Le, Cuong Phu ( 2015 )

PD-0605-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/14/2015 7:54:31 PM
No. PD-0605-14 Accepted 5/15/2015 12:41:09 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN CLERK
The State of Texas
Appellant
May 15, 2015 v.
Cuong Phu Le
Appellee
On Appeal from Harris County in Case Number 1369320, from
the 230th District Court, the Hon. Jeannine Barr, Judge
Presiding; and the Opinion of the Fourteenth Court of Appeals in
Case Number 14-13-00635-CR, Delivered April 8, 2014
Motion for Rehearing
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Cuong Phu Le, Appellee in the above styled
and numbered cause, and respectfully enters this Motion for
Rehearing, pursuant to Rule 79.2, Tex.R.App.Pro., and would
show the Court that on April 29, 2014, this Court reversed the
actions of the trial court and Court of Appeals in a published
opinion. See State v. Le, _____ S.W.3d _____ (Tex.Cr.App. No.
PD-0605-14; April 29, 2015).
This motion for rehearing is timely filed if presented or post-
marked on or before May 14, 2015. In that regard, Appellee would
show the Court that it should grant rehearing and affirm the
opinion and judgment of the Court of Appeals for the following
reasons:
Based on its holding in McClintock v. State, 444 S.W.3d 15
(Tex.Cr.App. 2014), after excising evidence that a police drug-dog
sniff had been conducted in this case, the Court held that the
“untainted information” in the search-warrant affidavit clearly
established probable cause. The Court reversed the judgment of
the Court of Appeals and remanded the case to the trial court.
State v. Le, slip op. at 15.
The Court also determined that, although the trial court and
Court of Appeals had determined the “untainted information in the
search-warrant affidavit” was stale, Davis v. State, 202 S.W.3d
149, 157 (Tex.Cr.App. 2006)(“Davis II”), “makes clear that
Appellee’s approach is inconsistent” with Illinois v. Gates, 462
U.S. 213, 236 (1983). Appellee asserts that the Court’s analysis
of the instant case, Davis II, and Gates, is incorrect.
The warrant in Davis was a “smell” warrant, based on
information from an officer that he smelled a strong chemical odor
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coming from a residence that he associated with the manufacture
of methamphetamine. Davis v. State, 165 S.W.3d 393, 397 (Tex.
App. - Fort Worth 2005)(“Davis I”). The affidavit submitted did not
include information about the officer's expertise or experience in
recognizing odors associated with methamphetamine
manufacture. There were no details about why the officer thought
it was from that particular house. Additionally, the officer who
swore to the affidavit was not the officer who smelled the
chemicals, he had no personal knowledge of the odor or the
suspected residence, he did not verify the other officer's
observations, and other information provided in the affidavit was
neither verified nor substantiated. Davis I, 165 S.W.3d at 397-
398.
The Court of Appeals averred that while “the veracity of an
officer is presumed if unchallenged, expertise is not
presumed.”Davis I, 165 S.W.3d at 400. Over a dissent which
noted that “common sense and reasonable interpretation” dictate
that the officer (Westervelt) “had enough experience and expertise
that he had previously smelled the same chemical odor and had
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previously associated it with the manufacture of
methamphetamine,” the majority of the Court of Appeals held that
this assumption added information to the affidavit that “is
contained nowhere in it.” Davis I, 165 S.W.3d at 400.
On discretionary review, this Court held that it was not
unreasonable to infer that when a person identifies a smell by
association, he has encountered that odor-causing agent before.
Davis II, 202 S.W.3d at 157.
This is especially so when that person may reasonably be expected to have
had some experience with that kind of odor. For example, if a pilot says,
“That smells like jet fuel,” the natural assumption is that, because he is a
pilot, he has previously encountered jet fuel and recognizes it specifically
by its smell. That is not an unreasonable inference. Neither is the inference
that a police officer in today’s society, with the current prevalence of
methamphetamine, who says that he smells an odor that “he has
associated” with the manufacture of methamphetamine, has previously
come into contact with a methamphetamine laboratory and can recognize
the odor it emits.
Davis II, 202 S.W.3d at 157. Ultimately, the Court stated that it
had examined the affidavit and concluded that the magistrate had
drawn “reasonably available inferences” in finding that it supplied
probable cause. “We hold that the trial court properly deferred to
the magistrate's probable cause determination in this case, and
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did not err to deny the Appellant's motion to suppress.” Davis II,
202 S.W.3d at 157.
Davis II had nothing to do with the question of staleness.
Further, Davis II is not supportive of the Court’s holding in the
instant case, and is not contrary to anything in Gates.
Appellee admits that, under Gates, the reviewing courts are
supposed to provide “great deference” to a magistrate’s
determination of probable cause, and that the review should be
based on a “totality-of-the circumstances approach.”
Nevertheless, to take this to mean that staleness has no place in
a Gates analysis is to read something into the law that is simply
unwarranted. More importantly, this Court has never said the
doctrine of staleness was dead, and, in fact, has addressed
“staleness” cases in the recent past.
