Sidestepping the Supreme Court: High Electrical Usage Justifies Front-Door Sniff in Texas

Sergeant Robert Clark, working on a narcotics task force, initiated an investigation of a grow house in December 2010 after receiving an anonymous tip.  The tip was that hydroponic marijuana was being grown at a house near Houston, Texas, in Harris County.  He drove to the location to determine whether he could observe indicators of a grow house.  In addition to seeing a vehicle belonging to the individual about whom the tip had been given, the Texas appellate court states:

“At the address, he observed the windows were tightly covered; the yard was a little unkempt; and even though two vehicles were in the driveway, the home appeared vacant, all of which are typical indicators of a grow house. He traveled to the home several more times that week in a ‘drive-by surveillance,’ and on each of these occasions, he observed other indicators typical of a grow house, such as exterior lights on during the daytime hours and no vehicles on the premises. On one of these occasions, he saw another vehicle, registered to appellant, leaving the home.”

Sergeant Clark executed a subpoena on Centerpoint Energy and learned that the electrical usage at the home was unusually high, and had increased significantly from March 2010 to December 2010.  Prior to March, usage had been low, indicating either that it had been vacant or possibly that the electrical meter had been bypassed, which is common with grow houses.  Later, it was established that the meter had been bypassed, then repaired, resulting in the increased usage from March on.  Centerpoint Energy listed the account for the home in the name of Wesley Jerome Wright.

The court’s narrative of events describes the use of a narcotics detection dog:

“On December 6, 2010, Sergeant Clark initiated a ‘knock and talk’ investigation at the home. When he arrived, he observed a vehicle registered to appellant in the driveway, the blinds to the home tightly closed, and the home's exterior lights on during day-time hours. Sergeant Clark called other uniformed law enforcement officers for assistance, as well as a narcotics-detection dog. Once other officers, including Deputy James Savell, arrived on the scene, they approached the home in raid gear and prepared to raid the home. The officers knocked several times without any response. They heard music inside the home. At the front door, they detected the odor of ‘skunk weed,’ a strong-smelling type of marijuana. Once the officers detected that odor, and after knocking again at the door with no response, the narcotics-detection dog was asked to conduct an “open air sniff” of the exterior of the front door; the dog alerted to the presence of marijuana. Deputy Savell then left the premises, sought and obtained a search warrant of the home, and returned to the scene.”

The warrant was then executed:

“Armed with a search warrant, the officers again approached the home in raid gear, knocked on the door and received no response. They entered and once inside, officers detected the strong odor of marijuana and saw that a bedroom and garage had been converted to hydroponic grow rooms containing in total 155 live marijuana plants, with an estimated value of $138,000. Another room contained marijuana that already had been dried and harvested. Officers observed equipment and supplies associated with hydroponic marijuana cultivation and packaging. The rooms of the home were insulated and carefully controlled with lighting, ventilation, and temperature apparatuses. Two of appellant's separate fingerprints were identified and lifted from a metal halide light shroud in one of the growing rooms. The kitchen had no food and very few typical kitchen items. The home contained little furniture and no clothing, and appeared as if no one had lived in the home recently. There was one bed, but it did not appear as if anyone had slept there because it was covered with other items. Inside the home, officers found documents, some of which were dated over one year old, belonging to several other individuals. According to officers who executed the search warrant, although a single person could tend to a hydroponic operation of this complex scale, that person would need to be at the home at least every one to two days.”

A neighbor told Sergeant Clark that he had seen Wesley Wright at the home the day before, and he was able to give a history of Wright’s use of the home, initially with his wife, then after Wright’s divorce with other people.  An arrest warrant was issued for Wright a week after the raid and Wright turned himself in to authorities. 

Wright filed a motion to suppress with the trial court, arguing, among other things, that the dog’s open-air sniff was a warrantless search without probable cause that was prohibited by the Fourth Amendment.  Wright presented some evidence that he had leased the premises from February 2010 but kept the electrical bill in his own name because of the tenant’s poor credit.  Wright’s current wife stated that she and Wright had gone to collect rent or tend to the yard on occasion but had not entered the house.  She testified that they left a car overnight outside the house once because it would not start, but her testimony was inconsistent with some of that given by the neighbor.  The police were unable to locate anyone with the name that Wright gave them for the tenant, and they question whether such a person even existed. 

A jury found Wright guilty of a narcotics offense and he was sentenced to eight years in prison.  He appealed.

Appeal

Among other issues raised on appeal, Wright argued that:

1. Sergeant Clark lacked probable cause to conduct a “knock and talk” investigation.
2. Though the alert of a trained and certified narcotics-detection dog provides probable cause for the issuance of a search warrant, this court could not consider the statements in the affidavit regarding the narcotics-detection dog.  This is because the officers lacked reasonable suspicion that drugs or contraband were at the location before using the narcotics-detection dog, and without the alert by the narcotics-detection dog, the affidavit does not show probable cause for issuing a search warrant.

These arguments were not made during the trial, however, and the appellate court determined that Wright had “thus failed to preserve error as to these complaints.”  Also, on appeal, Wright “has not asserted his trial-court arguments that the use of the narcotics-detection dog itself was an impermissible search or that probable cause was required before the officers could use the dog.  Thus, these arguments are not before this court.” It is not clear why Wright’s counsel did not preserve these issues for the appeal. 

