Opinion issued November 5, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00572-CR

———————————

BRADLEY RAY MCCLINTOCK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd Criminal District Court

Harris County, Texas

Trial Court Case No. 1280089

OPINION ON REMAND

This case was remanded to us by the Court of Criminal Appeals. McClintock 

v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014). That Court affirmed our initial 

analysis and remanded to address in the first instance an issue first raised in the 

State’s petition for discretionary review. On remand, we must determine whether, 
2

under the facts of this case, an officer’s good-faith reliance on binding appellate 

precedent operates as an exception to both the federal exclusionary rule and Texas 

exclusionary statute. See id. at 20–21.

We conclude that the judge-made Davis exception to the judge-made federal 

exclusionary rule does not create an exception to the Texas exclusionary rule 

adopted by the Texas Legislature. Because the search warrant in this case was not 

based on probable cause, the Texas rule requires that the illegally obtained 

evidence be suppressed, and a new trial is required.

Background

Appellant Bradley McClintock appealed his conviction for possession of 

marijuana, arguing that evidence seized from his apartment pursuant to a search 

warrant should have been suppressed. In the supporting affidavit used to procure 

the warrant, Department of Public Safety Officer R. Arthur stated the following: 

Affiant received information that marijuana was being grown inside 

the 2nd floor residence located at 412 West Clay, Houston, Harris 

County, Texas. Affiant went to this location and found it to be located 

in Harris County, Texas. . . . Affiant and other peace officers with the 

Texas Department of Public Safety set up surveillance on this 

location. During surveillance of this location over the last week of the 

making of this affidavit, affiant observed the following: the 

downstairs of this location appears to be a business, there is an open to 

the public stairway that leads to the upstairs. . . . This stairway is open 

to the public in that it could easily be where a delivery person could or 

would make deliveries to the upstairs residence area. Affiant has 

observed a male individual come and go from this location, at hours 

well before and after the business hours of the business on the first 
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floor. Based on training and experience, Affiant found this to be 

consistent with possible narcotics activity.

On September 29, 2010, Affiant approached this location. At this 

time, from the outside of this location, Affiant could smell, what 

Affiant knows from training and experience to be, marijuana. On this 

same date at approximately 11:30 pm, Affiant requested the assistance 

of a narcotics canine at this location. Affiant spoke with and obtained 

the assistance of Houston Police Department Canine Officer Kristin 

Uhlin and her canine partner “Sita”. Officer Uhlin stated that she and 

“Sita” are currently certified by the National Narcotics Detector Dog 

Association, # 48761, for the detection of the odors of marijuana, 

cocaine and methamphetamine. Affiant observed Officer Uhlin and 

“Sita” to deploy up to the second floor doorway using the open to the 

public stairway described above. Officer Uhlin stated to Affiant that at 

the doorway leading into the second floor of this location, “Sita” gave 

a positive alert at this location indicating the presence of one or more 

of the above named controlled substance.

On the basis of the Supreme Court’s decision in Florida v. Jardines, 133 S. Ct. 

1409 (2013), issued while the appeal was originally pending in this court, we held 

that the warrantless dog sniff conducted at McClintock’s back door was unlawful. 

McClintock, 405 S.W.3d at 283–84. Setting aside that information, we concluded 

that the remainder of the affidavit was insufficient to establish probable cause 

necessary for a warrant. Id. at 284–88. We accordingly reversed the denial of 

McClintock’s motion to suppress and remanded for a new trial. Id. at 288–89. 

The State petitioned the Court of Criminal Appeals for review of our 

decision. In its first ground for review, the State asserted that Officer Arthur 

conducted the dog sniff in good-faith reliance on previously binding appellate 

precedent that held that a canine drug sniff did not constitute a “search” for Fourth 
4

Amendment purposes. McClintock, 444 S.W.3d at 18. Relying on the Supreme 

Court’s decision in Davis v. United States, 131 S. Ct. 2419 (2011), the State argued 

for the first time that pursuant to a good-faith exception to the exclusionary rule, 

the dog-sniff evidence should not be excluded. In its second ground for review the 

State argued, alternatively, that this court erred in its determination that the 

remainder of the affidavit could not furnish the probable cause necessary to 

support a search warrant. McClintock, 444 S.W.3d at 18. 

