NO. PD-0231-15 March 31, 2015
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
OSVALDO MIGUEL PEREZ
Petitioner,
vs.
THE STATE OF TEXAS
Petition for Review of the
Eighth Court of Appeals
Judgment in No. 08-13-00024-CR
affirming conviction in Cause No. 20120D01211
from The Criminal District Court Number One
El Paso County, Texas
PETITION FOR DISCRETIONARY REVIEW
Ruben P. Morales
Attorney for Petitioner
Texas Bar No. 14419100
718 Myrtle Ave.
El Paso, Texas 79901
915 - 542 - 0388
915 - 225-5132 fax
rbnpmrls@gmail.com
SUBMITTED: March 30, 2015
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ..............................................iv
STATEMENT OF THE CASE .................................................................................. v
STATEMENT OF PROCEDURAL HISTORY........................................................ v
GROUNDS FOR REVIEW ....................................................................................... 1
ARGUMENT
1. Whether the Eighth Court erred in determining that a drug dog’s positive
alert for narcotics at the front door of defendant’s residence provided
sufficient residual probable cause for the issuance of a search warrant to enter
defendant’s home, in light of the Supreme Court’s opinion in Florida v.
Jardines…………………………………………………………………………...…1
PRAYER FOR RELIEF ............................................................................................ 7
CERTIFICATE OF SERVICE .................................................................................. 7
CERTIFICATE OF COMPLIANCE……………………………………………….8
APPENDIX A Eighth Court Opinion .................................................... Attachment 1
ii
INDEX OF AUTHORITIES
FEDERAL CASES
Florida v. Jardines, 133 S. Ct. 1409, 1411 185 L. Ed. 2d 495 (2013)…...1, 2 4, 5, 6
TEXAS CASES
Perez v. State, No., 2014 WL 7237732, at *1 (Tex. App. Dec. 19, 2014) .......... 4, 5
Rivas v. State, 411 S.W.3d 920, 921 (Tex. Crim. App. 2013)................................... 6
State v. Weaver, 349 S.W.3d 521, 527 (Tex. Crim. App. 2011) ........................... 4, 5
CONSTITUTIONS AND STATUTES
TEX. R. APP. P. 66.3(c) ............................................................................................ 4
TEX. R. APP. P. 66.3(f)............................................................................................. 4
iii
STATEMENT REGARDING ORAL ARGUMENT
Petitioner does not believe that oral argument is necessary.
iv
STATEMENT OF THE CASE
Petitioner was charged in a three count indictment with unlawful possession
of cocaine with the intent to deliver, unlawful possession of a firearm by a felon, and
unlawful possession of metal or body armor by a felon. CR at 3-5. Appellant filed a
pretrial motion to suppress evidence alleging a lack of probable cause to justify the
issuance of the search warrant which was used to justify the search of his home. CR
at 41-47. The trial court denied the motion. R. 2:14. Appellant pled guilty pursuant
to a plea agreement and his punishment was assessed by the trial court at 3 and ½
years in prison on each count, all sentences to run concurrently.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant filed a timely Notice of Appeal on February 1, 2013. On December
19, 2014, the Eighth Court affirmed Appellant’s conviction in an unpublished
opinion. Perez v. State, 2014 WL 7237732 (Tex. App. – El Paso, 2014). A motion
for rehearing was timely filed on January 6, 2015 and denied on January 28, 2015.
This Court granted an extension of time in which to file a petition for discretionary
review until March 30, 2015.
v
GROUNDS FOR REVIEW
1. Whether the Eighth Court erred in determining that a drug dog’s positive alert
for narcotics at the front door of defendant’s residence provided sufficient
residual probable cause for the issuance of a search warrant to enter
defendant’s home, in light of the Supreme Court’s opinion in Florida v.
Jardines.
1
ARGUMENT GROUND 1
Petitioner’s home was searched pursuant to a search warrant. At the motion
to suppress, it was established that the affidavit used to obtain the search warrant
contained false information. Specifically, the officer claimed that he had previously
purchased drugs at Petitioner’s home when in fact, he had not. The Eighth Court
upheld the search of Petitioner’s home because “the trained drug dog’s positive
reaction to drugs in the residence provided sufficient probable cause to issue a search
warrant without the officer’s false statement.” The Eighth Court’s holding is
contrary to established Supreme Court precedent. In Florida v. Jardines, the
Supreme Court expressly held that the use of a narcotics dog to investigate the home
and its immediate surroundings is a search within the meaning of the Fourth
Amendment. It further held that a search warrant issued on the basis of information
gathered through such an illegal search is invalid. Consequently, the Eighth Court
erred when it upheld the search of Petitioner’s residence on the basis of an illegal
dog sniff at his front door.
Relevant Facts
On March 6, 2012, Petitioner’s home was searched pursuant to a search
warrant. As a result of the search, Petitioner was arrested, charged and indicted for
possession of cocaine, and unlawful possession of a firearm and body armor.
Petitioner moved to suppress the evidence alleging that the search warrant was
issued without sufficient probable cause. The trial court denied the motion.
