Rendon, Michael Eric ( 2015 )

PD-0015-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 3, 2015 Transmitted 3/2/2015 2:17:06 PM
Accepted 3/3/2015 8:02:14 AM
ABEL ACOSTA
NO. PD-0015-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
_______________________________________________
THE STATE OF TEXAS,
Appellant,
v.
MICHAEL ERIC RENDON,
Appellee.
________________________________________________
On Appeal from Cause Number 12-8-26806-D
In the 377th Judicial District Court of Victoria County and
Cause Number 13-13-00666-CR
In the Court of Appeals for the Thirteenth Judicial District of Texas.
________________________________________________
BRIEF FOR THE STATE
STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas
BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
brendan.guy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895
(On Appeal)
Attorneys for the State of Texas
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:
APPELLANT The State of Texas
APPELLEE Michael Eric Rendon
TRIAL JUDGE The Honorable Robert Cheshire
377th Judicial District Court
Victoria, Texas
TRIAL PROSECUTORS James Pink Dickens
State Bar No.05818800
Assistant Criminal District Attorney
205 N. Bridge St. Ste 301
Victoria TX 77901-6576
TRIAL DEFENSE ATTORNEY Edward A. Bartolomei
State Bar No. 01852470
420 Baltimore Avenue
San Antonio, TX 78215
APPELLATE STATE’S Brendan Wyatt Guy
ATTORNEY State Bar No. 24034895
Assistant Criminal District Attorney
205 N. Bridge St. Ste 301
Victoria, TX 77901-6576
APPELLATE DEFENSE Edward Francis Shaughnessy, III
ATTORNEYS State Bar No. 18134500
206 E. Locust
San Antonio, TX 78212
Brief of Appellant ii
Victoria County Criminal District Attorney
No. PD-0015-15
TABLE OF CONTENTS
PAGE (S)
IDENTITY OF PARTIES & COUNSEL ............................................... ii
TABLE OF CONTENTS ....................................................................iii-iv
INDEX OF AUTHORITIES ............................................................... v-vii
STATEMENT OF THE CASE............................................................. 2-3
ISSUES PRESENTED.............................................................................. 3
I. The Court of Appeals finding that the area outside of
Appellee's apartment constituted the curtilage of that
apartment incorrectly decided an important question
of State and Federal law that has not been but should
be settled by the Court of Criminal Appeals ............................... 3
STATEMENT OF THE FACTS .......................................................... 3-6
SUMMARY OF ARGUMENT ............................................................. 6-8
ARGUMENT ........................................................................................ 8-27
I. The standard of review for this case is de novo ........................... 8
II. The Court of Appeals committed reversible error by
applying the wrong legal standard for determining
whether or not the area outside of Appellee’s apartment
constituted an area of curtilage .............................................. 9-21
III. A free air sniff conducted from a common area of an
apartment does not violate a suspect’s Fourth
Amendment rights .................................................................. 21-27
PRAYER .................................................................................................. 28
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SIGNATURE ........................................................................................... 29
CERTIFICATE OF COMPLIANCE ................................................... 29
CERTIFICATE OF SERVICE ............................................................. 30
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Victoria County Criminal District Attorney
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INDEX OF AUTHORITIES
United States Supreme Court Cases
California v. Ciraolo, 476 U.S. 207 (1986) ............................................. 25
Fla. v. Jardines, 133 S. Ct. 1409 (2013) ....... 9, 11-12, 18, 22-23, 26-27
Illinois v. Cabales, 543 U.S. 405, 409 (2005) ............................................ 9
Katz v. United States, 389 U.S. 347 (1967) ....................................... 11, 22
Kyllo v. U.S., 533 U.S. 27 (2001) .............................................. 7, 24-25, 27
Oliver v. U.S., 466 U.S. 170 (1984) ......................................................... 10
United States v Dunn, 480 U.S. 294 (1987) ................................. 10, 13-16
Federal Circuit Court Cases
Horton v. Goose Creek Independent School Dist.,
690 F.2d 470 (5th Cir. 1982) .................................................................... 22
United States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976) ................... 13
Texas Cases
Albro v. State, 502 S.W.2d 715 (Tex. Crim. App. 1973) ...................... 22
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) ................. 8
Chiarini v. State, 442 S.W.3d 318 (Tex. Crim. App. 2014) ................. 17
Evans v. State, 995 S.W.2d 284
(Tex. App. –Houston (14th Dist.) 1999, pet. ref’d) ..................... 10-11, 21
Brief of Appellant v
Victoria County Criminal District Attorney
