State v. Cuong Phu Le ( 2014 )


Menu:
  • Affirmed and Memorandum Opinion filed April 8, 2014.
    In The
    Fourteenth Court of Appeals
    NO. 14-13-00635-CR
    THE STATE OF TEXAS, Appellant
    V.
    CUONG PHU LE, Appellee
    On Appeal from the 230th District Court
    Harris County, Texas
    Trial Court Cause No. 1369320
    MEMORANDUM OPINION
    The State of Texas charged Cuong Phu Le with felony possession of
    marijuana.1 Appellee filed a motion to suppress evidence on grounds it had been
    seized as a result of an illegal search. The trial court granted appellee’s motion to
    suppress. We affirm.
    BACKGROUND
    1
    See Tex. Health & Safety Code Ann. § 481.121 (b)(4) (Vernon 2010).
    A warrant to search 8603 Jubilee Drive was issued on November 27, 2012.
    The probable cause affidavit supporting the warrant was prepared by Houston
    Police Department Officer Bobby Roberts, a narcotics supervisor with 26 years of
    experience. According to the affidavit, a concerned citizen told Sergeant Robert
    Clark of the Harris County Sherriff’s Department in November 2012 that
    “suspicious activity” was occurring at 8603 Jubilee Drive.          Clark possessed
    extensive training relating to the indoor cultivation and possession of marijuana.
    The concerned citizen told Clark that (1) he never observed furniture being moved
    into the residence and no one appeared to live there; (2) Asian males visited the
    house during the early evening but never stayed long; (3) he had never seen a light
    on in the residence even when the Asian males arrived at night; and (4) one of the
    Asian males drove a black Toyota SUV with Texas license plate numbered
    170HZY. The concerned citizen was a homeowner in Harris County Texas with
    no criminal history.
    The affidavit further states that Clark conducted multiple surveillances on
    the residence between November 6, 2012 and November 13, 2012. Clark observed
    that no lights were visible in the residence other than at the front door and a single
    light at the rear of the first floor. Clark observed that the mini-blinds were tightly
    drawn on every window in the residence on November 6, 2012. Clark learned
    through Centerpoint Energy that the utilities at 8603 Jubilee Drive were listed in
    the appellee’s name.      Clark accessed the Texas Crime Information Computer
    System and learned that appellee listed a different home address than 8603 Jubilee
    Drive on his driver’s license and concealed handgun license. Clark traveled to the
    address listed on the licenses as appellee’s home address and observed the black
    Toyota in the driveway.
    On November 13, 2012, Clark traveled to 8603 Jubilee Drive and walked up
    2
    the front sidewalk of the home to the front door. While standing at the front door,
    Clark smelled what he believed from his training and experience to be raw
    marijuana. While standing on the sidewalk in front of the residence, Clark heard
    the air conditioning running.2
    Roberts conducted surveillance on the residence on November 27, 2012, and
    observed appellee leave the residence in the black Toyota SUV. Hours later,
    Roberts stopped appellee for traffic violations. During the traffic stop, Roberts
    smelled what he believed from his training and experience to be raw marijuana on
    appellee and in the car. The affidavit does not state that marijuana was found in
    the car. Roberts requested the assistance of a Houston Police Department narcotics
    detection dog. An officer and a narcotics detection dog responded to 8603 Jubilee
    Drive.       The dog sniffed the front door and alerted officers to the odor of a
    controlled substance.
    Based on this information, a magistrate issued a search warrant for 8603
    Jubilee Drive. Police executed the warrant and seized 358 marijuana plants from
    inside the residence. A grand jury indicted appellee with the felony offense of
    possession of marijuana on January 14, 2013. Appellee filed a motion to suppress
    the marijuana on May 16, 2013. At the suppression hearing, appellee argued that
    (1) the use of dog sniffs at front doors had been invalidated by Florida v. Jardines,
    