The Court was concerned with staleness when it decided
State v. Jordan, 342 S.W.3d 565 (Tex.Cr.App. 2011). There, the
police officer presented his search-warrant affidavit to the
magistrate on June 6, 2008. The magistrate signed the warrant at
3:54 a.m.
5
The officer's affidavit stated that the defendant "committed the
offense of Driving While Intoxicated on June 6, 2008, and then
described the driving and intoxication that constituted elements
of that offense.” Jordan, 342 S.W.3d at 570. The Court noted that
the magistrate “needed to know when the [defendant] was stopped
in order to determine the probability that evidence of an offense
would be found in the [defendant's] blood at the time the warrant
issued,” and the officer should have included the time that he
stopped or arrested the defendant. Jordan, 342 S.W.3d at 570.
The Court nonetheless found that such an omission was not fatal,
because the officer did say that the defendant had committed the
offense on June 6th, so necessarily there was less than a
four-hour interval between the initial stop and the signing of the
warrant at 3:54 a.m. on that same date. Jordan, 342 S.W.3d at
571.
The Court was once again concerned with staleness when it
delivered Crider v. State, 352 S.W.3d 704 (Tex.Cr.App. 2011).
There, the defendant claimed, both at trial and on appeal, that the
search warrant failed to establish "recent" probable cause. The
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affidavit in support of the search warrant stated simply that
Appellant was stopped on June 6 without referencing the time of
day, and the warrant was signed by a magistrate at 1:07 a.m. on
June 7. Crider, 352 S.W.3d at 706.
In an unpublished opinion, the Court of Appeals held that the
search warrant affidavit established probable cause to believe that
evidence of intoxication would be found in Appellant's blood, even
though the officer did not specify when, on the day before he
obtained the search warrant, he had stopped Appellant. PDR was
granted to address whether a search warrant affidavit for blood
must contain the time the DWI arrestee was stopped. Crider, 352
S.W.3d at 705.
Calling Crider a “bookend” case to Jordan, the Court held
that the affidavit in that case was not sufficient to show probable
cause “because there could have been a twenty-five-hour gap
between the time the officer stopped [the defendant] and the time
he obtained the search warrant for blood.” Crider, 352 S.W.3d at
705. Specifically, the Court held that the affidavit lacked sufficient
facts “within the four corners to establish probable cause that
7
evidence of intoxications would be found in [the defendant]’s blood
at the time the search warrant was issued.” Crider, 352 S.W.3d at
705.
Both Crider and Jordan considered and were concerned with
the concept of the staleness of the evidence. Further, both Crider
and Jordan were delivered long after the Court’s decision in Davis
II. Finally, both Crider and Jordan were considered in line with
the “totality-of-the circumstances approach” prescribed by Gates.
In short, staleness is still a viable concern in Fourth
Amendment search warrant cases. The question is, was, and
remains, whether information contained within the four corners
of an affidavit seeking the issuance of a search warrant
demonstrates that the evidence in question would probably be
found at the time the search warrant was issued. Davis II, 202
S.W.3d at 154.1
Judge Alcala delivered a dissenting opinion in this case. State
v. Le, PD-0605-14 (Tex.Cr.App. April 29, 2015)(Alcala, J.,
1
Citing, in footnote, Cassias v. State, 719 S.W.2d 585, 587 (Tex.Cr.App. 1986);
Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App. 1983); and ; Gish v. State, 606
S.W.2d 883, 886 (Tex.Cr.App. 1980).
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dissenting). In that dissent, Judge Alcala noted that there are six
significant problems that occurred in this case:
Î dog-sniff evidence was used as probable cause for this
warrant, but the Supreme Court has now disallowed that type
of evidence in the manner that it was obtained in this case;2
Ï the officer’s expert opinion about the citizen’s tip is
unsupported by the facts;3
Ð the officer’s general statements about high electricity usage
being indicative of a marijuana growing operation are
immaterial to this case;4
Ñ the officer’s general statements about the significance of
supplemental air conditioning are immaterial to this case;5
Ò the vast majority of the information used to sustain the
warrant was stale information obtained about two weeks
before the search warrant was obtained;6 and
Ó there is inadequate information from which to infer that this
was an ongoing marijuana growing operation.7
2
State v. Le, Alcala, J., dissenting, slip op. at 3.
3
State v. Le, Alcala, J., dissenting, slip op. at 3-5.
4
State v. Le, Alcala, J., dissenting, slip op. at 5-6.
5
State v. Le, Alcala, J., dissenting, slip op. at 6-7.
6
State v. Le, Alcala, J., dissenting, slip op. at 7-11.
7
State v. Le, Alcala, J., dissenting, slip op. at 11-12.
9
“Taking these six problems with the search warrant into
consideration, the totality of the facts fail to establish probable
cause for this search.” State v. Le, Alcala, J., dissenting, slip op.
at 2-3.
The six reasons cited by Judge Alcala notwithstanding,
Appellant asserts, without the evidence of the “dog sniff,” the
remaining evidence failed to demonstrate that the requested
evidence would probably be found at the time the search warrant
was issued, because the information in the affidavit was stale.