No. PD-0015-15
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 1992) ...................... 8
Matthews v. State, 165 S.W.3d 104
(Tex. App.-Ft. Worth 2005, no pet) ....................................................... 11
Ochs v. State, 543 S.W.2d 355 (Tex. Crim. App. 1976) ....................... 22
State v. Rendon, 13-13-00665
(Tex. App.-Corpus Christi, Dec. 4, 2014, pet. granted)......................... 3
State v. Rendon, 13-13-00666
(Tex. App.-Corpus Christi, Dec. 4, 2014, pet. granted)............. 3, 13, 16
State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002) .................. 23
State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011)............... 9, 23
Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004).............. 8
Other State Cases
Commonwealth v. Thomas, 358 Mass. 771,
267 N.E.2d 489 (1971) ............................................................................ 12
State v. Nguyen, 2013 ND 252, 841 N.W.2d 676 (N.D. 2013) .............. 12
United States Constitution
U.S. CONST. amend. IV.....................................................9-12, 21-22, 27
Brief of Appellant vi
Victoria County Criminal District Attorney
No. PD-0015-15
Texas Rules
TEX. R. APP. 9.4..................................................................................... 29
TEX. R. APP. 38.1..................................................................................... ii
Brief of Appellant vii
Victoria County Criminal District Attorney
No. PD-0015-15
NO. PD-0015-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
THE STATE OF TEXAS,…………………………………………Appellant
v.
MICHAEL ERIC RENDON,……………………………………...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through its Criminal District
Attorney for Victoria County, and respectfully presents to this Court its brief
on the merits in the named cause.
STATEMENT OF THE CASE
Appellee was charged by indictment on August 2, 2012, in Cause
Number 12-8-26806-D, with one count of money laundering. [CR-I-1]. On
September 13, 2012, the Appellee filed a motion to suppress. [CR-I-2-4].
On June 14, 2013, the Appellee filed two addition motions to suppress.
[CR-I-6-12]. A hearing was held on those motions to suppress on October
30, 2013. [RR-II-1]. On November 26, 2013, the trial court, with the
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Honorable Robert Cheshire presiding, granted the defense motion to
suppress and submitted written findings of fact and conclusions of law
explaining his ruling. [CR-I-13]. The State timely filed its notice of appeal
on December 3, 2013. [CR-I-15-18]. On December 4, 2014, the Thirteenth
Court of Appeals (hereafter Court of Appeals) affirmed the trial court ruling
granting the motion to suppress. State v. Rendon, No. 13-13-00665-CR &
13-13-00666-CR (Tex.App.-Corpus Christi, Dec. 4, 2014, pet. filed). The
Court of Appeals concluded that the narcotics dog sniff in this case occurred
from within the curtilage of Appellee’s apartment and was therefore an
unreasonable search. Id. at 7-9.
ISSUES PRESENTED
I. The Court of Appeals finding that the area outside of Appellee's
apartment constituted the curtilage of that apartment incorrectly
decided an important question of State and Federal law that has
not been but should be settled by the Court of Criminal Appeals.
STATEMENT OF THE FACTS
The State’s first witness at the suppression hearing was Detective
Jason Stover of the Victoria Police Department. [RR-II-7]. Detective
Stover established that he was a trained canine operator, and that his canine
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was properly certified as a drug detection dog. [RR-II-8-14, State’s Exhibit
1]. Detective Stover then stated that he was tasked with investigating
Appellee and confirmed that he did obtain a search warrant to enter
Appellee’s residence as part of that investigation. [RR-II-15; State’s Exhibit
2]. The search warrant was subsequently admitted into evidence. [RR-II-
21].
Detective Stover further testified as to how on May 8, 2012 he went to
Appellee’s residence, an apartment located at 901 Bingham, Apartment C, in
Victoria, Texas, as part of a drug investigation and how his canine, Baco,
alerted on the exterior of the door to the apartment. [RR-II-16-17].
Detective Stover then elaborated about the layout of the apartment
complex, explaining how it is a “four-plex”, with two apartments on the
bottom, two on the top, and the top of the apartment having a common stair
case that splits off into a balcony to the left and the right. [RR-II-18]. He
also described how the apartment had no gates or patios, that the stairway
was open, that the doors to the apartment grounds were open to the public,
and that there were no “no trespassing” signs present on the complex
grounds. [RR-II-18].
Detective Stover went on to describe how, after the investigating
officers were denied consent to search Appellee’s apartment, he left the
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grounds to obtain a search warrant which they subsequently executed. [RR-
II-20].
On cross-examination, Detective Stover agreed there were items of
personal property on the balcony area in front of the apartments on the
second floor. [RR-II-33].
