United States v. James Holley, Jr.

Case: 15-40360 Document: 00513612174 Page: 1 Date Filed: 07/27/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40360 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, July 27, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
JAMES CECIL HOLLEY, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury convicted Appellant James Cecil Holley, Jr. of conspiracy to
commit a drug trafficking crime, felon in possession of a firearm, and
possession of a firearm in furtherance of a drug trafficking crime. Holley now
challenges all three convictions, and we AFFIRM.
I.
On March 6, 2008, Officer Travis Putman received information from a
confidential informant that Holley was distributing large quantities of
marijuana in the Dallas area. Putman conducted a records search and
determined that Holley was associated with a house located at 6203 Gray Wolf
Trail. A different officer traveled to the house on two separate occasions and
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used a trained canine to “conduct[] a free-air sniff of . . . [the] garage door.” On
both occasions, the dog “alerted to the presence of the odor of an illegal drug
while sniffing the garage door.” Based largely upon the canine alerts, Putman
sought and received a search warrant for the Gray Wolf Trail house. During
the search, officers discovered $9,990 in cash, a money counter, digital scales,
ten pounds of marijuana, a marijuana seed, two trays of drying marijuana, a
Heckler and Koch (“H&K”) .45 caliber handgun, two loaded magazines, a drug
ledger, and a utility bill for a house on Winterwood Lane in the name of Justin
Dismore. Holley was present at the time of the search and seated a short
distance from the handgun.
After locating the utility bill, officers began to investigate the house on
Winterwood Lane. As with the Gray Wolf Trail house, an officer traveled to
the Winterwood Lane house and used a trained canine to conduct a “free-air
sniff” of the “garage door.” The dog again “alerted to the presence of the odor
of an illegal drug while sniffing the garage door.” Based upon this alert and
the utility bill found at the Gray Wolf Trail house, the officers obtained a search
warrant for the house on Winterwood Lane. That search resulted in the
discovery of a large hydroponic marijuana cultivation operation, 263
marijuana plants, and evidence linking Holley to the house. In 2009,
investigators searched two other houses connected with Holley, one on
McShann Road and one on Harvest Hill Road. Holley and Blake Huggins were
present when officers executed the search warrant for the McShann Road
house. Inside the house, officers discovered another hydroponic marijuana
cultivation operation, 273 marijuana plants, 16 bags of hydroponic marijuana
(with a total weight of around 11 pounds), a digital scale, a drug ledger,
evidence that Holley was living there, a utility bill for the property in the name
of Louis Lee, and a sales receipt in Lee’s name. During the search of the
Harvest Hill Road house, officers learned that it was being occupied by
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Huggins and Michael Strickland. In Huggins’s room, officers found a
schematic drawing for a hydroponic marijuana cultivation system and a list of
items needed to build the system.
On May 28, 2014, a federal grand jury in the Eastern District of Texas
returned a superseding indictment charging Holley with three counts: one
count of conspiracy to commit a drug trafficking crime in violation of 21 U.S.C.
§ 846, one count of felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), and one count of possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Prior to trial, Holley moved
to suppress the evidence discovered during the searches of the Gray Wolf Trail,
Winterwood Lane, and McShann Road houses. Holley argued, in relevant part,
that the dog sniffs used to obtain the warrants for the Gray Wolf Trail and
Winterwood Lane houses violated the Fourth Amendment, relying principally
on the Supreme Court’s decision in Florida v. Jardines. 1 The district court
denied all three motions to suppress.
Holley’s case was tried to a jury from June 3-6, 2014. The Government
presented testimony from one of Holley’s former customers, Meina Azez, and
two of Holley’s former co-defendants who pleaded guilty and agreed to
cooperate, Justin Brown and Jason Sirovica. Brown testified that he bought
large quantities of marijuana from Holley on a regular basis. At some point,
he started his own grow operation using seeds extracted from marijuana
purchased from Holley. Brown explained that two individuals helped him with
his grow operation, Corey Armstrong and Jason Sirovica. Brown elaborated
that a third individual, Nick Neighbors, assisted both him and Holley. Brown
also recounted that Holley and his associate, Michael Strickland, unexpectedly
stopped by his “grow room” on one occasion. Holley and Strickland noticed that
1 133 S. Ct. 1409 (2013).
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Brown’s plants were healthy and producing well. As a result, they asked “what
chemicals [he] was using,” and Brown told them. Sirovica testified consistently
with Brown. He confirmed that he and Brown used to buy marijuana from
Holley and started growing their own. Sirovica testified that he and Brown
worked together, although they both grew marijuana separately as well. He
added that Strickland—who is an electrician—helped him wire one of his
“marijuana grows.” The Government established through other witnesses
that: (1) the Winterwood Lane house was leased in Holley’s name; (2)
Strickland was listed as the emergency contact on the lease for the Winterwood
Lane house; and (3) the H&K handgun found at the Gray Wolf Trail house had
been manufactured in Germany.
