State v. Michael Eric Rendon , 2014 Tex. App. LEXIS 12936 ( 2014 )

NUMBERS 13-13-00665-CR & 13-13-00666-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
MICHAEL ERIC RENDON, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
OPINION
Before Justices Rodriguez, Garza, and Benavides
Opinion by Justice Benavides
By four issues, which we consolidate into one, the State of Texas appeals the trial
court’s orders granting appellee Michael Eric Rendon’s motions to suppress.1 We
affirm.
1 These cases have been consolidated for the purposes of this opinion on appeal.
I. BACKGROUND
On May 8, 2012, Victoria, Texas police officers conducted a drug investigation at
an apartment complex located on Bingham Street following a confidential informant’s tip.
The police’s target suspect was Rendon, who was a resident of the apartment complex.
Victoria Police Detective Jason Stover and his police-trained dog, Baco, assisted other
officers in the investigation.
Detective Stover testified that Baco initially conducted a warrantless “open-air
sniff” of the exterior of Rendon’s parked vehicle, which was located in the apartment
complex’s parking lot. Following the sniff, Baco exhibited a “positive alert to the
presence of narcotics.” At that point, other Victoria police officers approached
Rendon’s apartment, but Rendon exited his apartment and greeted the officers before
they were able to knock on his apartment door.2
The other officers spoke to Rendon outside of his apartment, and the officers later
advised Detective Stover “by radio” to approach Rendon’s residence with Baco.
Detective Stover and Baco arrived at Rendon’s apartment door, and Baco again
conducted a warrantless sniff of the apartment’s door and “alerted [Detective Stover] to
the odor of illegal narcotics.” After the positive alert, Detective Stover returned Baco to
his police unit and joined the other officers outside of Rendon’s apartment. Police
officers then requested Rendon’s consent to search his apartment, but Rendon declined.
Detective Stover testified that because Rendon declined consent to search his
2 The record establishes that the rectangular building holds four separate apartment units over two
floors. The first two units are located on the ground floor, and the remaining two units are located on the
second floor. A straight continuous staircase leads visitors and residents to the second floor. At the
stairway’s landing, the path splits left and right. Each second-floor apartment has a patio area immediately
in front of its doorway. Rendon’s apartment was located on the left side of the second floor.
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apartment, he applied for a search warrant of Rendon’s apartment and vehicle. In his
search warrant application affidavit, Detective Stover noted Baco’s “positive” alerts to the
odor of narcotics from the “open-air sniff” outside of Rendon’s vehicle, as well as after
sniffing the “bottom left portion” of Rendon’s apartment door. Detective Stover’s
application for the search warrant was granted by a magistrate and executed the same
day.
The record is unclear as to what exactly was seized from Rendon’s vehicle or
apartment following the execution of the search warrant. However, in appellate cause
number 13-13-00665-CR, a Victoria County grand jury indicted Rendon for possession
of marijuana in an amount of five pounds or less but more than four ounces, a state jail
felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through 2013
3d C.S.). In appellate cause number 13-13-00666-CR, the same grand jury indicted
Rendon for money laundering, a state jail felony. See TEX. PENAL CODE ANN. §
34.02(e)(1) (West, Westlaw through 2013 3d C.S.).
After his arrest, Rendon was charged with possession of marijuana and money
laundering and filed a motion to suppress in each respective case. Rendon sought to
suppress, in relevant part, any and all evidence that was seized by the Victoria Police
Department pursuant to the execution of Detective Stover’s search warrant. Rendon
attacked the warrant on Fourth and Fourteenth Amendment grounds, see U.S. CONST.
amends IV, XIV, as well as under Article I, Sections 9, 10, and 19 of the Texas
Constitution. See TEX. CONST. art. I, §§ 9, 10, 19. Specifically, Rendon asserted that
Detective Stover’s affidavit lacked probable cause to support the search and arrest. At
the consolidated suppression hearing, Rendon’s counsel argued that Baco’s sniff of
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Rendon’s apartment door was an unconstitutional search under the Fourth Amendment,
and thus, insufficient probable cause supported the warrant. The trial court agreed and
granted Rendon’s motions.