At the conclusion of the State’s case, Appellee called one of his
neighbors, a Mr. John Crook, as a witness. [RR-II-58]. On cross-
examination, Mr. Crook noted that he had the authority to order people off
of the apartment, because he works for the manager. [RR-II-73]. He also
indicated in regards to people walking up the landings in the apartments that
“it’s a free world.” [RR-II-73]. Then on re-cross, when asked by Appellee
if he could keep people from coming to his door, Mr. Crook only indicated
that he could keep people from coming into his home. [RR-II-75].
No evidence was presented during the hearing that Appellee had any
sort of special authority over the area outside his apartment or that he could
exclude other people from that area. [RR-II].
At the conclusion of the suppression hearing, the trial court ruled that
while the stairway leading up to the second floor was a common area, the
court believed that since Appellee’s apartment was the only apartment on the
left side of the stairway the area from the stairway to the apartment was part
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of Appellee’s apartment’s curtilage. [RR-II-81]. The court further held that
that would invalidate the open air sniff of the apartment and without the
evidence obtained as a result of that sniff, the search warrant issued against
the apartment could not stand. [RR-II-81-82].
On November 26, 2013, the trial court issued a written order granting
Appellee’s motion to suppress along with written findings of fact consistent
with the verbal findings it made at the suppression hearing. [CR-I-13].
SUMMARY OF THE ARGUMENT
Since this appeal turns on questions of law, the standard of review for
this case is de novo.
At issue is the validity of the “Plain View/Smell/Touch Doctrine”
when law enforcement makes observations from a lawful vantage point. The
legality of the free air sniff conducted on Appellee’s apartment depends on
whether the investigating officer-canine team was in a common area of the
apartment complex or in a curtilage area when they conducted their free air
sniff. The Court of Appeals decision found the free air sniff was conducted
in a curtilage area. That conclusion was erroneous because the Appellee had
no power to exclude others from the area where the free air sniff was
conducted, a lawful vantage point for law enforcement observations. Based
upon the established standard for determining if a location is a curtilage area,
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the power to exclude others is a necessary prerequisite for an area to be
considered a curtilage area. As such the Court of Appeals erred in
permitting the Appellee to claim the protections of curtilage for an area
where he did not have the power to exclude others.
Nor did Appellee have any other basis to justify suppression of the
free air sniff in this case. There is no reasonable expectation of privacy in
odors emanating from a residence and being observed in a common area
(lawful vantage point). Nor is there a blanket privacy protection for
residences or residences plus a no-observation buffer zone. As such if law
enforcement agents, standing at a lawful vantage point, detect contraband
based on odors emanating from a residence they are entitled to act upon that
information. Nor are officers prohibited from using dogs to conduct free air
sniffs on residences due to the Kyllo decision. Dogs are neither a new nor
restricted technology and thus do not trigger the restrictions set down by
Kyllo. Olfactory observation is not a technology but a sense just as vision
and touch. As such the free air sniff conducted by Detective Stover and
Baco was lawful and the evidence obtained as a result of that sniff should
not have been suppressed. If probable cause includes the totality of facts
known and observed, then with this extension of the law demarcation
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expected by citizens and recognized by law enforcement separates fair
observation from where law enforcement is to see, smell or sense no evil?
ARGUMENT
I. The standard of review for this case is de novo.
An appellate court is required to give almost total deference to the
trial court’s rulings on questions of historical fact and application of law to
fact questions that turn on evaluations of credibility and demeanor. Johnson
v. State, 68 S.W.3d 644, 652-653 (Tex. Crim. App. 1992). However,
application of law to fact questions that do not turn on credibility and
demeanor are instead reviewed de novo. Carmouche v. State, 10 S.W.3d
323, 327 (Tex. Crim. App. 2000). Pure questions of law are likewise
reviewed de novo. Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim.
App. 2004).
There are no factual disputes in this case. Rather the case turns on a
legal question: can a location near a residence be considered a curtilage area
when the resident does not have the power to exclude others from that
location? As such since the critical question is a question of law the
standard of review for this case is de novo.
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II. The Court of Appeals committed reversible error by applying the
wrong legal standard for determining whether or not the area
outside of Appellee’s apartment constituted an area of curtilage.
The United States Supreme Court has established that having a drug
detection dog do an open air sniff within the curtilage of a house is search
for Fourth Amendment purposes. See Florida v. Jardines, 133 S. Ct. 1409,
1417-1418 (2013). However, the Supreme Court has also established that
when drug detection dogs perform open air sniffs in non-constitutionally
protected areas it does not implicate the Fourth Amendment. See Illinois v.
