# State v. Cuong Phu Le

> Court of Criminal Appeals of Texas · April 29, 2015 · 463 S.W.3d 872

URL: https://www.frixlaw.com/law-library/cases/9812499

## Case

- **Full name:** The STATE of Texas v. CUONG PHU LE, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 29, 2015
- **Citations:** 463 S.W.3d 872; 2015 Tex. Crim. App. LEXIS 516; 2015 WL 1933960
- **Precedential status:** Published
- **Opinion:** Dissent by Meyers
- **Judges:** Newell, Keller, Johnson, Keasler, Hervey, Richardson, Yeary, Meyers, Alcala
- **Cited by:** 91 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9812499

## How later opinions describe it (automated extraction)

- noting that a search warrant will be regarded as valid "if it clearly could have been issued on the basis of the untainted information[,]" but then applying the ordinary probable cause standard to evaluate the sufficiency of the untainted information
- holding that police officer’s verification of arguably stale information from anonymous informant provided probable cause for search warrant
- stating that probable cause must be assessed under the totality of the circumstances and is a “flexible, non-demanding standard”
- holding that the court of appeals properly considered the 9 anonymous citizen information supporting the affidavit.

## Opinion text

DISSENTING OPINION
Meyers, J.
The majority reverses the trial court and the court of appeals and concludes that probable cause exists for the search warrant in this case despite the fact that the drug-sniffing dog’s alert could not be considered under Florida v. Jardines, — U.S. -, 133 S.Ct. 1409 , 185 L.Ed.2d 495 (2013). However, I believe that the majority has stretched its reasoning in order to have the desired outcome for the State here. In the absence of the dog-sniff evidence, probable' cause for a search warrant was not established.
The evidence presented in the affidavit for the search warrant — minus the dog sniff — included the report from the concerned citizen, an officer’s observation that the blinds were tightly drawn, the fact that the utilities were registered to Appellee, the fact that Appellee’s drivers license bore a different home address, an officer’s observation of the smell of marijuana outside the home two weeks prior, an officer’s observation that the air conditioning was running when it was 38 degrees outside, and an officer’s observation of the smell of marijuana from Appellee’s vehicle when stopped for traffic violations. I do not believe that these facts establish probable cause, and it insults our intelligence for the State to argue that the magistrate approved this warrant based on anything other than the dog sniff. If this evidence *882 were sufficient to establish the probable cause for the warrant, then why would the officers have waited to perform the traffic stop and conduct the dog sniff before requesting the warrant?
This case is similar to Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2018), in which the court was also faced with a search warrant that was obviously based on illegal probable cause. 1 However, rather than stop themselves from repeating the same mistake, the court has again come back and validated a warrant that was originally based on facts — here, the dog sniff — that are not valid to constitute probable cause under our law. When one disregards the dog sniff, the remaining evidence in this ease does not establish probable cause, and it was certainly not an abuse of discretion for the trial judge to conclude otherwise. For these reasons, I would uphold the ruling of the court of appeals and I respectfully dissent.
. In Wehrenberg , officers made an unlawful and unwarranted entry into a home, conducted a sweep, and only then secured a search warrant. The State argued that the probable cause for the warrant was based on a confidential informant, when in reality it was based upon the officers' illegal entry into the home. .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812499. Public record. Not legal advice.