    133 S. Ct. 1409
    (2013); and (2) the remaining evidence in the affidavit was based
    on stale facts that were insufficient to support probable cause.
    The trial court considered the warrant, an affidavit by the arresting officer, a
    memorandum by appellant’s trial counsel, and counsel’s arguments. The trial
    2
    The 2012 affidavit claims that it was 38 degrees Fahrenheit on November 13, 2012.
    However, appellee’s motion to suppress included a weather report for “Houston Hull, Texas,”
    which detailed that on November 13, 2012, the high was 60 degrees Fahrenheit and the low was
    51 degrees Fahrenheit.
    3
    court granted appellee’s motion. This appeal followed.
    ANALYSIS
    In one issue on appeal, the State argues that the trial court abused its
    discretion in granting appellee’s motion to suppress the marijuana seized from the
    Jubilee residence because (1) the magistrate who issued the search warrant was
    acting in good faith in light of existing case law; and (2) even excluding the illegal
    dog sniff, the affidavit established probable cause that appellee was growing
    marijuana. Because the issue of probable cause is dispositive, we address it first.
    I.    Probable Cause
    We review a trial court’s ruling on a motion to suppress under a bifurcated
    standard, giving almost complete deference to the historical facts found by the trial
    court and credibility but reviewing de novo the trial court’s application of the law
    to the facts. State v. McLain, 
    337 S.W.3d 268
    , 271 (Tex. Crim. App. 2011);
    Hubert v. State, 
    312 S.W.3d 554
    , 559 (Tex. Crim. App. 2010). When the trial
    court determines whether there was sufficient probable cause to support the
    issuance of a search warrant, there are no credibility determinations and the trial
    court is constrained to the four corners of the affidavit. 
    McLain, 337 S.W.3d at 271
    . The parties agree that, after Jardines, the use of a narcotics detection dog on
    a residence’s front porch without a warrant is an illegal search that violates the
    Fourth Amendment. See 
    Jardines, 133 S. Ct. at 1412
    . Jardines held that the
    government’s use of a trained police dog to investigate the immediate surroundings
    of Jardines’s home was an unlicensed physical intrusion that amounted to a search
    within the meaning of the Fourth Amendment. 
    Id. Here, the
    affidavit supporting
    the warrant contained evidence of an illegal dog sniff of the front door.
    “‘When a search warrant is issued on the basis of an affidavit containing
    4
    unlawfully obtained information, the evidence seized under the warrant is
    admissible only if the warrant clearly could have been issued on the basis of the
    untainted information in the affidavit.’” Brackens v. State, 
    312 S.W.3d 831
    , 838
    (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (quoting Pitonyak v. State, 
    253 S.W.3d 834
    , 848 (Tex. App.—Austin 2008, pet. ref’d)); State v. Bridges, 
    977 S.W.2d 628
    , 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Thus, if the
    remaining information in the affidavit clearly established probable cause, then the
    warrant is valid. Wright v. State, 
    401 S.W.3d 813
    , 822 (Tex. App.—Houston [14th
    Dist.] 2013, pet. ref’d).
    Probable cause for a search warrant exists if, under the totality of
    circumstances before the magistrate, there is a “fair probability” or “substantial
    chance” that contraband will be found in a particular place. Flores v. State, 
    319 S.W.3d 697
    , 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 
    462 U.S. 213
    ,
    243 n.13 (1983)). As long as the magistrate had a substantial basis for concluding
    probable cause existed, we will uphold that probable cause determination.
    
    McLain, 337 S.W.3d at 271
    . We may not analyze the affidavit in a hyper-technical
    manner and instead should interpret the affidavit in a commonsense and realistic
    manner, deferring to all reasonable inferences that the magistrate could have made.
    
    Id. The State
    argues that the affidavit was supported by probable cause even if
    the evidence of the dog sniff is disregarded. Appellee asserts that the following
    information outlined in the affidavit should not be considered in our determination
    of probable cause: (1) information provided by the concerned citizen; (2) the
    electric account information;3 and (3) the odor of marijuana smelled by Clark on
    3
    Appellee asserts that the electric account information for the Jubilee residence adds
    nothing to a determination of probable cause except that the account is in appellee’s name. We
    agree.
    5
    the front door of the Jubilee residence. After disregarding this evidence and the
    dog sniff, the appellee argues that the remainder of the evidence does not establish
    probable cause.
    A.     Reliability of the Concerned Citizen
    Appellee contends that “the information provided by the ‘Concerned
    Citizen’ should not be considered because there is no indication this person is
    reliable.” Appellee further argues that “when information provided by someone
    whose identity is unknown is used to form the basis of probable cause for a search,
    there must be some information to convey to the court that the unknown person is
    reliable.” Appellee cites Torres v. State, 
    552 S.W.2d 821
    , 824 (Tex. Crim. App.
    1977), to support these assertions.
    The credibility test used in Torres is a vestige of Aguilar v. State of Texas,
    