Cabales, 543 U.S. 405, 409 (2005)(holding that an open air sniff on an
automobile as part of a lawful traffic stop does not implicate the Fourth
Amendment.). The same holds true under Texas law as a canine sniff is not
a search so long as the officer conducted the sniff from a place they had the
right to be. See State v. Weaver, 349 S.W.3d 521, 528-529 (Tex. Crim.
App. 2011). As such the legality of the open air sniff of Appellee’s
apartment turns on the legal question of whether Detective Stover and Baco
were in a curtilage area when they conducted the open air sniff. If they were
in a curtilage area then the sniff was an unreasonable search, if not the sniff
was not a search and thus the information obtained from that action could be
used to support obtaining a search warrant for Appellee’s apartment.
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The United States Supreme Court has provided guidance in
determining when a location is in a curtilage area. Notably, while proximity
to the residence is a factor to consider in determining if a location is
curtilage, proximity by itself does not establish that a location is in the
curtilage. Instead the Supreme Court recommended considering four factors
in determining the extent of curtilage: 1) the proximity of the area to the
home; 2) whether the area is within an enclosure surrounding the home; 3)
the nature and uses to which the area is put, and 4) the steps taken by the
resident to protect the area from observation by passersby. United States v
Dunn, 480 U.S. 294, 301 (1987). The Supreme Court cautioned though that
these factors are not to be mechanically applied but rather are to be
employed as analytical tools to get at the ultimate question as to curtilage:
“whether the area in question is so intimately tied to the home itself that it
should be placed under the home’s umbrella of Fourth Amendment
protection.” Id. The central component of this inquiry is “whether the area
harbors the intimate activity associated with the sanctity of a man’s home
and the privacies of life.” See Oliver v. U.S., 466 U.S. 170, 180 (1984);
Dunn, 480 U.S. at 300. And under that strict standard it is understood that
common areas of an apartment are not part of the curtilage. See Evans v.
State, 995 S.W.2d 284, 286 (Tex. App. –Houston (14th Dist.) 1999, pet.
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ref’d); Matthews v. State, 165 S.W.3d 104, 113 (Tex. App.-Ft. Worth 2005,
no pet).
Based upon the Supreme Court’s long established definition of
curtilage it is clear that any analysis of if a location is part of a common area
of an apartment or is a curtilage area must include a threshold determination
of if the apartment dweller has the power to exclude others from that
location. Such a finding is necessary because a party can hardly be said to
have a safe harbor for the “privacies of life” in a location where intruders
can lawfully walk right up to them to observe what they are doing there. A
party simply must have the power to exclude outsiders from an area to be
safe to enjoy the privacies of life in that area, and as such a location where a
person does not have the power to exclude others from cannot be a curtilage
area, no matter how close that location might be to the party’s residence.
Furthermore, the Supreme Court itself has implicitly recognized the
necessity of control over a location to claim it as curtilage, as the majority in
Jardines specifically chose to employ a “property-rights baseline” for
evaluating the Fourth Amendment issue in that case rather than decide the
case on Katz privacy grounds. See Jardines, 133 S. Ct. at 1417; Katz v.
United States, 389 U.S. 347 (1967). The Jardines majority emphasized that
a trespass had occurred against Mr. Jardines and concluded that the open air
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sniff in that case was a violation of the Fourth Amendment because “the
officer’s learned what they learned only by physically intruding on Jardines’
property.” See Jardines, 133 S. Ct. at 1417 (emphasis added). Thus while
property rights are not the sole measure of Fourth Amendment violations, it
does seem clear that at least as far as questions of curtilage it is essential to
have control over the claimed area for it to be your curtilage. If a location is
not yours then that location cannot be your curtilage, and the location is
obviously not yours if you have no authority to exclude others from it.
Other states have already concluded that exclusive control is essential
for establishing the existence of a curtilage zone. The Supreme Court of
North Dakota noted that “the curtilage of an apartment house does not
extend beyond the resident’s own apartment and any separate areas subject
to his exclusive control.” State v. Nguyen, 2013 ND 252, 841 N.W.2d 676,
682 (N.D. 2013)(emphasis added). The Supreme Judicial Court of
Massachusetts held the same and also noted that merely because a tenant has
a right to use a common area does not give him a right of privacy in that
common area because the tenant does not have exclusive control over the
common area. See Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d
489, 491 (1971). Furthermore, at least one Federal circuit court has also
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cited a requirement of exclusive control to establish a curtilage zone. See
United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976).