At the close of the Government’s case, Holley moved for a judgment of
acquittal. Following a thorough review of the evidence, the district court
denied this motion. The jury subsequently returned a guilty verdict on all
counts. Holley renewed his motion for a directed verdict, but the district court
again denied it. In March 2015, the district court sentenced Holley to 185
months of imprisonment followed by 8 years of supervised release. Holley
timely appealed to this Court.
II.
On appeal, Holley presses four arguments: (1) the district court erred in
denying the motions to suppress; (2) there was insufficient evidence to convict
on Count One because the Government proved only that he conspired to
distribute marijuana, not marijuana plants; (3) there was insufficient evidence
to convict on Count Three because the Government proved only that he used a
gun to further a conspiracy to distribute marijuana, not a conspiracy to
distribute marijuana plants; and (4) there was insufficient evidence to convict
on Counts Two and Three because the Government proved only that the H&K
handgun moved in foreign commerce, not interstate commerce.
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A.
Holley argues that the district court erred in denying all three motions
to suppress. As below, he urges that the dog sniffs of the Gray Wolf Trail and
Winterwood Lane houses violated the Fourth Amendment under the Supreme
Court’s recent decision in Florida v. Jardines. He further argues that the
McShann Road warrant was fruit of the poisonous tree because it was based
in part on these searches. The Government responds that the dog sniffs did
not violate the Fourth Amendment. Alternatively, the Government argues
that the good faith exception applies. We start with the good faith exception.
For purposes of our analysis, we assume without deciding that the dog sniffs
violated the Fourth Amendment.
In his briefing, Holley argues that “Leon is not applicable in the instant
case because the warrants were based upon the preceding unconstitutional and
warrantless dog sniff searches.” 2 That is, Holley urges that the Leon good faith
exception is categorically inapplicable when a warrant is obtained using
tainted evidence—or is fruit of the poisonous tree. This position is inconsistent
with this Court’s recent decision in United States v. Massi. 3 In Massi, this
Court held that evidence seized pursuant to a warrant is admissible—even if
the warrant was the product of an illegal search—if two requirements are met:
(1) the prior law enforcement conduct that uncovered evidence
used in the affidavit for the warrant must be “close enough to the
line of validity” that an objectively reasonable officer preparing the
affidavit or executing the warrant would believe that the
information supporting the warrant was not tainted by
unconstitutional conduct, and (2) the resulting search warrant
must have been sought and executed by a law enforcement officer
2 Holley’s Reply Brief at 12.
3 761 F.3d 512 (5th Cir. 2014).
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in good faith as prescribed by Leon. 4
There is no allegation that the officers did not seek the Gray Wolf Trail and
Winterwood Lane warrants in good faith. As a result, the only question is
whether the dog sniffs were “close enough to the line of validity” that an
objectively reasonable officer would not have realized that the resulting
warrants were tainted.
Although the issue is close, we are persuaded that the good faith
exception applies. The disputed dog sniffs took place in 2008. At that point in
time, this Court had issued only one decision, albeit an unpublished one, that
addressed a similar search, United States v. Tarazon-Silva. 5 In Tarazon-Silva,
this Court upheld a “dog-sniff of the outer edge of the [defendant’s] garage and
the dryer vent on the exterior wall of the house” because it “did not occur on
protected curtilage.” 6 This outcome was consistent with several other
pre-Jardines decisions addressing dog sniffs of garage doors. 7 Indeed, Holley
does not point us to a single pre-Jardines decision that invalidated a search
factually similar to those under review. Even if not binding or conclusive, this
uniform case law demonstrates that the dog sniffs were “close enough to the
line of validity” that an objectively reasonable officer would not have realized
that the Gray Wolf Trail and Winterwood Lane warrants were tainted. In
these circumstances, “[t]o suppress the evidence derived from th[ese]
warrant[s] would not serve the interest of deterring future constitutional
4 Id. at 528.
5 166 F.3d 341 (5th Cir. 1998) (unpublished table decision).
6 Id. at *1.
7 See, e.g., United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990); United States
v. Hogan, 122 F. Supp. 2d 358, 367-69 (E.D.N.Y. 2000); Stauffer v. State, No. 14-03-00193-
CR, 2004 WL 253520, at *2-3 (Tex. Ct. App. Feb. 12, 2004) (unpublished); Smith v. State, No.
01-02-00503-CR, 2004 WL 213395, at *3-4 (Tex. Ct. App. Feb. 5, 2004) (unpublished).
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violations.” 8 We affirm the denial of the three motions to suppress.
We do not hold—as the dissent suggests—that “a search is reasonable so
long as no court has explicitly found a search under identical circumstances to
be unreasonable.” Prior to Jardines, thirteen different federal and state judges
(including three members of this Court) concluded that a dog sniff of a garage
door did not violate the Fourth Amendment. Although these cases necessarily
involved different facts, their uniformity refutes the dissent’s assertion that a
reasonable officer should have realized that a dog sniff of a garage door was
categorically unconstitutional. Indeed, even now, it is unclear whether a dog
sniff of a garage door is unconstitutional. The dissent urges that Florida v.
Jardines 9 and Kyllo v. United States 10 inexorably lead to this conclusion. But
the dissent ignores cases holding that a driveway is not part of the home’s
curtilage 11 and a dog is not the type of “sense-enhancing” tool discussed in
Kyllo. 12 To deny use of the evidence here would ill serve the purposes of the
exclusionary rule.