In its identical orders granting Rendon’s motions to suppress, the trial court issued
findings of fact and conclusions of law and found that Baco searched the “curtilage” of
Rendon’s apartment and that such a search was illegal under the Fourth Amendment,
citing Florida v. Jardines, 133 S. Ct. 1409, 1417–18 (2013). The trial court further
concluded that after excluding the tainted search from Detective Stover’s affidavit, the
remaining information did not establish probable cause to issue a warrant to search
Rendon’s apartment. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art.
44.01(a)(5).
II. MOTION TO SUPPRESS
By one consolidated issue, the State asserts that the trial court erred by granting
Rendon’s motions to suppress.3
A. Standard of Review
We review a trial court’s ruling on a motion to suppress by using a bifurcated
standard of review, where we give almost total deference to the historical facts found by
3 The State presented four issues for our review. For brevity, we will address each of the four
issues under one analysis. See TEX. R. APP. P. 47.1. The State’s original four issues were stated as
follows:
(1) Is the standard of review in this case de novo?
(2) Is the passageway leading up to an apartment part of the common area of the
apartment or part of the curtilage of the apartment?
(3) Did the trial court commit reversible error by finding that [Rendon] had met his burden
to show that the search warrant against him was invalid?
(4) Did the State procedurally default by not asserting that the passageway from the
stairway to [Rendon’s] apartment was not part of the curtilage at the trial level?
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the trial court and review de novo the trial court’s application of the law to those facts.
State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford the same amount of deference to
trial courts' rulings on application of law to fact questions, also known as “mixed
questions of law and fact, if the resolution of those ultimate questions turns on an
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).
A defendant who alleges a violation of the Fourth Amendment has the burden of
producing evidence that rebuts the presumption of proper police conduct. State v.
Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). He may carry this burden by
establishing that the search or seizure occurred without a warrant. Id. The burden
then shifts to the State to prove the reasonableness of the search or seizure. Id.
B. Discussion
We first examine whether Rendon carried his burden to rebut the presumption of
proper police conduct. Rendon argues that the affidavit presented to the magistrate
lacked probable cause because it was based on an unconstitutional sniff by Baco, and
the remaining information in the affidavit was erroneous and insufficient to support a
finding of probable cause.
A magistrate shall not issue a search warrant without first finding probable cause
that a particular item will be found in a particular location. McLain, 337 S.W.3d at 272.
Probable cause exists when, under the totality of the circumstances, there is a fair
probability that contraband or evidence of a crime will be found at the specific location.
Id. When the trial court determines whether probable cause exists to support the
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issuance of a search warrant, there are no credibility determinations; rather, the trial
court is constrained to the four corners of the affidavit. Id. at 271. When reviewing a
magistrate’s decision to issue a warrant, we apply a highly deferential standard because
of the constitutional preference for searches to be conducted pursuant to a warrant. Id.
As long as the magistrate had a substantial basis for concluding that probable cause
existed, we will uphold the magistrate’s probable cause determination. Id.
An evaluation of the constitutionality of a search warrant should begin with the
rule that “the informed and deliberate determinations of magistrates empowered to issue
warrants are to be preferred over the hurried action of officers who may happen to make
arrests.” Id. at 272. When reviewing the issuing magistrate’s determination, we
interpret the affidavit in a commonsensical and realistic manner, rather than a
hypertechnical manner, recognizing that the magistrate may draw reasonable
inferences. Rodriguez v. State, 232 S.W.3d 55, 59–61 (Tex. Crim. App. 2007).
1. Dog Sniff
Rendon first argues that the State lacked probable cause to obtain a search
warrant because the basis for the warrant was an unconstitutional search by Detective
Stover with Baco at Rendon’s door. The United States Supreme Court recently
addressed the constitutionality of the use of drug-sniffing dogs in Florida v. Jardines.