    378 U.S. 108
    (1964) and Spinelli v. United States, 
    393 U.S. 410
    (1969). In Illinois
    v. Gates, 
    462 U.S. 213
    , 238 (1983), the Court disapproved of the hyper-technical
    rules of these cases in favor of a totality of the circumstances approach. See
    Lockett v. State, 
    879 S.W.2d 184
    , 187 (Tex. App.—Houston [14th Dist.] 1994, pet.
    ref’d). Although the concerned citizen’s tip might be insufficient to establish
    probable cause, it may be considered under our review of the totality of the
    circumstances. See 
    Gates, 462 U.S. at 238
    (“This totality-of-the-circumstances
    approach is far more consistent with our prior treatment of probable cause than is
    any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.”); see
    also 
    Flores, 319 S.W.3d at 702
    (A tip from a confidential informant alleging the
    presence of illegal drugs in the defendant’s residence was a circumstance that
    could be considered along with all of the other circumstances, even though the tip
    itself was insufficient to establish probable cause.) Therefore, we will consider
    this portion of the affidavit.
    6
    B.     Smell of Marijuana from the Front Door
    Appellee asserts that the evidence of the smell of marijuana noted by Clark
    should be excluded because it was obtained in violation of appellee’s Fourth
    Amendment rights. In Jardines, the Supreme Court explained the scope of an
    officer’s permissible actions when approaching a front door, stating, “[t]he knocker
    on the front door is treated as an invitation or license to attempt an entry.”
    
    Jardines, 133 S. Ct. at 1415
    . The invitation or license extended to “solicitors,
    hawkers and peddlers” also extends to law enforcement officers, who are
    accordingly permitted to do as any “‘private citizen’ might do.” 
    Id. at 1415–16.
    Law enforcement officers are permitted “to approach the home by the front path,
    knock promptly, wait briefly to be received, and then (absent invitation to linger
    longer) leave.” 
    Id. at 1415.
    The relevant portion of the affidavit states:
    Clark walked up to the front door of the residence on the front
    sidewalk, which is open to all visitors. While standing at the front
    door of the residence Clark could smell a distinct odor that he knows
    through training and experience in conducting investigations of indoor
    marijuana grows to be that of raw marijuana.
    Nothing in the affidavit suggests that Clark did more than any private citizen might
    do. Thus, we conclude that the evidence of the smell of raw marijuana emanating
    from the front door does not violate the Fourth Amendment. See Jardines, 133 S.
    Ct. at 1419 n.2 (Kagan, J., concurring) (“If officers can smell drugs coming from a
    house, they can use that information; a human sniff is not a search.”).
    Appellee argues alternatively that evidence that Clark smelled raw marijuana
    from the front door of the Jubilee residence on November 13, 2012 is inadmissible
    because the evidence was stale when the warrant issued on November 27, 2012.
    To determine whether the facts supporting a search warrant have become
    7
    stale, we examine the elapsed time between the occurrence of events set out in the
    affidavit and the time the search warrant was issued in light of the type of criminal
    activity involved. McKissick v. State, 
    209 S.W.3d 205
    , 214 (Tex. App.—Houston
    [1st Dist.] 2006, pet. ref’d). The Court of Criminal Appeals has “suggested that
    time is a less important consideration when an affidavit recites observations that
    are consistent with ongoing drug activity at a defendant’s residence.” Jones v.
    State, 
    364 S.W.3d 854
    , 860 (Tex. Crim. App. 2012), cert. denied, 
    133 S. Ct. 370
    (2012).
    The State cites Lockett, and a number of out-of-state cases to support its
    assertion that Clark’s observations were not stale. Lockett v. 
    State, 879 S.W.2d at 188
    . In Lockett, the affidavit in support of a warrant contained information from
    two confidential informants who had known Lockett for several years and
    observed firearms in his residence months before the warrant was executed. 
    Id. at 188.
    This court concluded that the affidavit was not based on stale information
    because the magistrate could have concluded that Lockett had been in possession
    of firearms over an extended period of time which continued until the time the
    warrant was issued.
    Lockett is distinguishable from the case at hand. The affidavit in this case
    does not state that anyone witnessed appellee with illegal contraband. Further, this
    case concerns the possession of marijuana, not illegal firearms. See Kennedy v.
    State, 
    338 S.W.3d 84
    , 98 (Tex. App.—Austin 2011, no pet.) (“[I]llegal weapons
    are not fungible in the same way that drugs are and may be retained for long
    periods of time.”). Thus, because of the transient nature of drugs, the evidence that
    Clark smelled raw marijuana emanating from the Jubilee residence on November
    13, 2012 was stale on November 27, 2012 when the warrant was executed. See
    State v. Griggs, 
    352 S.W.3d 297
    , 303 (Tex. App.—Houston [14th Dist.] 2011, pet.
    8
    ref’d) (“Facts stated in an affidavit must be so closely related to the time of the
    issuance of the warrant that a finding of probable cause is justified at that time.”).
    C.     Totality of the Circumstances
    After disregarding the evidence of the illegal dog sniff and Clark’s
    observations on November 13, 2012, the remaining facts in the affidavit establish:
    (1) “suspicious activity” was occurring at the Jubilee residence; (2) individuals
    only visited the residence on a sporadic basis; (3) the mini-blinds were tightly
    drawn on every window in the residence; (4) the utilities at the residence were in
    appellee’s name; and (5) appellee’s car and person smelled of raw marijuana hours
    after leaving the residence. Under the totality of the circumstances, we conclude
    that the remaining information in the affidavit does not clearly establish probable
    cause that marijuana would be found at the Jubilee residence. See 
    Flores, 319 S.W.3d at 702
    ; Serrano v. State, 
    123 S.W.3d 53
    , 63 (Tex. App.—Austin 2003, pet.
    ref’d) (probable cause not established by (1) an anonymous tip stating that
    defendant was dealing cocaine in Travis County; (2) police records and personal
    observations establishing a tenuous connection between defendant and the
    residence; and (3) the discovery of a plastic bag containing cocaine residue in a
    garbage can outside the residence); see also State v. Bayer, No. 13-13-00008-CR,
    