B.
Count One alleged that Holley conspired “with other persons known and
unknown to the United States Grand Jury, to knowingly and intentionally
possess with the intent to manufacture and distribute, and to manufacture and
distribute 100 or more marijuana plants, a violation of 21 U.S.C. § 841(a)(1)
. . . [i]n violation of 21 U.S.C. § 846.” Holley concedes that “there was sufficient
evidence to convict [him] of conspiring with the intent to distribute and
8 Massi, 761 F.3d at 532 (citing United States v. Leon, 468 U.S. 897, 919-20 (1984)).
9 133 S. Ct. 1409 (2013).
10 533 U.S. 27 (2001).
11 See United States v. Beene, 818 F.3d 157, 162-63 (5th Cir. 2016).
12 See Illinois v. Caballes, 543 U.S. 405, 409-10 (2005); see, e.g., United States v. Shuck,
713 F.3d 563, 568-69 (10th Cir. 2013); United States v. Scott, 610 F.3d 1009, 1016 (8th Cir.
2010).
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distributing cultivated marijuana.” 13 But he urges there was not sufficient
evidence to convict him of the offense charged in the indictment—conspiring to
distribute marijuana plants. That is, Holley argues that the Government only
proved that he conspired to distribute marijuana that was harvested from the
plants discovered in his grow houses, not the plants themselves.
Holley’s position is unconvincing. By its plain text, there are six different
ways to violate § 841(a): (1) manufacturing a controlled substance; (2)
distributing a controlled substance; (3) dispensing a controlled substance; or
possessing with the intent to (4) manufacture, (5) distribute, or (6) dispense a
controlled substance. Count One alleged that Holley conspired to violate
§ 841(a) in four of these six ways: he conspired to manufacture marijuana
plants; he conspired to distribute marijuana plants; he conspired to possess
with the intent to manufacture marijuana plants; and he conspired to possess
with the intent to distribute marijuana plants. Although the indictment listed
these different ways of violating § 841(a) using “and” rather than “or,” the
Government still only had to prove that Holley conspired to violate the statute
in one of these four possible ways. 14
The Supreme Court has instructed that the “general rule is that when a
jury returns a guilty verdict on an indictment charging several acts in the
conjunctive, as [Holley’s] indictment did, the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.” 15 Put another way,
Holley’s sufficiency challenge fails if there was sufficient evidence that he
13 Holley’s Opening Brief at 28.
14 “It is well-established in this Circuit that a disjunctive statute may be pleaded
conjunctively and proved disjunctively.” United States v. Haymes, 610 F.2d 309, 310 (5th Cir.
1980) (per curiam); see also, e.g., United States v. Hoeffner, 626 F.3d 857, 863-64 (5th Cir.
2010) (per curiam); United States v. Pigrum, 922 F.2d 249, 253 (5th Cir. 1991).
15 Turner v. United States, 396 U.S. 398, 420 (1970); see also Griffin v. United States,
502 U.S. 46, 56-57 (1991).
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entered a conspiracy to either manufacture marijuana plants, distribute
marijuana plants, possess with the intent to manufacture marijuana plants, or
possess with the intent to distribute marijuana plants. 16 There undoubtedly
was. Though Holley contends that he did not conspire to distribute marijuana
plants, there is ample evidence that he conspired to manufacture marijuana
plants. At trial, the Government introduced evidence that several different
people assisted Holley with his grow operation: (1) Nick Neighbors provided
unspecified assistance; (2) Justin Brown provided advice about chemicals; (3)
Michael Strickland was the emergency contact for one of the grow houses; (4)
Justin Dismore put his name on the utilities for one of the grow houses; (5)
Louis Lee put his name on the utilities for a different grow house; and (6) Blake
Huggins was found at one of the grow houses and possessed a schematic for a
hydroponic marijuana cultivation system. The Government had to establish
only that Holley conspired with one of these individuals to prove a violation of
§ 846. 17 “[C]onsidering the evidence and all reasonable inferences in the light
most favorable to the prosecution,” 18 a rational jury could have concluded that
Holley conspired with all six.
C.
Count Three alleged that Holley possessed the H&K handgun “in
furtherance of a drug trafficking crime . . . to wit: conspiracy to possess with
intent to distribute and manufacture, distribute, and manufacture marijuana
plants as alleged in Count One of th[e] Superseding Indictment” in violation of
18 U.S.C. § 924(c). Holley appears to concede that he possessed a firearm in
furtherance of a drug trafficking crime—but not the one alleged in the
16 See, e.g., United States v. Durman, 30 F.3d 803, 810 (7th Cir. 1994); United States
v. Richman, 600 F.2d 286, 298 (1st Cir. 1979).