This requirement of control over a location in order to be able to claim
that location as curtilage is thus both logical and entirely consistent with
established Supreme Court precedent about what it takes to qualify as
curtilage. As such that requirement of exclusive control (i.e. the ability to
legally exclude others from entering or remaining in the area) should be
considered a threshold requirement for establishing a curtilage zone in all
Texas cases.
The Court of Appeals ruling upholding the trial court’s grant of the
suppression motion failed to apply that threshold requirement of control to
its determination of the curtilage question and thus was in error. The Court
of Appeals instead primarily relied upon the fact that Appellee’s apartment
was the only apartment on the upper-left side of the building and on the fact
that other apartment residents at this complex placed objects such as plants
or chairs in the area outside of their apartments to establish the disputed area
as a curtilage area. See Rendon, 13-13-00666 at 8. Neither of those factors
are persuasive in determining the existence of a curtilage area. They
certainly do not support the traditional Dunn factors (under which
Appellee’s only real argument for the disputed area being curtilage is its
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proximity to his apartment). Evidence that Appellee’s apartment was the
only apartment on that side of the stairwell and that other apartment
residents used the space near their apartments to store possessions does not
show that the disputed area was in an enclosure surrounding Appellee’s
residence, that Appellee was utilizing the disputed area for any purpose
closely associated with the home, or that Appellee had taken steps to protect
the area from observation by passersby. See Dunn, 480 U.S. at 301. But
even more critical, the factors cited by the Court of Appeals simply do not
establish Appellee possessed the level of control over the disputed area
necessary to have it qualify as curtilage.
Curtilage is not established merely by having the right to store or
abandon property in an area. After all people frequently store their property
in non-curtilage areas. (Many home owners might choose to keep furniture,
ornaments, lawn implements, a child’s bike or a ball in their front yard or
even in the easement of the street. The decision to do that does not make
those areas part of the home’s curtilage.) Likewise in an apartment context,
an apartment complex could easily allow its tenants to, as an example, grow
flowers in a common area, but that does not mean the botanical tenant would
have the right to tell others legally on the apartment grounds that they cannot
come along and smell those same flowers. Common areas remain common
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to all people lawfully on the apartment grounds regardless of whether some
of your possessions are located in that area or not. It is only when you have
the authority to deny to others the right to enter or remain in an area that you
truly have control over it. Otherwise even though your possessions might be
located in a common area their presence does not deny the right of others to
enter or remain in that same area, and as such merely storing one’s
possessions in an area is insufficient to show that “area harbors the intimate
activity associated with the sanctity of a man’s home and the privacies of
life” which is necessary for a location to be curtilage. See Dunn, 480 U.S. at
300.
Nor can curtilage be established simply by being the only domicile
near a location. The test for curtilage is not and should not be how many
neighbors you have. By analogy, a single home on a cul-de-sac does not
have curtilage interest in an otherwise public roadway. If a person has a
privacy right then they must have that right whether they have one neighbor
or one hundred. That is why the test for curtilage must turn on whether the
resident has exclusive control over the area claimed to be curtilage. If you
do not have the power to exclude others from entering the area then it does
not matter that you are the only apartment located along that passageway.
You still do not have a zone of privacy in that location because the location
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can lawfully be intruded into by others at any time for any lawful reason. It
is only the power of exclusion that truly establishes the degree of control
needed for an area to harbor “the intimate activity associated with the
sanctity of a man’s home and the privacies of life.”
Neither of the grounds cited by the Court of Appeals provides a legal
basis for concluding that Appellee had control over the location from which
Detective Stover and Baco conducted the free air sniff in this case.
Therefore those grounds did not establish the threshold necessary for that
location to be considered curtilage, and it was therefore error for the Court
of Appeals to conclude that area was curtilage.
The Court of Appeals also analogized the passageway leading to
Appellee’s apartment with the front-porch of a free standing home. Rendon,
13-13-00666 at 8. That analogy was flawed because with a porch on a free-
standing home, the home owner has total legal authority to tell intruders to
get off the porch. The porch is on the home owner’s property, under their
exclusive control, and thus the home owner has the same power of exclusion
over the porch that they have over their bed room. Since the home owner
has control over who has access to the area around the porch, it is perfectly
reasonable for the porch to be included within the curtilage of their home (so
long as it also satisfies the other Dunn requirements for being curtilage.)
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By contrast the apartment dweller does not have comparable authority
to tell intruders to depart an apartment passageway even when the
passageway is right outside of their own apartment. Regardless of how close
it runs to their apartment the passageway is still a common area of the
apartment as open to the public as any other common areas of the apartment.