133 S. Ct. at 1414–18. In Jardines, the Court reiterated that “when ‘the Government
obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a
search within the original meaning of the Fourth Amendment’ has ‘undoubtedly
occurred.” Id. at 1414 (quoting United States v. Jones, 132 S. Ct. 945, 950–51 n.3
(2012)). The Jardines Court further noted that when it comes to the Fourth
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Amendment, the home is “first among equals,” because at the Amendment’s “very core,”
stands “the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.” Id. (quoting Silverman v. United States, 365
U.S. 505, 511 (1961)).
Additionally, the United States Supreme Court has recognized that the “curtilage,”
or the area immediately surrounding and associated with the home, is “‘part of the home
itself for Fourth Amendment purposes.’” Id. (quoting Oliver v. United States, 466 U.S.
170, 180 (1984)). The Court noted that “[w]hile the boundaries of the curtilage are
generally ‘clearly marked,’ the ‘conception defining the curtilage’ is at any rate familiar
enough that it is ‘easily understood from our daily experience.’” Id. (quoting Oliver, 466
U.S. at 182, n.12). Utilizing these principles, the Jardines Court upheld the Florida
Supreme Court’s holding that the Miami-Dade Police Department’s use of trained police
dogs to investigate a home and its immediate surroundings was a “search” within the
meaning of the Fourth Amendment that was unsupported by probable cause, rendering
the warrant invalid. See id. at 1417–18; see also Jardines v. State, 73 So. 3d 34, 55–56
(Fla. 2011).
We now turn to the facts of the present case. Detective Stover’s testimony
reveals that he used Baco to conduct a warrantless search of Rendon’s apartment door
at the request of other officers who were speaking to Rendon at the time outside of
Rendon’s apartment. Detective Stover provided no other reason to support the
warrantless search. Rendon argues that this sniff search occurred in the curtilage of his
apartment, and was, thus, unreasonable under Jardines and the Fourth Amendment.
The State argues that because Baco’s sniff occurred in the passageway leading up to
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Rendon’s apartment, it was a “common area” of the apartment complex and not
protected by the Fourth Amendment. We agree with Rendon.
According to Detective Stover’s testimony and affidavit requesting a search
warrant, Baco sniffed the “bottom left portion” of Rendon’s apartment door and indicated
the odor of narcotics “from within” Rendon’s apartment. However, facts from the record
support Rendon’s curtilage argument, including that (1) Rendon’s apartment was the
only apartment on the upper-left side of the building; (2) Rendon’s neighbor, John Crook,
who lives in the apartment on the upper-right side of the building, testified that he hangs
plants along the railing in front of his apartment; and (3) Defendant’s Exhibit 3, a
photograph of Rendon’s apartment building taken from the parking lot, depicts that
Rendon’s downstairs neighbor has chairs in the area immediately in front his apartment
as well. Logically, this means that at the time of Baco’s sniff, Rendon’s door was
closed, and the sniff occurred immediately in front of the apartment’s door. Based on
this record, we conclude that the area immediately in front of Rendon’s apartment is no
different from the front porch of a free-standing home. Thus, bringing a trained police
dog to sniff the bottom left portion of Rendon’s apartment door in hopes of discovering
incriminating evidence exceeded the scope of any express or implied license allowed
under the Fourth Amendment. See Jardines, 133 S. Ct. at 1416 (noting that “the
knocker on the front door is treated as an invitation or license to attempt an entry,
justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”).
The State misplaces its reliance on our sister court’s holding in Evans v. State,
995 S.W.2d 284, 285–87 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) to support its
“common area” argument. We find Evans distinguishable and inapplicable. In Evans,
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the appellant sought to suppress evidence obtained from a search of her apartment on
the basis that officers entered her apartment complex’s common areas in an
unauthorized manner. Id. at 286. The present case does not deal with the common
areas of an apartment complex, as discussed in Evans, such as parking lots and
sidewalks, but rather the curtilage of Rendon’s apartment. Therefore, we hold that
police conducted an unreasonable search by using a trained police dog to investigate the
curtilage of Rendon’s apartment. See U.S. CONST. IV; TEX. CONST. art. I, § 9; see also
Jardines, 133 S. Ct. at 1417–18.
