The Lawletter Vol 42 No 4
Mark Rieber, Senior Attorney, National Legal Research Group
Generally, a lawful search warrant may not be procured by the use of illegally obtained information. E.g., State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 819 (2016). As a matter of first impression, however, the Texas Court of Criminal Appeals held that the Texas good-faith exception to the statutory exclusionary rule applied to a search executed pursuant to a search warrant that was based on information obtained from an illegal drug sniff. McClintock v. State, No. PD-1641-15, 2017 WL 1076289 (2Tex. Crim. App. Mar. 22, 2017). The drug-sniffing dog had been brought by police to the door of the defendant's upstairs residence, where the dog alerted police to the presence of drugs. This information was used as the basis for a search warrant for the residence, and there would have been no probable cause without the information. Execution of the warrant resulted in the seizure of marijuana. While the case was pending on appeal, the United States Supreme Court held that such dog sniffs constituted an unconstitutional search under the Fourth Amendment. See Florida v. Jardines, 133 S. Ct. 1409 (2013). Prior to the holding in Jardines, according to McClintock, it was not clear that the dog sniff used in McClintock was illegal. Relying on federal precedent, McClintock held that the good-faith exception to the Texas statutory exclusionary rule will apply when the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant was "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." The court concluded that the dog sniff used in the case before it was "close enough to this line of validity" for the good-faith exception to apply. Accordingly, the court held that the trial court's denial of the defendant's motion to suppress was not error and affirmed the trial court's judgment. A dissenting opinion would have affirmed the court of appeals holding that the evidence obtained should have been suppressed.