17 See United States v. Scott, 48 F.3d 1389, 1392-93 (5th Cir. 1995).
18 United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc).
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indictment. Similarly to Count One, Holley acknowledges that the
Government presented evidence that he “possessed the HK .45 caliber
handgun . . . in connection with possession and selling harvested marijuana.” 19
But he argues that “the government presented absolutely no evidence that [he]
possessed the handgun when allegedly conspiring to posses[s] with intent to
distribute and manufacture, distribute, and manufacture marijuana plants.” 20
The same principles apply as above. Though Count Three was pleaded
conjunctively, the Government had four different routes to a conviction: (1)
Holley possessed the handgun “in furtherance of” a conspiracy to manufacture
marijuana plants; (2) Holley possessed the handgun “in furtherance of” a
conspiracy to distribute marijuana plants; (3) Holley possessed the handgun
“in furtherance of” a conspiracy to possess with the intent to manufacture
marijuana plants; or (4) Holley possessed the handgun “in furtherance of” a
conspiracy to possess with the intent to distribute marijuana plants. Because
the jury returned a general verdict, it “stands if the evidence is sufficient with
respect to any one of” these four alternative ways of violating § 924(c). 21
Therefore, the relevant question is whether the Government presented
sufficient evidence that Holley possessed a handgun “in furtherance of” one of
the four drug trafficking conspiracies alleged in Count One.
We conclude that the Government presented sufficient evidence that
Holley possessed the H&K handgun “in furtherance of” a conspiracy to
manufacture marijuana plants. This Court has held that evidence that a
firearm is being used to protect a drug operation against robbery is sufficient
to support a conviction under § 924(c). 22 We have delineated eight factors that
19 Holley’s Opening Brief at 32.
20 Id.
21 Turner v. United States, 396 U.S. 398, 420 (1970).
22 United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir.), as amended on denial
of reh’g en banc, 226 F.3d 651 (5th Cir. 2000).
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help distinguish a firearm that is being used to protect a drug operation from
one that is merely present at the scene of a drug crime:
the type of drug activity that is being conducted, accessibility of
the firearm, the type of the weapon, whether the weapon is stolen,
the status of the possession (legitimate or illegal), whether the gun
is loaded, proximity to drugs or drug profits, and the time and
circumstances under which the gun is found. 23
Almost all of these factors weigh against Holley: (1) Holley was “engaged in
significant drug activity”; 24 (2) the handgun was found a short distance from
Holley; (3) the handgun is large caliber and semi-automatic; 25 (4) the handgun
may have been stolen; 26 (5) Holley is a convicted felon, so the possession was
illegal; (6) the handgun was found in the same case as two loaded magazines
and a box of ammunition; (7) the handgun was found on the same shelf as
$9,990 in drug profits and in the same house as ten pounds of marijuana and
two trays of drying marijuana; 27 and (8) the handgun was found during the
search of a house involved in Holley’s grow operation. As a result, a rational
jury could have readily concluded that Holley used the H&K handgun to
protect his marijuana manufacturing operation.
Holley’s only reply is that the handgun “was not located at the grow
house and there is no indication that it was used to protect the marijuana
plants at the grow house.” 28 This argument is unpersuasive. The evidence at
23 Id. at 414-15; see also United States v. Charles, 469 F.3d 402, 406 (5th Cir. 2006).
24 See United States v. Yanez Sosa, 513 F.3d 194, 201 (5th Cir. 2008).
25 See United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012) (“[T]he gun was
. . . a ‘large caliber semi-automatic which could [be] easily concealed.’ . . . Our cases suggest
that such handguns are frequently used in similar drug-trafficking crimes, where the
offender needs protection because of the high-stakes, dangerous nature of the offense.” (third
alteration in original)).
26 The gun was originally sold to a woman uninvolved in the drug conspiracy. At trial,
she testified that she left the gun with her ex-husband. She did not know if her ex-husband—
who was a friend of Holley—gave the gun to him.
27 See United States v. Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989); see also
United States v. Young, 340 F. App’x 226, 229 n.4 (5th Cir. 2009).
28 Holley’s Reply Brief at 15.
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trial established that Holley was the mastermind of a large grow operation
involving several houses. Although the handgun was not found at a grow
house, it would have been reasonable for the jury to infer that Holley carried
the gun when he traveled to the grow houses and used it to protect the larger
grow operation. This is especially true because the police found evidence at
the Gray Wolf Trail house connecting it to the grow houses, including a utility
bill for the Winterwood Lane house and drying marijuana. 29 Accordingly,
“considering the evidence and all reasonable inferences in the light most
favorable to the prosecution,” 30 there was sufficient evidence to support
Holley’s § 924(c) conviction.
D.
Counts Two and Three both alleged that Holley possessed a firearm
“affecting interstate commerce.” Holley contends that the evidence presented
at trial was insufficient to establish that the H&K handgun “affect[ed]
interstate commerce” because it demonstrated only that the handgun moved
in foreign commerce—not interstate commerce. As Holley concedes, this
argument is foreclosed by prior decisions of this Court. 31
III.
For the reasons stated above, we AFFIRM.
29 Officer Putman testified that “[t]he only time, in [his] experience, [he has] ever seen
dried-up leaves are actually at a marijuana grow.”
30 United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc).
31 See United States v. Guidry, 406 F.3d 314, 318 & n.3 (5th Cir. 2005) (“The interstate
commerce element of a § 922(g)(1) charge is satisfied where the government demonstrates
that the firearm was manufactured out of state.”); United States v. Young, 730 F.2d 221, 224-
25 (5th Cir. 1984).