The Court of Criminal Appeals granted the State’s petition and considered 

both grounds for review. In a published opinion, the Court agreed with our 

determination that the remainder of the warrant affidavit did not clearly establish 

probable cause. McClintock, 444 S.W.3d at 19–20. Nevertheless, the Court vacated 

our judgment and remanded the case for consideration of the State’s new argument 

regarding a good-faith exception to the federal and Texas exclusionary rules. Id. at 

20–21. The Court observed that “the issue of the proper application of the 

exclusionary rule to the facts of this case is not remotely clear cut,” and that, if its 

resolution of the issue is eventually needed, it “would benefit from a carefully 

wrought decision from the court of appeals.” Id. 

Analysis

The question presented at this stage of the appeal is whether an exception 

applied by federal courts to the exclusionary rule, established in Davis v. United 
5

States, also should apply in this case to permit reliance on illegally obtained drug 

evidence. This question requires us to interpret and apply the Texas exclusionary 

statute, Code of Criminal Procedure Article 38.23. Before turning to the parties’ 

arguments about whether the exception applies in this case, we first review the 

scope of the exception established in Davis.

I. Davis v. United States

In Davis, the police arrested petitioner Willie Davis for giving a false name 

during a routine traffic stop. Davis, 131 S. Ct. at 2425. After the officers had 

handcuffed Davis and secured the scene, they searched his vehicle and found a 

gun. Id. As a result, Davis was indicted on charges of being a felon in possession 

of a firearm. Id. at 2425–26. The officers had conducted the search of the vehicle 

in reliance on the Eleventh Circuit’s interpretation of New York v. Belton, 453 U.S. 

454, 101 S. Ct. 2860 (1981). Davis, 131 S. Ct. at 2425–26. Davis acknowledged 

that then-existing precedent in the Eleventh Circuit allowed for the search of his 

vehicle, but he still preserved the issue and appealed. Id. at 2426. 

As Davis’s appeal was pending, the Supreme Court decided Arizona v. Gant, 

556 U.S. 332, 129 S. Ct. 1710 (2009). The new, two-part rule of Gant held that a 

warrantless automobile search incident to arrest is constitutional only when (1) the 

arrestee is within reaching distance of the vehicle during the search, or (2) the 

police have reason to believe that the vehicle contains evidence relevant to the 
6

crime of arrest. Id. at 332, 129 S. Ct. at 1712. Applying the new rule from Gant,

the Eleventh Circuit concluded that the vehicle search incident to Davis’s arrest 

was unconstitutional. See Davis, 131 S. Ct. at 2426. Nevertheless, the Eleventh 

Circuit declined to apply the exclusionary rule to the illegally obtained evidence 

based upon the officers’ good-faith reliance on judicial precedent. See id.

The Supreme Court granted certiorari and considered “whether to apply the 

exclusionary rule when the police conduct a search in objectively reasonable 

reliance on binding judicial precedent.” Id. at 2428. The Court acknowledged that 

Gant applied retroactively to the case and that the search was unlawful, despite the 

fact that the officers’ conduct was not culpable. Id. at 2428, 2431. Rather than 

viewing the issue as one of retroactivity, the Court based its analysis on the “good 

faith” test it established in United States v. Leon, 468 U.S. 897 (1984). Davis, 131 

S. Ct. at 2427–28.

The Court recognized that exclusion of evidence “exacts a heavy toll on both 

the judicial system and society at large,” but stated that the rule should nonetheless 

be applied as a “last resort.” Id. at 2427. The “sole purpose” of the rule is to “deter 

future Fourth Amendment violations.” Id. at 2426. Accordingly, exclusion is 

appropriate only when its “deterrence benefits” outweigh its “heavy costs.” Id. at 

2427. These circumstances exist when the police exhibit “deliberate, reckless, or 

grossly negligent disregard for Fourth Amendment rights.” Id.
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Applying the deterrence principles to the facts of the case, the Court 

concluded that exclusion of evidence obtained in reliance on binding judicial 

precedent would not be appropriate: 

About all that exclusion would deter in this case is 

conscientious police work. Responsible law-enforcement officers will 

take care to learn what is required of them under Fourth Amendment 

precedent and will conform their conduct to these rules. But by the 

same token, when binding appellate precedent specifically authorizes

a particular police practice, well-trained officers will and should use 

that tool to fulfill their crime-detection and public-safety 

responsibilities. An officer who conducts a search in reliance on 

binding appellate precedent does no more than act as a reasonable 

officer would and should act under the circumstances. The deterrent 

effect of exclusion in such a case can only be to discourage the officer 

from doing his duty. 