Therefore the apartment dweller has no more authority to tell others to leave
the passageway than they have to tell others to leave the apartment laundry
room. Living in an apartment complex has many advantages, but there are
some draw backs as well, and one of those draw backs is a renter in an
apartment complex generally lacks the same powers of legal exclusion
possessed by a resident of a single resident on a lot with a single residence’s
control. As such renters in apartment complexes cannot claim the same
level of privacy interest in the approaches to their apartments that home
owners can claim in the approaches to their home. A renter’s interest in the
area around their residence is simply not as powerful as an owner’s. See
Chiarini v. State, 442 S.W.3d 318, 322-323 (Tex. Crim. App. 2014) (noting
the lesser legal authority for renters compared to owners.) And if renters
have lesser legal authority over an area than owners, it is only logical they
would not be able to claim the same curtilage rights that a person who
actually owns an area may claim. As anyone with a sibling or roommate
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could attest, communal living simply affords less privacy than solitary
living. The banality of this statement demonstrates further the lack of any
recognized reasonable expectation of privacy.
An example of this difference in authority can be illustrated by
considering the metal detector wielding interloper that Justice Scalia used in
the Jardines case to illustrate the idea of an unacceptable intrusion into the
curtilage. See Jardines, 133 S. Ct. at 1416. A home dweller when
confronted by such an errant treasure hunter who was searching for gold
right next to their front door would be well within their rights to order the
treasure hunter off their property and to have them arrested for criminal
trespass if they did not then depart. The home owner has power of exclusion
over the area around their home and thus can order people out of that area.
An apartment dweller though generally does not have that same
authority. So long as our hypothetical treasure hunter was otherwise on the
apartment grounds legally, and the apartment did not have rules restricting
which common areas visitors could enter, the treasure hunter would have the
exact same right to stand outside an apartment door as the apartment dweller
them self possesses. The apartment dweller could certainly ask the visitor to
leave and could perhaps call the apartment manager and ask for them to
order the treasure hunter away from their front door if the treasure hunter
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refused to depart, but the apartment dweller them self has no intrinsic
authority to order the treasure hunter away or to swear out a criminal
trespass complaint against them if they refuse to leave because the apartment
dweller does not have control of the area of the apartment beyond their front
door. Without the power to exclude others from an area, the apartment
dweller has no more authority over that location than any other person, and
because the apartment dweller lacks any true control over the area beyond
their front door, that area cannot be considered part of the curtilage of their
apartment but instead must be considered a common area of the apartment.
Now obviously there could be situations where an apartment granted
control over the passageways near apartments to their residents and gave
them the authority to exclude others from those passageways, and if that was
done then such an area could constitute curtilage of those apartments, and it
would convey the same protections to its residents that the curtilage area of a
house provides to the home owner. (Apartment dwellers could certainly
negotiate as part of their lease conditions that they be given the power to
exclude others from coming within a certain number of feet from their
apartment, just as they can negotiate for a guaranteed parking space or the
right to keep a pet, or any number of other perks they might value.)
However, there is no evidence in the present case that Appellee had any such
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0015-15
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grant of authority over the area outside his apartment. Quite the contrary: all
the evidence presented at the suppression hearing established that the
apartment dwellers in Appellee’s complex did not have any legal authority
to exclude others from the grounds other than from their own apartments.
Witness Donald Crook, who testified about life at Appellee’s apartment
complex, specifically noted that he had the power to order people off of the
grounds because he worked for the manager. [RR-II-73]. Thus Mr. Crook
made it clear that the authority to exclude unwanted people from the
apartment grounds stemmed not from being a tenant at the complex but
solely as an exercise of authority as an employee of the apartment complex.
Likewise when asked by Appellee if he could keep people from coming to
his apartment’s door, Mr. Crook instead indicated that his authority was only
to keep them from coming into his actual apartment. [RR-II-75]. Thus from
Appellee’s own witness it was clear there was no grant of authority for
tenants at this complex to exclude people from the passageways leading up
to their apartments. Instead the tenant’s authority of exclusion only covered
keeping unwanted visitors from entering into their actual apartments and did
not extend beyond their front doors into the areas outside of their
apartments. Thus since Appellee lacked any control over the space beyond
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0015-15
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his apartment door, that space was part of the common area of the apartment,
which means it cannot be considered a curtilage area.