    2014 WL 586012
    at *4 (Tex. App.—Corpus Christi Feb. 13, 2014, no. pet. h.)
    (mem. op.) (after excluding illegal evidence of a dog sniff, remaining evidence was
    insufficient to support probable cause.).
    II.   Good Faith Exception
    The State alternatively asserts that the evidence of marijuana is admissible
    because the magistrate who issued the search warrant was acting in good faith in
    light of existing case law.
    9
    Evidence obtained by an officer or other person in violation of any
    provisions of the Constitution or laws of the State of Texas, or of the Constitution
    or laws of the United States, shall not be admitted in evidence against the accused
    on the trial of any criminal case. See Tex. Code Crim. Proc. Ann. art. 38.23(a)
    (Vernon 2005).     Article 38.23(b) provides that “[i]t is an exception to the
    provisions of Subsection (a) of this Article that 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.” 
    Id. art. 38.23(b).
    The State did not raise the issue of good faith to the trial court below at the
    suppression hearing. An appellate court may not reverse a trial court’s decision
    based on a legal theory not presented to the trial court. Hailey v. State, 
    87 S.W.3d 118
    , 121 (Tex. Crim. App. 2002); Wade v. State, 
    164 S.W.3d 788
    , 792 (Tex.
    App.—Houston [14th Dist.] 2005, no pet.). Thus, because the State failed to raise
    this defense below, it is procedurally barred from asserting this argument as a basis
    for reversing the trial court’s ruling. State v. Elrod, 
    395 S.W.3d 869
    , 883 (Tex.
    App.—Austin 2013, no pet.).
    CONCLUSION
    Having overruled the State’s sole issue, we conclude that the trial court did
    not err in finding that the magistrate lacked probable cause to issue the search
    warrant of the Jubilee residence. Accordingly, we affirm the trial court’s order of
    suppression.
    /s/    William J. Boyce
    Justice
    Panel consists of Justices Boyce, Christopher, and Brown.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
    10