2. Residual Probable Cause
Despite our holding that police conducted an unreasonable search of Rendon’s
home and used the tainted search results to establish probable cause in order to obtain a
search warrant, we must continue our inquiry and “put aside all tainted allegations” to
determine whether the remaining independently acquired and lawful information stated
in the affidavit clearly established probable cause. See McClintock v. State, ___
S.W.3d ___, No. PD–0925–13, at *3 (Tex. Crim. App. Oct. 1, 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)).
In the remainder of his probable cause affidavit, Detective Stover stated that
Victoria police officers conducted a drug investigation at Rendon’s apartment complex
on May 8, 2012. Detective Stover stated that in the parking lot of the complex, Baco
conducted a sniff test upon a parked white Coors Lite Hartman Distributing Chevrolet
HHR and a parked red four-door Cadillac. According to the affidavit, Baco displayed an
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“extreme change in behavior and breathing” when he sniffed the Chevrolet vehicle,
indicating a “positive alert to the odor of narcotics from within.” Detective Stover also
provided the following information in his affidavit:
Prior to [the May 8, 2012] investigation, a confidential informant working
under the direction [sic] purchased a large amount of cocaine from an
individual whose supplier arrived from another location to the buy location.
On the first purchase of cocaine, the supplier showed up in a red 4 door
vehicle. The surveillance vehicle was too far away at this time to make
out the model of the vehicle.
During the second buy, a Hartman Distributing HHR showed up and
supplied cocaine to the “middle man” who in turn was given the money for
the cocaine by the confidential informant.
A license plate was obtained off of the Harman Distributing [sic] by SCU
personnel. Sgt. Jameson contacted the owner of Hartman Distributing
and requested to know who had been driving the vehicle on this date.
The owner advised that Michael Rendon had been driving the vehicle on
the date of the confidential informant’s purchase of cocaine.
Surveillance was conducted on this location following this information
being provided. At this time, SCU personnel learned that Michael Rendon
also owned and operated a red 4 door Cadillac.
After reviewing the four corners of the affidavit “in a commonsensical and realistic
manner,” see Rodriguez, 232 S.W.3d at 59–61, and giving the appropriate deference to
the magistrate, see McLain, 337 S.W.3d at 271, we cannot conclude that the remaining
“independently acquired and lawful information stated in the affidavit” clearly establishes
probable cause to search Rendon’s apartment. After setting aside Baco’s sniff of
Rendon’s apartment door, the remaining allegations contained in Detective Stover’s
affidavit focus on establishing Rendon’s identity and his use of the Chevrolet vehicle to
transport drugs. Nothing in the remainder of the affidavit establishes that under the
totality of the circumstances, there was a fair probability that contraband or evidence of a
crime would be found inside of Rendon’s apartment. See id. at 272. Therefore, we
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conclude that the magistrate did not have a substantial basis for concluding that
probable cause existed to search Rendon’s apartment.
3. Summary
In sum, we conclude that Rendon met his burden to rebut proper police conduct.
Under Jardines, Detective Stover conducted an unreasonable search of Rendon’s home
by entering the curtilage of Rendon’s apartment and using a trained dog to sniff
Rendon’s door to find incriminating evidence. Furthermore, after “putting aside” the
information derived from the dog sniff from the search warrant affidavit, we cannot
conclude that the affidavit clearly established probable cause to search Rendon’s
apartment. Without probable cause, the search warrant was invalid. The State’s sole
issue on appeal is overruled.
III. CONCLUSION
We affirm the trial court’s orders granting Rendon’s motions to suppress.
__________________________
GINA M. BENAVIDES,
Justice
Publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
4th day of December, 2014.
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