Allowing people to claim curtilage rights over areas where they do not
have authority over who is allowed to enter or remain would be to radically
expand the curtilage doctrine and would effective eviscerate the Evans
principle that curtilage does not include common areas of apartment
complexes. A curtilage zone is meant to protect only the most intimate
areas of private life. That is a well reasoned standard that balances people’s
interest in being protected in their homes with the public interest in effective
law enforcement. Homes and the areas close to them that are intimately
associated with the home deserve special protection, but areas that are open
to the public do not need and should not be included within that special
protection given to the home. As such the decision by the Court of Appeals
finding a curtilage area over a location where the Appellee did not have the
power to exclude others was plain error and should be reversed.
III. A free air sniff conducted from a common area of an apartment
does not violate a suspect’s Fourth Amendment rights.
Furthermore, since Detective Stover and Baco were not inside a
curtilage area when they conducted their free air sniff, the sniff did not
implicate Appellee’s Fourth Amendment rights. People, not places, are
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Victoria County Criminal District Attorney
No. PD-0015-15
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protected by the Fourth Amendment. Katz, 389 U.S. at 351. As such what a
person knowingly exposes to the public, even in their home, is not subject to
Fourth Amendment protection. Id. Nor can Appellee claim a reasonable
expectation of privacy in odors that emit from his residence. As Justice
Alito argued in his dissent in Jardines, “a reasonable person understands that
odors emanating from a house may be detected from locations that are open
to the public.” Jardines,133 S.Ct. at 1421 (dissenting op.) Moreover, it is
well settled law that a residence, while certainly entitled to substantial
protection, is not exempt from warrantless surveillance from those observing
from a lawful vantage point.
The plain view doctrine allows officers to enter into an apartment or
house when they observe narcotics inside the residence from a lawful
vantage point. See Albro v. State, 502 S.W.2d 715, 716 (Tex. Crim. App.
1973) (police lawfully entered an apartment after observing marihuana
through the open front door); Ochs v. State, 543 S.W.2d 355, 359 (Tex.
Crim. App. 1976) (police lawfully entered a house after observing
marihuana through an open door.) A comparable “plain smell” doctrine has
also been recognized. See Horton v. Goose Creek Independent School Dist.,
690 F.2d 470, 477 (5th Cir. 1982). Texas law does limit the application of
the plain smell doctrine in that an officer is not permitted to make a
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Victoria County Criminal District Attorney
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warrantless entry into a residence based solely on the smell of narcotics. See
State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002). However,
nothing in Steelman prohibits an officer from using lawfully obtained
olfactory observations as probable cause to obtain a warrant, and other
Texas cases acknowledge that probable cause can be obtained from smelling
the odor of suspected contraband. See Weaver, 349 S.W.3d at 527-528.
Furthermore, as already discussed, the Supreme Court considered but
did not adopt a comprehensive expectation of privacy justification for
prohibiting free air sniffs outside of residences. See Jardines, 133 S. Ct. at
1417. Instead the Supreme Court decided the case on property rights
grounds. Id. The property rights approach is a well reasoned method that
balances society’s interest in effective law enforcement with the individual’s
right to be protected against unreasonable search and seizure within his
home.
Adopting Justice Kagan’s proposed approach of prohibiting free air
sniffs on residences under a blanket privacy protection for residences would
effectively destroy the plain view/plain smell doctrine as to private
residences. After all if the police cannot use a canine to make olfactory
observations of a residence from a lawful vantage point then the same logic
would suggest officers cannot use their own sense of smell either. (If a
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Victoria County Criminal District Attorney
No. PD-0015-15
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person has a privacy interest in not having the odors of their home smelled
by others that privacy interest should be the same whether the one smelling
those odors is a man or a dog.) And if an officer is not permitted to use his
sense of smell to determine what is happening inside a residence, then there
is little justification to let him use his vision either (which after all is a far
more intrusive sense than the sense of smell.) The Supreme Court rightfully
declined to adopt this approach, which would provide privacy protection far
beyond that which is reasonable, and Texas should likewise reject Justice
Kagan’s proposed privacy approach. A person cannot claim a reasonable
expectation of privacy in a residence when they reveal to the outside world
by sight, by smell, by hearing, or any other sense that they are keeping
contraband inside their home. As such if an officer is able to detect
contraband (by any sense) from a lawful vantage point, than the officer is
and should be permitted to act upon that information to obtain a warrant.
Now admittedly the Supreme Court has on occasion limited the means
by which police officer’s can conduct observations of private residences
even when the officer is acting from a lawful vantage point. The Kyllo case
saw the Supreme Court disavow the use of thermal imaging technology to
monitor the emissions from a home even though the officers were using the
device from a lawful vantage point. Kyllo v. U.S., 533 U.S. 27, 40 (2001).
