Andrea L. Westerfeld
Texas’ strict exclusionary rule has only one narrow exception: for good-faith searches conducted pursuant to a warrant based on a probable cause. But what happens if officers secure a warrant and conduct a good-faith search, but later law invalidates the basis of the warrant? Is an officer’s “good faith” enough if probable cause for the warrant is shaken?
In McClintock v. State, the Court of Criminal Appeals considered this issue and applied the good-faith exception to cases where officers had a reasonable, good-faith belief that the warrant was based on probable cause, even if it wasn’t.
Bradley Ray McClintock lived in an upstairs apartment over a business, which was accessed by a stairway at the back of the building. The police took a drug-sniffing dog to his doorway at the top of the stairs, where it alerted. The dog’s alert was included in a search warrant for McClintock’s home, and the ensuing search turned up a felony amount of marijuana.
At trial, McClintock argued that the dog sniff was illegal because it was an unconstitutional search of the curtilage of his home, but the trial court upheld the search based on existing law. While the case was pending on appeal, Florida v. Jardines came down, tightening the rules on dog sniffs. The appellate court overturned the search, finding that the dog sniff was illegal and without that fact, the search warrant did not contain probable cause.
The State argued to the Court of Criminal Appeals that, even if the dog sniff should have been excluded under Jardines, the officers were still acting in good-faith reliance on a search warrant. Because the police were relying on then-existing precedent that the dog sniff was not an illegal search, the State argued the exclusionary rule should not apply.
Texas’s exclusionary rule
Texas has its own unique exclusionary rule in Article 38.23, one that is in many ways more stringent than the federal rule upon which it is generally based. Under Article 38.23, any evidence that is unlawfully obtained must be excluded. The only exception to this rule is found in Article 38.23(b), holding the rule does not apply if the 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.” This requires four distinct findings: there must be 1) objective good-faith reliance upon 2) a warrant 3) issued by a neutral magistrate that is 4) based upon probable cause. Thus, before the exception can apply, there must be a finding of probable cause. A warrant not based on probable cause will not invoke the rule.
The first three requirements are easily met in this case. The question comes with interpreting the fourth factor. What should be considered in deciding whether there was probable cause? If information in the warrant affidavit came to light only because of an illegal search, does that mean it cannot be considered for determining probable cause? Or should all information in front of the magistrate be considered? In this case, there is no question that the affidavit as a whole held sufficient probable cause to justify a search warrant. It is only if the dog sniff is excluded that the warrant becomes insufficient. Because Article 38.23 does not address—much less resolve—this issue, the CCA turned to federal law.
Federal law and the Texas rule
Federal law may be considered when interpreting the Texas exclusionary rule as long as it is “consistent with” the text of the statue. The CCA looked at a number of federal courts that had attempted to interpret the issue, some under cases very similar to McClintock.
Three Circuits—the Ninth, Tenth, and Eleventh—have un-equivocally declared that the good-faith exception does not apply if the information before the magistrate was illegally obtained. The Second Circuit, by contrast, held that the issuance of a search warrant wholly forgives any previously illegally obtained evidence. But the CCA seemed most persuaded by a more recent Fifth Circuit opinion that, it determined, was an “acceptable synthesis of the federal caselaw” with respect to balancing the fruit-of-the-poisonous-tree doctrine with the good-faith exception to the exclusionary rule.
In United States v. Massi, the Fifth Circuit developed a two-part test. First, the law enforcement conduct that uncovered the previous evidence must have been “close enough to the line of validity” that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information was lawfully obtained. In other words, if it was obvious that the evidence was illegally obtained, a warrant will not cure the defect. Second, the search warrant must have been sought and executed in good faith. The Fifth Circuit later applied this two-part test in a recent decision very similar to McClintock, where the warrant relied on evidence from a dog-sniff that was later invalidated by Jardines. The court concluded that the question of whether the drug dog had invaded the curtilage of the home was “close enough to the line of validity” to support the conclusion that the police acted in good faith in seeking and executing a warrant.
Applying the rule in Texas
The CCA concluded that the Massi rule was consistent with the text of Article 38.23. An officer who included information in a search warrant that he knows or should have known was illegally obtained cannot be said to have acted in good faith. But if the officer believed that the information submitted to the magistrate was lawfully obtained, there is no reason for him to believe that the warrant was invalid. Thus, the CCA adopted the new rule in Texas:
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.
The only remaining question was whether the officers in McClintock acted in good-faith reliance on the search warrant. In other words, was the reliance on the drug dog’s alert “close enough to the line of validity” that officers could reasonably believe it was valid? There was no binding precedent before Jardines that a dog sniff on the curtilage of a home was constitutional—but there was none concluding that it was unconstitutional either. The distinction Jardines made was subtle: A dog sniff is generally legal because people have no reasonable expectation of privacy in possessing illegal substances, but officers cannot intrude upon the curtilage of a home to conduct the sniff. And what constitutes the curtilage in an apartment setting remained contentious until the CCA issued an opinion two years later.
Thus, at the time the officers here performed the dog sniff at the appellant’s apartment, the law was unsettled enough that an objectively reasonable officer could believe the evidence was lawfully obtained. Because the legal question was “close enough to the line of validity” and a search warrant was obtained from a neutral magistrate, the good faith exception of Article 38.23(b) applies.
What does the McClintock decision mean going forward? Most importantly, it does not give police free reign to do whatever they want and clean up the mess with a warrant afterward. The McClintock rule excuses only conduct that is close to the line, so that a reasonable officer would have believed it was legal. (This is an objective, not subjective, test.)
But this decision can come in extremely handy in areas of law that are changing, such as cell phone searches. It will also be useful when either the U.S. Supreme Court or the Texas Court of Criminal Appeals issues a surprising opinion that holds behavior previously widely accepted as unconstitutional or contrary to statute. The bottom line is, if officers reasonably believe that their behavior was lawful at the time and had a magistrate review that behavior and issue a search warrant, the McClintock rule prevents the resulting evidence from being thrown out simply because a later change of law or clarification of murky law.
1 McClintock v. State, __ S.W.3d __, No. PD-1641-15, 2017 WL 1076289, at *1 (Tex. Crim. App. Mar. 22, 2017).
2 Florida v. Jardines, 133 S.Ct. 1409 (2013).
3 McClintock v. State, 405 S.W.3d 277 (Tex. App.—Houston [1st Dist.] 2013).
4 McClintock, 2017 WL 1076289, at *2; Miles v. State, 241 S.W.3d 28, 32 (Tex. Crim. App. 2007).
5 Curry v. State, 808 S.W.2d 481, 482 (Tex. Crim. App. 1991).
6 McClintock, 2017 WL 1076289, at *3-4.
7 Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997).
8 United States v. Vasey, 834 F.2d 782 (9th Cir. 1987); United States v. Scales, 903 F.2d 765 (10th Cir. 1990); United States v. McGough, 412 F.3d 1232 (11th Cir. 2005).
9 United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985).
10 McClintock, 2017 WL 1076289, at *6.
11 United States v. Massi, 761 F.3d 512, 528 (5th Cir. 2014).
12 United States v. Holley, 831 F.3d 322, 326-27 (5th Cir. 2016).
13 McClintock, 2017 WL 1076289, at *7.
14 Id. at *8.
15 State v. Rendon, 477 S.W.3d 805 (Tex. Crim. App. 2015).
16 McClintock, 2017 WL 1076289, at *8.