Additionally, as Judge Alcala has noted, examining the
information in the search warrant in its totality, it fails to establish
probable cause as to the existence of an ongoing indoor
marijuana-grow operation.
The facts show that no one was living in a residence for a
period of anywhere from one to three months; young Asian males
would reportedly visit the residence in the evenings and stay a
short while, but the affidavit includes no information about
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whether they returned at all between the time of the citizen’s tip
and the stop of appellee; no light was emitted from the residence;
on one day of one month, the blinds in the house were tightly
shut, but the affidavit includes no information as to whether the
blinds were shut at any other point in time during the month of
the officer’s surveillance; on one occasion, an officer smelled raw
marijuana outside of the front door of the house; appellee did not
live there but paid the utilities there; and one to two weeks after
those events, on one occasion after he had been there for several
hours, appellee and his car smelled like raw marijuana. According
to the affidavit, evidence of high electricity usage and
supplemental air conditioning units would have been indicative of
an ongoing marijuana-grow operation, but no evidence of either of
these circumstances was included in the affidavit. See Bonds v.
State, 403 S.W.3d 867, 873 (Tex.Cr.App. 2013). Furthermore,
according to the affidavit, daily visits to an indoor marijuana-grow
house are necessary to tend to the plants when someone does not
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live at the residence, but the affidavit then fails to include any
information to show that there were any visits to this location
during the month between the citizen’s tip and appellee’s arrest.
Assuming that all of these facts occurred shortly before the
search warrant was signed, they arguably provide probable cause
to believe that there might be marijuana in the house. The totality
of these facts, however, is inadequate here because there was
about a two-week gap of time between almost all of these facts and
the issuance of the warrant. In short, all of the facts were stale,
except for the smell of raw marijuana on appellee and in his car,
and that smell was inadequate to establish probable cause for the
search of the house.
To overcome the staleness of the facts presented in the
probable-cause affidavit, the affidavit would have had to show
probable cause of an ongoing criminal activity, but it failed in this
respect. As Judge Alcala has noted, in assessing whether
information that might otherwise be stale can support a
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probable-cause determination in light of the existence of an
ongoing and continuous drug enterprise, courts have considered
factors such as confirmation of ongoing drug activity from
confidential informants; the defendant’s prior drug-trafficking
activities; and direct observations by law-enforcement agents
indicating drug-trafficking activity.8
By contrast, here, there was little more than the smell of raw
marijuana at the front door of the house on a single day to suggest
that there was any drug activity at all at that location, let alone a
“long-standing, ongoing pattern of criminal activity.” United
States v. Rojas-Alvarez, 451 F.3d 320, 332 (5th Cir. 2006)
(citations omitted). Omitting the officer’s general observations
about marijuana-grow operations which were unconnected to the
facts of this case and the impermissible dog-sniff evidence, the
remainder of the affidavit contains isolated facts that, even taken
8
State v. Le, Alcala, J., dissenting, slip op. at 13; see FN 1.
13
together, do not amount to probable cause to believe that there
was an ongoing indoor marijuana-grow operation.
Conclusion
All of the events described in the affidavit supporting the
search warrant occurred about two weeks before the warrant was
issued, and the sole event, the smell of raw marijuana on appellee
and in his car, that occurred shortly before the issuance of the
warrant fails to establish probable cause for the search of the
house. Furthermore, the totality of the affidavit fails to establish
probable cause of an ongoing criminal activity which would permit
a court to consider the stale information.
Prayer
WHEREFORE PREMISES CONSIDERED, Appellant prays this
Honorable Court will grant his Motion for Rehearing, reconsider its
rejection of the opinion of the Court of Appeals in this case, and,
on rehearing, affirm the actions of the Court of Appeals and the
trial court in this case.
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Respectfully submitted,
David Michael Ryan
Attorney at Law
6161 Savoy Dr Suite 1116
Houston, Texas 77036
eMail: dmryanesq@hotmail.com
Tel. 713-223-9898
Fax: 713-223-8448
State Bar No. 00786412
John G. Jasuta
Attorney at Law
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
eMail: lawyer1@johngjasuta.com
Tel. 512-474-4747
Fax: 512-532-6282
State Bar No. 10592300
____________________________________
David A. Schulman
Attorney at Law
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
eMail: zdrdavida@davidschulman.com
State Bar Card No. 17833400
Attorneys for Cuong Phu Le
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Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 2,588 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
January 6, 2014, a true and correct copy of the above and
foregoing “Motion for Rehearing” was transmitted via the eService
function on the State’s eFiling portal, to David Ryan
(dmryanesq@hotmail.com), current counsel for Appellee, Bridget
Holloway (holloway_bridget@dao.hctx.net) & Alan Curry
(curry_alan@dao.hctx.net), counsel for the State of Texas, and
Lisa McMinn (lisa.mcminn@spa.state.tx.us), the State’s
Prosecuting Attorney.
______________________________________
David A. Schulman
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