As to the effect of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), which had not been issued before appellate briefs were filed in Wright, the Texas appellate court stated:

“The information in the affidavit other than the statements regarding the narcotics-detection dog was acquired independently from the use of the dog and in a lawful manner. Thus, even if the use of the narcotics-detection dog were an unreasonable search that violated the United States Constitution, the search warrant would not be rendered invalid if, putting aside the statements in the affidavit regarding the dog, the remaining information in the affidavit clearly established probable cause.”

The non-canine evidence in the affidavit included:

“(1) information from a credible and reliable source indicated the electrical power meter at the home had been bypassed and altered to display a lower usage reading; (2) Sergeant Clark knows, via training and experience in investigating indoor hydroponic marijuana-growing operations that electrical meters are often bypassed to avoid detection; (3) information from a credible and reliable source further indicated that Centerpoint Energy Company fixed the meter in February 2010; (4) once the meter was repaired the power usage sharply increased to rates roughly five times that of adjacent houses of similar size; (5) every window in the residence had mini-blinds that were tightly shut, which was known to Deputy Savell to be a common characteristic of marijuana grow houses; (6) area residents reported that individuals were only at the house on a sporadic basis, which was known by Deputy Savell to be a common characteristic of marijuana grow houses; (7) a vehicle registered to appellant was observed at the residence; and (8) appellant has a prior arrest and conviction for narcotics distribution.”

Thus, Justice Kem Thompson’s majority opinion concluded:

“Even if the use of the narcotics-detection dog were an unreasonable search that violated the United States Constitution, we would conclude that under the totality of circumstances the remaining information in the affidavit would clearly establish probable cause that contraband or evidence of a crime would be found at the described location.”

The court therefore affirmed Wright’s conviction.

Dissent

Justice Tracy Christopher dissented, arguing that she “would hold that, after removal of the dog sniff alert from the affidavit, the remaining facts in the affidavit are insufficient to clearly establish probable cause.”  She agreed that the removal of the evidence from the illegal search could arguably leave enough other evidence to establish probable cause, but argued that this was not true here.  She noted that Jardines involved similar information:  “an uncorroborated crime stoppers tip that marijuana was being grown at the house, tightly closed blinds, and an air conditioner that kept cycling without stopping, indicating high electrical usage.” 

As to the anonymous tip, Justice Christopher said that “Clark never established the informant’s credentials in any meaningful way.”  This should perhaps have been of more concern to the trial court. 

As to the electrical usage, the affidavit did not establish how it was calculated that the house’s usage was five times what would be expected in the neighborhood. The mini-blinds that were “tightly drawn” and the testimony of individuals being seen at the house on only a sporadic basis were “innocent facts,” according to the dissent. 

The vehicle sometimes parked outside the house was not associated with any crime. 

Justice Christopher concluded:

“In sum, we have uncorroborated, possibly stale, excessive electrical usage, closed blinds, and sporadic sightings of the residents of the house. This cannot be enough to clearly establish probable cause that a crime is being committed. Because the majority concludes that it is, I dissent.”

Jardines

The authors are preparing a law review article analyzing Jardines, along with Harris, the other police canine case issued by the Supreme Court in the last term and will reserve a more complete evaluation of those decisions for that venue. 

The Supreme Court opinions in Jardines, both the majority opinion, the concurrence, and the dissent, largely restricted their debate to the issues surrounding the use of the dog.  To get more of the non-canine facts, one must look at the prior trail of appellate decisions, particularly that of the Florida Supreme Court (Jardines v. Florida, 73 So.3d 34 (Fla. 2011).  The affidavit submitted to obtain the warrant in Jardines consisted of the following:

1. A “crime stoppers tip that marijuana was being grown at the describe residence.
2. Surveillance at the residence included the observation of “no vehicles in the driveway.”
3. The officer “observed windows with the blinds closed.”
4. The smell of live marijuana plants was detected when the officer was on the front porch with the dog.
5.  The officer “heard an air conditioning unit on the west side of the residence continuously running without recycling.”

Thus, the only significant differences between the facts of Wright and those of Jardines were the greater effort made in Wright to determine the pattern of electrical usage of the premises and the description of the visits of the defendant by one of Wright’s neighbors.  Whether this is enough to justify the opposite result to that mandated by the U.S. Supreme Court may be determined in subsequent appellate proceedings in Wright. 

Conclusion

It often takes years for the significance of a Supreme Court decision to become apparent.  Because the Court was so divided in Jardines, lower courts may feel less constricted in applying its pronouncements to situations that are similar.  Police will want to get more evidence before they bring a dog to a front porch than was the case in Jardines, but how much more will only become clear as courts handle variations in facts of front-door sniffs in the coming years.  It should not be assumed that the same facts as in Wright will lead to the same result in other jurisdictions. 

Wright v. Texas, No. 14-12-00285-CR, 2013 WL 1908932 (App. Ct. 2013).  On “knock and talk” as an investigative technique, see Craig Bradley, “Knock and Talk” and the Fourth Amendment, 84 Indiana Law Journal 1099 (2009).

This blog was written by John Ensminger and L.E. Papet.