That is not the kind of deterrence the exclusionary rule seeks to 

foster. We have stated before, and we reaffirm today, that the harsh 

sanction of exclusion should not be applied to deter objectively 

reasonable law enforcement activity. 

Id. at 2429 (quotations omitted). Thus the Court established a new exception to the 

federal exclusionary rule: “Evidence obtained during a search conducted in 

reasonable reliance on binding precedent is not subject to the exclusionary rule.” 

Id. 

The State argues at the outset that the Davis exception should apply in this 

case because Officer Arthur acted in objectively reasonable good-faith reliance on 

pre-Jardines precedent when he conducted the unlawful dog-sniff search. In 

response, McClintock contends that we cannot apply the Davis exception to this 
8

case without first affording him a chance to develop a factual record regarding the 

issue of good faith. See State v. Esparza, 413 S.W.3d 81, 89 (Tex. Crim. App. 

2013) (refusing to uphold trial court’s ruling under an alternative theory of law 

applicable to the case when the appellant did not have the opportunity to develop a 

factual record on that issue). He also responds that no precedent in the relevant 

jurisdiction specifically authorized the search, which he contends is a necessary 

condition to applying the Davis exception.* See Davis, 131 S. Ct. at 2429; see also 

 * Numerous federal courts of appeals have addressed how explicit or 

settled the appellate precedent must be to trigger the Davis exception. A 

panel of the Third Circuit adopted a strict rule, holding that the precedent 

must be from within the Circuit and specific to the facts at hand. United 

States v. Katzin, 732 F.3d 187, 210 (3d Cir. 2013). That panel’s decision 

was vacated, however, and after rehearing the appeal en banc the court 

rejected such a narrow reading of Davis:

Stated as a syllogism, if binding appellate precedent specifically 

authorizes the precise conduct under consideration, then it will likely 

be binding appellate precedent upon which police can reasonably rely 

under Davis. However, this does not make the reverse syllogism true, 

namely, that if a case is binding appellate precedent under Davis, then 

it must specifically authorize the precise conduct under consideration. 

Davis’ holding is broader: “[e]vidence obtained during a search 

conducted in reasonable reliance on binding precedent is not subject 

to the exclusionary rule.” 

United States v. Katzin, 769 F.3d 163, 176 (3d Cir. 2014) (en banc), cert. 

denied, 135 S. Ct. 1448 (2015). Other courts have also rejected the 

contention that “binding appellate precedent” requires precedent within 

the Circuit and specific to the facts at hand, instead focusing on whether 

reliance on a body of law is objectively reasonable. See United States v. 

Brown, 744 F.3d 474, 478 (7th Cir. 2014); United States v. Stephens, 764 

F.3d 327, 337 (4th Cir. 2014), cert. denied, 83 U.S.L.W. 3860 (U.S. Oct. 
9

id. at 2435 (“This case does not present the . . . question [of] whether the 

exclusionary rule applies when the law governing the constitutionality of a 

particular search is unsettled.”) (Sotomayor, J., concurring in the judgment). 

But we need not address the parties’ arguments about whether Officer 

Arthur acted with objective good-faith reliance on binding precedent if Davis does 

not create a valid exception to the Texas exclusionary statute. If good-faith reliance 

on binding appellate precedent is not a valid exception to the Texas exclusionary 

statute, then we must remand this cause to the trial court for a new trial without the 

evidence that should have been suppressed.

II. Application of the Texas exclusionary statute

Both the U.S. and Texas constitutions protect against unreasonable searches 

and seizures. The Fourth Amendment to the United States Constitution protects the 

“right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures.” U.S. CONST. amend. IV. Similarly, 

the Texas Constitution ensures that people “shall be secure in their persons, 

houses, papers and possessions, from all unreasonable seizures or searches.” TEX.

CONST. art. I, § 9. Neither constitutional provision prescribes a remedy to be 

 

5, 2015); United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013). 

Nevertheless, precise rules about when reliance on appellate precedent is 

objectively reasonable are difficult to ascertain. See Brown, 744 F.3d at 

478 (“There is legitimate debate about whether precedent from Circuit A 

could be deemed ‘binding’ (for the purpose of Davis) when the search 

occurs in Circuit B, where the issue remains unresolved.”).
10

applied when a person’s rights under the provision are violated. See Davis, 131 S. 

Ct. at 2426 (“The [Fourth Amendment] says nothing about suppressing evidence 

obtained in violation of this command.”); Perez v. State, 11 S.W.3d 218, 223 (Tex. 