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JAMES E. GRAVES, JR., Circuit Judge, dissenting:
Under cover of darkness, at approximately five o’clock in the morning, a
police officer walked through an alleyway to the door of Holley’s attached, rear-
entry garage. 1 The officer brought along a drug-detection dog who allegedly
“alerted to the presence of the odor of an illegal drug while sniffing the garage
door.” Despite those facts, the majority affirms the district court’s denial of
Holley’s motions to suppress. Because I conclude that the district court erred,
I respectfully dissent.
I.
In Davis v. United States, the Supreme Court held “that searches
conducted in objectively reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule.” 564 U.S. 229, 232 (2011). In 2008, when
these searches were conducted, there existed no “unequivocal” and “binding”
Fifth Circuit precedent “specifically authorizing” police to come onto a person’s
property with a drug-detection dog in order to have the dog sniff at the garage
doors. The majority states that “Holley does not point us to a single pre-
Jardines decision that invalidated a search factually similar to those under
review.” Like Holley, the Government cannot point to a single binding decision
in which a similar search was deemed valid.
The majority states that the search was “‘close enough to the line of
validity’ that an objectively reasonable officer would not have realized that the
Gray Wolf Trail and Winterwood Lane warrants were tainted.” The majority
adds that “[i]n these circumstances, ‘[t]o suppress the evidence derived from
th[ese] warrant[s] would not serve the interest of deterring future
1 The dog sniffs took place on March 25, 2008, and April 7, 2008―both at
“approximately” 5:00 a.m.. The sun rose at 7:22 a.m. on the 25th and 7:05 a.m. on the 7th.
See Sunrise & Sunset for Dallas, TX, The Old Farmer’s Almanac, 2016,
http://www.almanac.com/astronomy/rise/TX/Dallas/2008-04-07.
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constitutional violations.’” United States v. Massi, 761 F.3d 512, 532 (5th Cir.
2014) (citing United States v. Leon, 468 U.S. 897, 919−20 (1984)). I disagree.
This is not the sort of police action that the good-faith exception is intended to
protect.
II.
The good-faith exception is inapplicable in this case. Under the good-
faith exception to the exclusionary rule, evidence is admissible if it is obtained
by law enforcement officers acting in objectively reasonable reliance on a
search warrant issued by a detached and neutral magistrate. Leon, 468 U.S.
at 927−28. The majority reasons that the disputed dog sniffs took place in 2008
before the Supreme Court’s issuance of Florida v. Jardines, 133 S. Ct. 1409
(2013)―which found that a warrantless dog sniff of a person’s porch violated
the Fourth Amendment―and does not address that opinion’s effect on this case.
Instead, the majority suggests that one unpublished opinion from the Fifth
Circuit, United States v. Tarazon-Silva, along with a few other non-binding
cases, 2 demonstrate that the dog sniffs were “close enough to the line of
validity.” 166 F.3d 341, 1998 WL 912178 (5th Cir. 1998).
In Tarazon–Silva, a panel stated that a “dog-sniff of the outer edge of the
garage and the dryer vent on the exterior wall of the [defendant’s] house did
not occur on protected curtilage” and thus the defendant “had no reasonable
expectation of privacy in those areas.” Id. at *1. Reliance on Tarazon-Silva is
problematic for a least two reasons. The first is that Tarazon-Silva is not
binding precedent. See Ballard v. Burton, 444 F.3d 391, 401 (5th Cir. 2006)
(citing 5th Cir. R. 47.5.4 (“An unpublished opinion issued after January 1, 1996
2The majority cites a few non-binding cases, some of which are unpublished. See, e.g.,
United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990); United States v. Hogan, 122 F.
Supp. 2d 358, 367-69 (E.D.N.Y. 2000); Stauffer v. State, No. 14-03-00193-CR, 2004 WL
253520, at *2-3 (Tex. Ct. App. Feb. 12, 2004) (unpublished); Smith v. State, No. 01-02-00503-
CR, 2004 WL 213395, at *3-4 (Tex. Ct. App. Feb. 5, 2004) (unpublished).
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is not controlling precedent, but may be persuasive authority.”). The second is
that Tarazon-Silva lacked any substantial factual analysis. In a one page
opinion, the panel merely concluded that the search did not occur on protected
curtilage. Tarazon-Silva provides scant analytical guidance and is, in my view,
improperly relied upon by the majority.
The majority implies that the absence of a similar case prohibiting this
type of search pre-Jardines protects the officer’s actions. Essentially, their
holding would suggest that a search is reasonable so long as no court has
explicitly found a search under identical circumstances to be unreasonable.
Jardines did not announce a new rule and thus this type of warrantless search
was not “close enough to the line of validity” even pre-Jardines. See United
States v. Burston, 806 F.3d 1123, 1129 (8th Cir. 2015) (finding that Davis does
not apply because no cases “serve as binding precedent to permit the drug-
detection dog sniff in this factual context”).
III.
