Court of Criminal Appeals
State v. Organ
No PD-0841-24 10/30/25
Issue:
Does the intrusion of a drug-detection dog’s nose through the window of a car during an open-air sniff violate the Fourth Amendment?
Holding:
Yes, in this case. The repeated intrusion of the dog’s nose into a vehicle during an open-air sniff for narcotics amounted to a search without probable cause. Applying the U.S. Supreme Court’s property-based Fourth Amendment principle that it used in two dog-sniff cases (U.S. v. Jones and Florida v. Jardines), the Court concluded that the intrusion of the dog’s nose into the vehicle’s interior violated the Fourth Amendment. The Court rejected the State’s argument that the intrusion was instinctive impulse, not encouraged or facilitated by an officer, and therefore not done for the purpose of obtaining information. “The State is attempting to draw too fine a line, the result of which would be unworkable. The existence of a Fourth Amendment violation cannot turn on the state of mind of the drug-sniffing dog.” Read opinion.
Concurrence (Parker, J.):
“I agree with the Court that the intrusion of a drug-detection dog’s nose through an open window of a car is the sort of intrusion that could implicate the protections of the Fourth Amendment. But I think it is premature to discount the fact that a dog is a living creature that can have a will of its own. Because I think there is a substantial argument that a single, unexpected intrusion by a dog would not trigger Fourth Amendment protections, I would leave resolution of that question for another day. In this case, the dog intruded into the car window three times. After the first intrusion, the officers should have acted to restrain the dog.” Read concurrence.
Dissent (Schenck, P.J.):
“Today’s majority finds a Fourth Amendment violation of a dog’s nose through the open window of a vehicle premised on a theory of common-law trespass and largely without regard to whether the action interfered with Appellee’s reasonable expectation of privacy. This holding is premised on a reading of two Supreme Court decisions and pretermits further inquiry into the question of whether the ‘search’ was reasonable and our understanding of common-law trespass. Because I disagree with the majority’s treatment of both, I dissent.” Read dissent.
Commentary:
As any dog owner knows, dog’s gonna dog. But for the second time in three months, the Court of Criminal Appeals has ruled that the human responsible for the dog is going to be held responsible for the canine’s … doggedness.
In August in Cockrell v. State, the Court ruled that the duty of an owner of dangerous dogs to restrain or secure his dogs can serve as the underlying statutory duty for injury to child by omission. And again in this case, the Court puts the onus on K9 officer Jaks’ handler to control the dog (described in the opinion as “not well trained,”—but probably still a good boy—with photos on pages 5 and 6 of the opinion showing his eagerness to put his nose in the car window).
In addition to citing the Supreme Court’s dog-sniff decisions in Jones and Jardines, the court also relied upon one of its own 1976 decisions in Smith v. State, in which the court held that an officer could not lean into a vehicle without that action becoming a search. The idea is that an officer cannot permit a K-9 to do what an officer could not do himself. The majority expressly did not rely upon the defendant’s expectation of privacy, which is another basis for addressing a defendant’s claim of an illegal search in violation of the Fourth Amendment. As a result of this decision, K-9 handlers will need to restrain their dogs from venturing too far into a vehicle or risk having the evidence excluded.
Brimzy v. State
No. PD-0101-25 10/30/25
Issue:
Does the failure-to-pay statute (CCP Art. 42A.751(i)) apply to adjudication proceedings where the State alleges nonpayment and additional non-monetary grounds, but the trial court adjudicates solely on the nonpayment ground?
Holding:
No. Article 42A.751(i) requires the State to prove a probationer’s ability to pay and failure to pay court costs and fees only if nonpayment is the sole ground alleged by the State in an adjudication/probation revocation proceeding. “Here, the motion to adjudicate alleged grounds in addition to Appellant’s nonpayment of supervision fees; indeed, the State pursued those additional grounds in the revocation/adjudication hearing. Under these circumstances, Art. 42A.751(i) does not assign an additional burden of proof to the State—even where, as here, the trial court ultimately ordered adjudication based on the nonpayment ground alone.” Read opinion.
Commentary:
This decision resolved a split among the courts of appeals about how the construe the statute—whether the statute applies when the trial judge’s only finding in support of revocation or adjudication is the failure to pay, or whether the statute applies when the State’s only allegation is the failure to pay. The majority conducted an extensive historical analysis of the statute to reach its holding. The State will now have to comply with the statute only when failure to pay is the sole allegation in the State’s motion to revoke or adjudicate.
Texas Attorney General Opinions
No. KP-0501 10/29/25
Issue:
May a district or county court-at-law judge forbid a district attorney or assistant district attorney from carrying concealed firearms in courtrooms under Penal Code §46.15(a)(6) and (a)(7)?
Conclusion:
No. “While the judiciary possesses broad authority over courtrooms, that authority does not license a categorical prohibition on lawful forms of concealed carry by individuals—[such as] district attorneys and their assistants—who are expressly exempted from Texas Penal Code §§46.02 and 46.03.” Read opinion.
Requested by:
Glen Harwood, 142nd Judicial District Attorney
Commentary:
On paper, this is a win for all the prosecutors with LTCs who want to carry in the courtrooms in which they must work. And not just them, but by extension, any other professionals listed in Penal Code §46.15(a)—including peace officers, probation and parole officers, court clerks, and (ahem) the Attorney General and his lawyers who authored this opinion. Equally important may be what this opinion did not say. The author(s) showed admirable restraint in declining to answer other, tangential questions that could have opened up entirely different cans of worms. Meanwhile, prosecutors who are considering how to take advantage of this opinion might be wise to recall that old adage that just because you can do something doesn’t mean you should do it. Carefully weigh the practical consequences of your decision to carry in a courtroom because—to shoehorn another truism into this fact pattern—a judge might no longer be able to make you leave your pistol back in the office, but he can still make you wish you had left it there.