Crim. App. 2000) (“Whether a violation of [Article 1, Section 9] (e.g. an 

unreasonable search) results in the suppression of evidence obtained as a result of 

that violation (i.e. employment of an exclusionary rule) is a separate, collateral 

issue not encompassed by the right granted in that constitutional provision.”) 

(Keller, J., concurring in the judgment); see also Welchek v. State, 247 S.W. 524, 

528–29 (Tex. Crim. App. 1922). 

Federal courts enforce a judge-made exclusionary rule to “compel respect 

for the constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217, 80 S. 

Ct. 1437, 1444 (1960). The federal rule harbors several exceptions for police 

conduct that was conducted in reasonable reliance on a facially valid source of 

legal justification. See Davis, 131 S. Ct. at 2428–29 (reliance on subsequently 

invalidated binding appellate precedent); Illinois v. Krull, 480 U.S. 340, 350, 107 

S. Ct. 1160, 1167 (1987) (reliance on a subsequently invalidated statute); United 

States v. Leon, 468 U.S. at 922–24, 104 S. Ct. at 3420–21 (reliance on 

subsequently invalidated warrant). 

In Texas, however, the exclusionary rule is not merely a judicial creation. It 

was enacted by the Legislature. See TEX. CODE CRIM. PROC art. 38.23; Miles v. 
11

State, 241 S.W.3d 28, 33–36 (Tex. Crim. App. 2007) (explaining the history of 

Article 38.23 and its precursors). The Texas exclusionary statute is “broader than 

its federal counterpart” and is therefore more broadly protective of individual 

rights. See Miles, 241 S.W.3d at 34.

The federal constitution does not “limit the authority of the State to exercise 

its police power or its sovereign right to adopt in its own Constitution individual 

liberties more expansive than those conferred by the Federal Constitution.” 

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, S. Ct. 2035, 2040 (1980). 

Both the Court of Criminal Appeals and the Supreme Court of Texas have 

observed that “[t]he federal constitution sets the floor for individual rights; state 

constitutions establish the ceiling.” Heitman v. State, 815 S.W.2d 681, 690 (Tex. 

Crim. App. 1991) (quoting LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)). 

Texas courts thus repeatedly have refused “to blindly follow the Supreme 

Court’s decisions interpreting the Fourth Amendment” and instead have conducted 

their own examination of the Texas Constitution and associated statutes. Id.; see 

also Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim. App. 1998). Such 

analyses do not fall afoul of the Supremacy Clause, as they do not lead to holdings 

about an individual’s rights under federal law. Hulit, 982 S.W.2d at 437. Overall, 

“[t]he Supremacy Clause means that, in practical terms, persons will always be 
12

able to avail themselves of the greater right.” Id. Here, the statutory rights provided 

by Article 38.23 are greater than those provided by the federal exclusionary rule.

In relevant part, Article 38.23 provides:

(a) No evidence obtained by an officer or other person in violation of 

any provisions of the Constitution or laws of the State of Texas, or of 

the Constitution or laws of the United States of America, shall be 

admitted in evidence against the accused on the trial of any criminal 

case. . . . 

(b) It is an exception to the provisions of subsection (a) of this Article 

that the evidence was obtained by a law enforcement officer acting in 

objective good faith reliance upon a warrant issued by a neutral 

magistrate based on probable cause. 

TEX. CODE CRIM. PROC. art. 38.23. 

Notably, the statute contains an explicit exception in subsection (b) for 

evidence obtained in objective good-faith reliance on a warrant “based on probable 

cause.” The Court of Criminal Appeals has refused to entertain exceptions to the 

Texas exclusionary rule that are not consistent with Article 38.23’s text. Compare

Wehrenberg v. State, 416 S.W.3d 458, 468 (Tex. Crim. App. 2013) (recognizing 

independent-source doctrine as an exception, consistent with the statute), with 

State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (refusing to 

recognize inevitable-discovery doctrine, because it is inconsistent with the statute). 

This is in accordance with the general rule that “where an express exception exists 

in a statute, the statute must apply in all cases not excepted.” Garcia v. State, 829 

S.W.2d 796, 800 (Tex. Crim. App. 1992). 
13

The Court of Criminal Appeals has held that Article 38.23(a)’s use of the 

term “obtained” calls for the exclusion of evidence only when there is a “causal 

connection” between the illegal conduct and the acquisition of the evidence. 