The Fourth Amendment provides that the “right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” “The touchstone of Fourth
Amendment analysis is whether a person has a ‘constitutionally protected
reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S. 207, 211
(1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring)). “Katz posits a two-part inquiry: first, has the individual
manifested a subjective expectation of privacy in the object of the challenged
search? Second, is society willing to recognize that expectation as reasonable?”
Id. (citing Smith v. Maryland, 442 U.S. 735, 740220 (1979)). The Supreme
Court has long recognized that “when it comes to the Fourth Amendment, the
home is first among equals.” Jardines, 133 S. Ct. at 1414. “At the Amendment's
‘very core’ stands ‘the right of a man to retreat into his own home and there be
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free from unreasonable governmental intrusion.’” Id. (quoting Silverman v.
United States, 365 U.S. 505, 511 (1961)).
The Supreme Court specifically addressed the interplay between the
Fourth Amendment and the good-faith exception in Leon, noting that it was
not “persuaded that application of a good-faith exception to searches conducted
pursuant to warrants will preclude review of the constitutionality of the search
or seizure, deny needed guidance from the courts, or freeze Fourth Amendment
law in its present state.” Leon, 468 U.S. at 924. The Supreme Court elaborated:
The good-faith exception for searches conducted pursuant to
warrants is not intended to signal our unwillingness strictly to
enforce the requirements of the Fourth Amendment, and we do not
believe that it will have this effect. . . . There is no need for courts
to adopt the inflexible practice of always deciding whether the
officers’ conduct manifested objective good faith before turning to
the question whether the Fourth Amendment has been violated.
Defendants seeking suppression of the fruits of allegedly
unconstitutional searches or seizures undoubtedly raise live
controversies which Art. III empowers federal courts to adjudicate.
. . . If the resolution of a particular Fourth Amendment question is
necessary to guide future action by law enforcement officers and
magistrates, nothing will prevent reviewing courts from deciding
that question before turning to the good-faith issue. Indeed, it
frequently will be difficult to determine whether the officers acted
reasonably without resolving the Fourth Amendment issue.
Id.
The Supreme Court stated that it regards “the area ‘immediately
surrounding and associated with the home’—what [its] cases call the
curtilage—as ‘part of the home itself for Fourth Amendment purposes.’”
Jardines, 133 S. Ct. at 1414−15 (quoting Oliver v. United States, 466 U.S. 170,
176 (1984)). “That principle has ancient and durable roots.” Id. “Just as the
distinction between the home and the open fields is ‘as old as the common law,’
[Hester v. United States, 265 U.S. 57 (1924)], so too is the identity of home and
what Blackstone called the ‘curtilage or homestall’ for the ‘house protects and
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privileges all its branches and appurtenants.’” Id. (quoting 4 W. Blackstone,
Commentaries on the Laws of England 223, 225 (1769)). In Jardines, the
Supreme Court recognized that the front porch of a home “is the classic
exemplar of an area adjacent to the home and ‘to which the activity of home
life extends.’” 133 S. Ct. at 1415. “The protection afforded the curtilage is
essentially a protection of families and personal privacy in an area intimately
linked to the home, both physically and psychologically, where privacy
expectations are most heightened.” Ciraolo, 476 U.S. at 212−13.
The Fourth Amendment has long protected against unwarranted
searches of a person’s home and its curtilage. In 1961, the Supreme Court
stated that “[t]he Fourth Amendment, and the personal rights which it secures,
have a long history. At the very core stands the right of a man to retreat into
his own home and there be free from unreasonable governmental intrusion.”
Silverman v. United States, 365 U.S. 505, 511−12 (1961) (citing Entick v.
Carrington, 19 Howell’s State Trials 1029, 1066; Boyd v. United States, 116
U.S. 616, 626−630 (1886)). In 1980, the Supreme Court specifically stated that
the “Fourth Amendment draws ‘a firm line at the entrance to the house.’”
Payton v. New York, 445 U.S. 573, 590 (1980).
In Kyllo, the Supreme Court noted that where “the Government uses a
device that is not in general public use, to explore details of the home that
would previously have been unknowable without physical intrusion, the
surveillance is a ‘search’ and is presumptively unreasonable without a
warrant.” Kyllo v. United States, 533 U.S. 27, 40 (2001); see also United States
v. Beene, 818 F.3d 157, 165−75 (5th Cir. 2016) (Graves, J., dissenting). The
device utilized in this case was a drug-detection dog. “[D]rug-detection dogs are
highly trained tools of law enforcement, geared to respond in distinctive ways
to specific scents so as to convey clear and reliable information to their human
partners.” Jardines, 133 S. Ct. at 1418 (Kagan, J., concurring) (citing Florida
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v. Harris, 133 S. Ct. 1050, 1053–1054, 1056–1057 (2013)). Justice Kagan’s
concurrence noted that drug-detection dogs “are to the poodle down the street
as high-powered binoculars are to a piece of plain glass. Like the binoculars, a
drug-detection dog is a specialized device for discovering objects not in plain
view (or plain smell).” Id. While her concurrence gives a particularly relevant
example, the concept is based on 2001’s Kyllo―decided seven years before the
present search. 3
Here, the search was conducted at the door of a rear-entry garage. Courts
utilize four factors to determine if an area is within the curtilage of the home:
(1) “the proximity of the area claimed to be curtilage to the home;” (2) “whether
the area is included within an enclosure surrounding the home;” (3) “the nature
of the uses to which the area is put;” and (4) “the steps taken by the resident
to protect the area from observation by people passing by.” United States v.