The “Affidavit for Search Warrant” listed the following facts to justify the
issuance of the search warrant:
1. Affiant received information from a confidential informant that Petitioner
was trafficking narcotics from his home. No additional information was
2
provided regarding the confidential informant. CR. at 46.
2. Officers approached Petitioner’s home and deployed a drug sniffing dog
outside the front door of Petitioner’s home. The dog alerted on Petitioner’s
home as having an odor of narcotics coming from within the home. CR. at
46; and
3. A no knock warrant was needed because affiant had previously purchased
small plastic baggies containing marijuana from Petitioner’s residence and
the small baggies could easily be disposed of or destroyed. CR. At 47.
At the motion to suppress hearing, the State admitted that the statement
regarding the purchase of marijuana from Petitioner’s residence was false. R. 2:9. It
also admitted that an anonymous tip, standing alone, is not enough to justify a search
warrant. R. 2:13. However, the State argued that the positive dog alert taken together
with the information obtained from the confidential informant was sufficient to
justify the issuance of the search warrant. R. 2:13.1
Opinion of the Court of Appeals
In affirming Petitioner’s conviction, the Eighth Court wrote: “Because the
trained drug dog's positive reaction to drugs in the residence provided sufficient
1 The reasonableness of the officer’s no-knock entry was not litigated at the motion to suppress nor was it briefed
on appeal. Although the warrant authorized a no-knock entry, it is unclear from the record whether that actually
occurred. However, since probable cause for the issuance of any warrant was lacking, it is unnecessary to decide
whether a no-knock entry was authorized.
3
probable cause to issue a search warrant without the officer's false statement, we find
no reversible error in the judge's failure to grant the motion.” Perez v. State, No.
08-13-00024-CR, 2014 WL 7237732, at *1 (Tex. App. Dec. 19, 2014). The Eighth
Court also erroneously cited this Court’s opinion in State v. Weaver, 349 S.W. 3d
521, 528(Tex. Crim. App. 2011) for the proposition that a positive alert by a certified
drug dog is sufficient probable cause to search a home.
Reasons for Review
Review should be granted because the Eighth Court has decided an important
question of state and federal law in a way that conflicts with the applicable decisions
of the Court of Criminal Appeals and the Supreme Court of the United States. TEX.
R. APP. P. 66.3(c). Review should also be granted because the Eighth Court has so
far departed from the accepted and usual course of judicial proceedings, or so far
sanctioned such a departure by a lower court, as to call for an exercise of the Court
of Criminal Appeals' power of supervision. TEX. R. APP. P. 66.3(f).
In Florida v. Jardines, police received an unverified tip that marijuana was
being grown in the home of Jardines. 133 S. Ct. 1409, 1411 185 L. Ed. 2d 495
(2013). A surveillance team was sent out to investigate. Id. As part of the
investigation, a drug-sniffing dog was allowed to sniff the front porch of Jardines
home. Id. After sniffing the base of the front door to the home, the dog alerted to
4
the odor of narcotics. Id. Based on the alert, police obtained a warrant for a search,
which revealed marijuana plants. Id. The Supreme Court held that deployment of the
drug dog on the front porch of the residence constituted a search for Fourth
Amendment purposes. Id. at 1417-1418. Consequently, absent a warrant or exigent
circumstances, the dog sniff of the porch was not authorized. Id. At 1420. In this
case, absent the false information that was excluded from the warrant, the facts are
almost identical. Police received information that Petitioner was dealing drugs
from his home. Police investigated by allowing a drug-sniffing dog to sniff the front
door to Petitioner’s home. The dog alerted and, on the basis of this alert, the police
obtained a search warrant for Petitioner’s residence. But, unlike the Supreme Court
in Jardines, the Eighth Court held that the dog sniff provided sufficient probable
cause for the issuance of a warrant.
The Eighth Court exacerbates the error by citing this Court’s opinion in State
v. Weaver, for the proposition that “a positive alert by a certified drug dog is
sufficient probable cause to search [a home].” Perez v. State, 2014 WL 7237732, at
*1. Weaver involved the search of a vehicle. State v. Weaver, 349 S.W.3d 521, 527
(Tex. Crim. App. 2011). Ultimately, this Court’s holding in Weaver was that the
dog sniff of the vehicle and the subsequent search of the vehicle were improper. Id.
at 52. However, the general legal principles discussed in Weaver were specific to
5
vehicle search cases. The Supreme Court in Jardines, makes clear that when it comes
to the Fourth Amendment, “the home is first among equals.” Jardines, 133 S. Ct. at
1414. At the core of the Fourth Amendment is the right of a person to retreat into
their home and there be free from unreasonable governmental intrusion. Id. The
Supreme Court further states that the right is of little value if State’s agents are able
to stand in a home’s porch and search for evidence with impunity. Id.