Wehrenberg, 416 S.W.3d at 468. Consequently, doctrines that exempt evidence 

from exclusion are consistent with the statute only when they do not involve such a 

causal connection. See id. at 469–70; Johnson v. State, 871 S.W.2d 744, 750 (Tex. 

Crim. App. 1994). When a causal connection between the illegal conduct and the 

acquisition of evidence is present, the evidence has been “obtained” in violation of 

the law, and the evidence must be excluded under Article 38.23 regardless of any 

exception applied under federal law. See Daugherty, 931 S.W.2d at 271; accord 

Howard v. State, 617 S.W.2d 191, 193 (Tex. Crim. App. 1979) (op. on reh’g) 

(declining to adopt exception for good-faith reliance on a subsequently invalid 

statute). 

The Davis exception assumes a causal connection and thus cannot be applied 

under Article 38.23(a). The Davis doctrine involves illegal police conduct that 

directly causes the acquisition of the evidence. See Davis, 131 S. Ct. at 2430–32 

(clarifying that the Court’s retroactivity jurisprudence established that police in 

that case acquired evidence through unlawful means). Good-faith reliance on 

binding precedent is not a doctrine that eliminates the causal connection between 

the illegal activity and the acquisition of the evidence. Rather, it treats that 
14

connection as a given. The exception is thus inconsistent with Article 38.23’s text. 

See Daugherty, 931 S.W.2d at 270 (once “the illegality and its causal connection to 

the evidence have been established, the evidence must be excluded” under Article 

38.23).

Rather than arguing that the Davis exception for good-faith reliance on 

appellate precedent is consistent with the text of Article 38.23(a), the State argues 

that the marijuana evidence seized from McClintock’s home should be exempted 

from exclusion under Article 38.23(b). Subsection (b) provides an exception to 

subsection (a) for evidence obtained by an officer “acting in objective good faith 

reliance upon a warrant issued by a neutral magistrate based upon probable cause.” 

TEX. CODE CRIM. PROC. art. 38.23(b). The State asserts that the Davis exception 

applies in this case to save the dog-sniff evidence from being excluded from the 

magistrate’s probable-cause determination.

The State concedes that, according to binding precedent, a “search warrant 

may not be procured lawfully by the use of illegally obtained information.” State v. 

Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015) (quoting Brown v. 

State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980), overruled on other grounds 

by Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989)). Ordinarily, when a 

search warrant is issued on the basis of an affidavit containing illegally obtained 

information, as it was in this case, the evidence seized pursuant to the warrant is 
15

admissible only if the independently and lawfully acquired information in the 

affidavit clearly established probable cause. McClintock, 444 S.W.3d at 19;

Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—Houston [1st Dist.] 2009, pet. 

ref’d). The warrant in this case did not contain sufficient lawfully acquired 

information to clearly establish probable cause without the dog-sniff evidence. 

McClintock, 444 S.W.3d at 19–20.

The State argues that because Officer Arthur acted in good-faith reliance on 

pre-Jardines precedent when he conducted the dog-sniff search, the dog-sniff 

evidence should be acceptable to support the magistrate’s probable-cause 

determination. This would allow the warrant the officers relied on to seize the 

marijuana evidence in this case to be a “warrant issued by a neutral magistrate 

based on probable cause,” and therefore render the marijuana evidence admissible 

under the statutory exception. TEX. CODE CRIM. PROC. art. 38.23(b). The State 

contends that the bar against consideration of illegally obtained evidence in the 

probable cause determination for a warrant is a “judicial construct,” not rooted in 

Article 38.23’s text, which can be modified “as policy demands.” 

We are not persuaded by the State’s argument that policy considerations 

justify disregarding Article 38.23(b) and applying the Davis exception to cure a 

flawed probable-cause determination. The State ignores the fact that it seeks an 

exception to a statutory remedy governed by Article 38.23. The Court of Criminal 
16

Appeals has expressly held that the decision to implement such an exception must 

be rooted in an analysis of the text of Article 38.23. When considering whether the 

“inevitable discovery” doctrine could exempt evidence from exclusion in Texas, 

the Court explained: 

The whole issue here is whether for purposes of interpreting 

Article 38.23(a), we agree that “inevitable discovery” really does 

break the causal connection between the illegality and the evidence. 

That depends, of course, upon what Article 38.23(a) means when it 

says “evidence obtained in violation of” law. And this is purely a 

question of statutory construction. Not even the Supreme Court would 

presume to instruct us on how our own statutes should be construed. 