Dunn, 480 U.S. 294, 301 (1987). Holley’s garages were attached and therefore
enclosed within the home. The garage served as an entrance to the home. See
generally Burston, 806 F.3d at 1127 (finding an area six to ten inches from
defendant’s window to be part of the curtilage). A garage is often used for home
purposes―it can serve as a workshop, a family room, an exercise room, or a
place for storage of home goods.
Still, the Government contends that the driveway upon which the officer
and the drug-detection dog stood was open to the public. The driveway,
however, was removed from the street and accessible only by an alleyway. The
Government implies that it was open to the public. I cannot agree. The
3 The majority cites Illinois v. Caballes for the proposition that “a dog is not the type
of ‘sense-enhancing’ tool discussed in Kyllo.” 543 U.S. 405, 410 (2005). The Supreme Court
did not state this. Instead, the Supreme Court drew a distinction between the expectation of
privacy in one’s home and that of the trunk of one’s vehicle during a “concededly lawful traffic
stop.” Id. Kyllo evidenced the Supreme Court’s “intention to draw both a ‘firm’ and a ‘bright’
line at ‘the entrance to the house.’” Jardines, 133 S. Ct. at 1419 (Kagan, J., concurring).
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implication is that the Fourth Amendment right in these circumstances only
arises upon the erecting of a fence, the closing of a gate, or the posting of a
sentry. Holley had his garage door closed―that should be enough, in my view,
to keep away uninvited guests at 5:00 a.m.. Furthermore, I do not suggest, as
the majority states, that a “dog sniff of a garage door [i]s categorically
unconstitutional.” This specific search is, in my view, unconstitutional.
In Jardines, the Supreme Court described the lack of invitation for an
officer to approach a home with a drug-detection dog and how the situation
violates social norms. “[A] police officer not armed with a warrant may
approach a home and knock, precisely because that is ‘no more than any
private citizen might do.’” Jardines, 133 S. Ct. at 1416 (quoting Kentucky v.
King, 131 S. Ct. 1849, 1862 (2011)). “But introducing a trained police dog to
explore the area around the home in hopes of discovering incriminating
evidence is something else. There is no customary invitation to do that.” Id.
The Supreme Court noted that this is the type of situation that would inspire
someone to call the police on the trespasser. In this case the officer came onto
Holley’s property at 5:00 a.m.―thus violating social norms and distinguishing
this situation from when a Girl Scout or a trick-or-treater approaches a
person’s door from an open walkway. 4 This is common sense and not a new rule
4 The majority concludes that I “ignore cases holding that a driveway is not part of the
home’s curtilage,” and then cites United States v. Beene, 818 F.3d 157, 162-63 (5th Cir. 2016).
Beene, however, did not announce a broad rule that a driveway is not part of a home’s
curtilage. Instead, the majority conducted a factual analysis under the Dunn factors and
stated that “the driveway’s proximity to the residence weigh[ed] in favor of a finding that it
was part of the curtilage of the home.” Id. at 162. Here, the garage is essentially part of the
home because it is directly attached and serves as the entrance to the home―much like the
front porch in Jardines.
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of law. 5 Accordingly, in my view, the initial dog sniff constituted an
unreasonable and illegal unwarranted search.
IV.
Having described the illegality of the initial dog sniff, I turn to its effect
on the later obtained warrant. The affidavit to support the search warrant
relied heavily on two “free-air sniff” dog searches of Holley’s rear-entry garage
at approximately 5:00 a.m. on two different days. 6 On both occasions, the dog
allegedly “alerted to the presence of the odor of an illegal drug while sniffing
the garage door.” Based largely upon the canine alerts, an officer sought and
received a search warrant for the Gray Wolf Trail house. Officers first searched
Gray Wolf and then Winterwood, which was discovered as a result of the
records found during the execution of the Gray Wolf search warrant. Before
obtaining a warrant to search Winterwood, an officer again conducted a
warrantless dog sniff of the property.
5 The majority does not address the timing of the search, but it serves to add to the
common sense conclusion that the search violated social norms. The Illinois Supreme Court
recently considered a search happening in the early morning hours. See generally People v.
Burns, 50 N.E.3d 610, 630 (Ill. 2016) (“We hold that the warrantless use of a drug-detection
dog at 3:20 a.m. at defendant’s apartment door, located within a locked apartment building,
violated defendant’s rights under the fourth amendment to the United States Constitution.”).
Further, Justice Alito utilized the timing of the search in Jardines as support for its
reasonableness in his dissent. See Jardines, 133 S. Ct. at 1423 (Alito, J., dissenting) (“He
adhered to the customary path; he did not approach in the middle of the night; and he
remained at the front door for only a very short period (less than a minute or two).”) Justice
Alito went on to cite an Idaho Court of Appeals case where the court held that “‘[f]urtive
intrusion late at night or in the predawn hours is not conduct that is expected from ordinary
visitors. Indeed, if observed by a resident of the premises, it could be a cause for great alarm.’”
