And, by the State's own acknowledgment, Jardines applies retroactively in this case under Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), because Elias's conviction was not final when Jardines was decided in 2013. See Griffith, 479 U.S. 326-28, 107 S.C.t. at 715-16 (holding that new rules for the conduct of criminal prosecutions apply retroactively to all cases pending on direct appeal when the new rule is announced regardless of whether they constitute a clear break from past precedent).