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0015-15
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However, Kyllo specifically turned on the fact that the infrared imaging
technology at issue in that case was “not in general public use”, and saw the
majority express concern about leaving the homeowner “at the mercy of
advancing technology.” Id. at 34-35 and 40. The implication is thus
necessarily that with a more widespread and long established technology the
result would have been different, and the search would have been
permissible. That is further supported by the Supreme Court’s earlier
Ciraolo decision which saw the Supreme Court uphold visual observations
of the curtilage of a house made from aircraft flying over the house. See
California v. Ciraolo, 476 U.S. 207, 213-214 (1986). A key part of the
court’s justification for upholding the aerial surveillance in Ciraolo was the
routine usage of aircraft. Id. at 215. Aircraft were a known, common
technology and thus could not be used to unfairly surprise home owners.
Dogs are far more ubiquitous than aircraft. As such if aircraft are
considered sufficiently established technology in general public use to
lawfully support police surveillance operations of a residence then certainly
dogs are also sufficiently long established and in general public use to also
lawfully support such operations. Mankind’s use of dogs is certainly not a
recent innovation nor is the development of human olfactory senses. The
domestication of the dog is believed to have happened approximately 12,000
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Victoria County Criminal District Attorney
No. PD-0015-15
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years ago. See Jardines, 133 S. Ct. at 1420 (dissenting op.) And as for
being in general public use, the American Humane Society estimated that as
of 2012 there were 83.3 million dogs being kept as pets in American homes
with 47% of households having at least one dog. Therefore the dog is
neither novel nor rare as a helper to mankind.
Nor is the use of dogs for police work a new development. As Justice
Alito indicated in his dissenting opinion in Jardines, mankind has used dogs
to augment law enforcement since at least 1318 (proven by the existence of a
Scottish law from that year that made it a crime to disturb dogs that were
being used to track thieves.) Id. at 1424. And even if we limit our
consideration of dogs only to their use in narcotics detection, such
technology is still long established and relatively common. The Dragnet
episode “Narcotics: DR-21” was about the police using drug detection dogs,
and that particular episode aired on January 30, 1969. Therefore assuming
Dragnet was truthful in its claim that its episodes were based on true police
stories, police agencies have utilized drug detection dogs in this country for
at least 45 years. Nor are such animals rare and restricted items. Retired
police dogs are readily available for adoption by the public at large and thus
can be easily obtained by the general public. (Certainly obtaining a retired
drug detection dog is far cheaper and easier to obtain than obtaining an
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Victoria County Criminal District Attorney
No. PD-0015-15
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airplane.) As such, since dogs are both in general public use and have long
served mankind, they do not represent the kind of novel, rare technology
whose use for home surveillance was prohibited by Kyllo, and as such there
is no justification for extending Kyllo to prohibit canine open air sniffs
conducted from a lawful, vantage point. The Supreme Court declined to
adopt such a rule in Jardines and invalidated the open air sniff conducted in
that case because the dog committed a trespass to conduct the sniff not
because the use of the dog itself violated Kyllo. Jardines, 133 S. Ct. at 1417.
The same standard should apply in Texas. Dogs are not a new or rare
technology, and thus Kyllo does not prohibit the use of dogs to conduct open
air sniffs of residences so long as the dog is operating from a lawful vantage
point.
Accordingly, since Appellee lacked a reasonable expectation of
privacy in the odors that emanated from his residence, and since the police
did not utilize a new, unavailable to the general public, technology to detect
those odors, the open air sniff conducted from the common area of
Appellee’s apartment did not violate Appellee’s Fourth Amendment rights.
Therefore the evidence obtained as a result of that open air sniff was
lawfully obtained, and the Court of Appeals ruling to the contrary was in
error and should be reversed.
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Victoria County Criminal District Attorney
No. PD-0015-15
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court reverse the judgment of the Court of Appeals and the trial
court and remand this case to be heard on the merits.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINALDISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
brendan.guy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLANT,
THE STATE OF TEXAS
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0015-15
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CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellant’s Brief submitted on
March 2, 2015, excluding those matters listed in Rule 9.4(i)(3) is 5,758.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
brendan.guy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0015-15
29
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief will be mailed to
Edward F. Shaughnessy, III, 206 E. Locust, San Antonio, Texas, 78212,
Attorney for the Appellee, Michael Rendon, and to Ms. Lisa McMinn, P. O.
Box 13046, Capitol Station, Austin, Texas 78711, State Prosecuting
Attorney, on this the 2nd day March, 2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
brendan.guy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellant
Victoria County Criminal District Attorney
No. PD-0015-15
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