Id. (quoting State v. Cada, 923 P.2d 469, 478 (Idaho Ct. App. 1996)).
6 A confidential informant told an officer that Holley was a large volume marijuana
dealer. The informant stated that Holley lived in a house near Preston Road and Frankford
Road and that he drove a white Lincoln Navigator. A search revealed that Holley owned a
Navigator and that he lived at 6203 Gray Wolf Trail in Dallas―approximately one mile from
the intersection of Preston and Frankford. Still, the affidavits would have been paltry, at
best, without the dog sniffs.
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The later issued warrant, however, does not sanitize an otherwise illegal
search. As noted by the Eighth Circuit, “[i]f clearly illegal police behavior can
be sanitized by the issuance of a search warrant, then there will be no
deterrence, and the protective aims of the exclusionary rule will be severely
impaired if not eliminated.” United States v. O’Neal, 17 F.3d 239, 243 n.6 (8th
Cir. 1994); see also United States v. McGough, 412 F.3d 1232, 1240 (11th Cir.
2005) (“In this case, it was not an ‘objectively reasonable law enforcement
activity’ but rather the officers’ unlawful entry into [defendant’s] apartment
that led to [the officer’s] request for a search warrant. In such a situation, ‘the
search warrant affidavit was tainted with evidence obtained as a result of a
prior, warrantless, presumptively unlawful entry into a personal dwelling.’”);
United States v. Wanless, 882 F.2d 1459, 1466 (9th Cir. 1989) (noting that “good
faith exception does not apply where a search warrant is issued on the basis of
evidence obtained as the result of an illegal search”); United States v. Reilly,
76 F.3d 1271, 1280 (2d Cir. 1996) (declining to apply the good-faith exception
when the “issuance of the warrant was itself premised on material obtained in
a prior search that today’s holding makes clear was illegal”); United States v.
Mowatt, 513 F.3d 395, 405 (4th Cir. 2008) abrogated on other grounds by
Kentucky v. King, 563 U.S. 452 (2011) (“The Leon exception does not apply here
because Leon only prohibits penalizing officers for their good-faith reliance on
magistrates’ probable cause determinations. Here, the exclusionary rule
operates to penalize the officers for their violation of [defendant’s] rights that
preceded the magistrate’s involvement.”); United States v. Vasey, 834 F.2d 782,
789 (9th Cir. 1987) (holding that Leon exception did not apply when warrant
was based on information obtained in illegal warrantless search because “[t]he
constitutional error was made by the officer ..., not by the magistrate”); United
States v. Davis, 430 F.3d 345, 358 n.4 (6th Cir. 2005) (“[W]e agree with the
numerous other circuits that have held that the Leon good-faith exception is
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inapplicable where a warrant was secured in part on the basis of an illegal
search or seizure.”).
Because the later issued warrant was based on an illegal search, the
evidence obtained through the use of the warrants should be excluded as fruit
of the poisonous tree. See Nix v. Williams, 467 U.S. 431, 441 (1984) (citing
Wong Sun v. United States, 371 U.S. 471 (1963)); see also Segura v. United
States, 468 U.S. 796, 804 (1984) (“[T]he exclusionary rule reaches not only
primary evidence obtained as a direct result of an illegal search or seizure,
Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), but
also evidence later discovered and found to be derivative of an illegality or ‘fruit
of the poisonous tree.’”) (citation omitted)). The good-faith exception limits
exclusion where “the marginal or nonexistent benefits produced by
suppressing evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant cannot justify the substantial costs
of exclusion.” Leon, 468 U.S. at 922. This is not such a case. In this situation,
excluding the tainted evidence would advance the interest of deterring
unlawful police conduct in the form of the invasion of a person’s home space
with a drug-detection dog in the early morning hours. Where the benefits
produced by suppressing the evidence are not merely marginal or nonexistent
and do justify the costs of exclusion, the good-faith exception does not apply.
See Massi, 761 F.3d at 537 (Graves, J., dissenting) (citing Leon, 468 U.S. at
922).
V.
As a direct result of a constitutional violation, authorities obtained a
search warrant. Thus, the evidence obtained as a result of that search is
tainted. Exclusion of that tainted evidence would certainly advance the
interest of deterring unlawful police conduct. Because the warrant was based
on an illegal and unreasonable search, I cannot conclude that the good-faith
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exception applies in this instance. I do not agree that “the two dog sniffs were
‘close enough to the line of validity’ that an objectively reasonable officer would
not have realized that the Gray Wolf Trail and Winterwood Lane warrants
were tainted.” The officer did not act on binding precedent. Instead, he
intruded into a constitutionally protected area with a drug-detection dog at five
o’clock in the morning. The majority’s holding permits officers to utilize drug-
detection dogs on protected property without a warrant and then to utilize any
evidence obtained to subsequently acquire a warrant. Because I conclude that
Holley’s motions to suppress should be granted, I respectfully dissent.
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