Were we implementing a court-made rule we would of course be free 

to follow the lead of the United States Supreme Court. However, 

because this is a statute enacted by the Texas Legislature, we are 

required to interpret the language of the statute in order to implement 

the legislative intent in enacting it.

Daugherty, 931 S.W.2d at 271. We, too, anchor our analysis to the text of 

Article 38.23, not our own evaluation of the wisdom of its policy. 

Here, the State asks us to broaden the exception of Article 38.23(b) in a 

manner not supported by its text. It is true, as the State argues, that the text of 

Article 38.23(b) does not expressly forbid the consideration of illegally obtained 

evidence when considering whether the magistrate’s warrant was based on 

probable cause. But nothing in subsection (b) expressly supports the State’s 

expansive reading either, and “[w]here a statute contains an express exception, its 

terms must apply in all cases not excepted.” Daugherty, 931 S.W.2d at 270. Thus, 
17

subsection (a) must apply to suppress all evidence not expressly excepted by 

subsection (b). 

The Court of Criminal Appeals has held that the phrase “based on probable 

cause” in Article 38.23(b) requires an independent finding of probable cause; an 

officer’s good-faith reliance on a warrant subsequently invalidated for lack of 

probable cause does not fulfill the statutory exception. See Curry v. State, 808 

S.W.2d 481, 482 (Tex. Crim. App. 1991). The exception in subsection (b) has only 

been satisfied in cases involving technical defects in warrants, not warrants with 

defects concerning probable cause. See, e.g., Dunn v. State, 951 S.W.2d 478, 479 

(Tex. Crim. App. 1997) (concluding that exception applied in case where warrant 

lacked magistrate’s signature); Brent v. State, 916 S.W.2d 34, 38 (Tex. App.—

Houston [1st Dist.] 1995, pet. ref’d) (holding that exception applied despite 

warrant based on unsigned affidavit). Furthermore, as recognized above, illegally 

obtained evidence cannot provide the probable cause necessary to support a 

warrant. Le, 463 S.W.3d at 877.

The State suggests that Davis provides a reason to deviate from these past 

decisions. But the Court of Criminal Appeals already has recognized that its 

interpretation of Article 38.23(b) stands in contrast to the federal good-faith 

exception, established in United States v. Leon, for officers relying on a 

subsequently invalidated warrant. See Curry, 808 S.W.2d at 482 (“[Article 
18

38.23(b)] requires a finding of probable cause, while the exception enunciated in 

Leon appears more flexible in allowing a good faith exception if the officer’s belief 

in probable cause is reasonable.”). 

The State’s proposed application of the Davis exception essentially mirrors 

past attempts to use Leon, which the Court of Criminal Appeals already has held 

does not satisfy the text of Article 38.23(b). Tellingly, the Supreme Court itself 

recognized that its decision in Davis was merely an extension of the good-faith 

exception established in Leon. See Davis, 131 S. Ct. at 2428–29 (“Under our 

exclusionary rule precedents, [the] acknowledged absence of police culpability 

dooms Davis’s claim. . . . Indeed, in 27 years under Leon’s good-faith exception, 

we have ‘never applied’ the exclusionary rule to suppress evidence obtained as a 

result of nonculpable, innocent police conduct.”). We do not perceive any 

difference between the arguments previously rejected by the Court of Criminal 

Appeals and the State’s proposed application of Davis.

We reject the State’s proposed application of the Davis exception to allow 

consideration of illegally obtained evidence in the magistrate’s probable cause 

analysis for a warrant. As the Court of Criminal Appeals affirmed, the dog-sniff 

search was unlawful. Binding precedent holds that illegally obtained evidence 

cannot provide probable cause to support a warrant. Based on past interpretation of 

Article 38.23, we conclude that the good-faith exception established in Davis does 
19

not apply to allow the State to use the illegal dog-sniff evidence to support the 

warrant. As a result, the warrant used to seize the marijuana evidence from 

McClintock’s residence was “not based on probable cause,” and the marijuana 

evidence does not satisfy Article 38.23(b). Accordingly, the Texas exclusionary 

statute applies and the marijuana evidence must be suppressed. See TEX. CODE 

CRIM. PROC. art. 38.23(a).

Conclusion

We overrule the State’s sole issue. We remand the case to the trial court for 

a new trial without the evidence that should have been suppressed. 

Michael Massengale

Justice

Panel consists of Justices Keyes, Massengale, and Brown

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).