Conclusion
This Court should grant review because it is undisputable that the Eighth
Court misapplied precedent from the Supreme Court and from this Court. The
relevant Supreme Court precedent mandates the opposite result of that reached by
the Eighth Court. The Eighth Court opinion issued over twenty-one months after
Jardines, fails to mention or even allude to this key Supreme Court precedent which
is directly on point. In at least one published case, this Court vacated a decision by
the Court of Appeals that did not consider Jardines. See Rivas v. State, 411 S.W.3d
920, 921 (Tex. Crim. App. 2013). Similarly, the facts of this case require that this
Court grant review and correct the erroneous decision of the Eighth Court.
6
PRAYER FOR RELIEF
For all the reasons stated above, Petitioner respectfully requests that the
Honorable Court of Criminal Appeals grant this petition for discretionary review.
Respectfully submitted,
/s/ Ruben P. Morales
Ruben P. Morales
Attorney for Petitioner
Texas Bar No. 14419100
718 Myrtle Avenue
El Paso, Texas 79901
915 - 542 - 0388
915 - 225 - 5132 fax
Certificate of Service
I certify that on March 30, 2015 a copy of this petition was delivered via efile
to the Office of the El Paso County District Attorney at DAappeals@epcounty.com,
and to the State Prosecuting Attorney at information@spa.texas.gov.
/s/ Ruben P. Morales
Ruben P. Morales
7
CERTIFICATE OF COMPLIANCE
I certify that Appellant’s Petition for Discretionary Review contains 1,455
words and complies with the applicable Rules of Appellate Procedure.
/s/ Ruben P. Morales
Ruben P. Morales
8
Perez v. State, Not Reported in S.W.3d (2014)
in violation of constitutional and state-law rights. The
narcotics officer claimed falsely in the affidavit that he
2014 WL 7237732
had purchased small baggies containing marijuana from
Only the Westlaw citation is currently available.
Appellant's residence. The State admitted that Officer Harvel
SEE TX R RAP RULE 47.2 FOR made the false statement. The trial court denied the motion.
DESIGNATION AND SIGNING OF OPINIONS.
OPINION
ANALYSIS
(DO NOT PUBLISH)
Court of Appeals of Texas, The Fourth Amendment of the United States Constitution
El Paso. requires a finding of probable cause before a search warrant
may be issued. State v. Crisp, 74 S.W.3d 474, 483-84
Osvaldo Miguel Perez, Appellant,
(Tex.App.—Waco 2002, no pet.). To show probable cause
V.
and obtain a search warrant, narcotics officer Harvel stated
The State of Texas, Appellee. in his affidavit that he had received reliable information
from a confidential source that Appellant was trafficking
No. 08-13-00024—CR I December 19, 2014
narcotics from the named address. In support of his request
Appeal from the Criminal District Court No. 1 of El Paso for a "no-knock" warrant, Officer Harvel claimed falsely that
County, Texas, (TC #20120D0I211) he had purchased plastic baggies containing marijuana from
Appellant at the suspected place and, based on his experience,
Attorneys and Law Firms he believed a delay of entry would allow time for the named
party to destroy the marijuana. Harvel had never purchased
Jaime E. Esparza, Douglas K. Fletcher, for The State of Texas. drugs from Appellant. Appellant argues that without Officer
Harvel's false statement, the affidavit lacked probable cause
Daniel Robledo, for Osvaldo Miguel Perez.
to issue a search warrant for Appellant's home.
Before McClure, C.J., Barajas, C.J. (Senior Judge), Chew,
C.J. (Senior Judge) In Appellant's sole issue, he contends that the State violated
his Fourth Amendment rights against illegal search and
seizure when officers searched his home without probable
OPINION cause for the search warrant. He complains that the judge
abused his discretion in denying the motion to suppress
ANN CRAWFORD McCLU RE, Chief Justice because, without the officer's false claim, the State lacked
probable cause to obtain a search warrant.
*1 Osvaldo Miguel Perez appeals his conviction in three
counts for: unlawful possession of cocaine with the intent to The State counters that Appellant was not harmed by Harvel's
deliver; the unlawful possession of a firearm by a felon; and false claim since a trained drug canine had previously alerted
the unlawful possession of body armor by a felon. Appellant for drugs at the front door of the house. See State v. Weaver.
claims that Officer Harvel made false claims in his affidavit to 349 S.W.3d 521, 528 (Tex.Crim.App.2011)(a positive alert
show probable cause to support the warrant and that the trial by a certified drug dog is sufficient probable cause to search).
court abused its discretion in denying his motion to suppress. Because the trained drug dog's positive reaction to drugs in
the residence provided sufficient probable cause to issue a
search warrant without the officer's false statement, we find
FACTUAL SUMMARY no reversible error in the judge's failure to grant the motion.
We overrule the sole point and affirm the judgment of the trial
On March 6, 2012, following a search of his home, Appellant court below.
was indicted for possession of cocaine, and for unlawful
possession of a firearm and body armor. He filed a pretrial
motion to suppress the evidence alleging that the warrant
Barajas, C.J. (Senior Judge), sitting by assignment
was obtained by the officer's false statements in the affidavit
WestLwNext 2015 Thomson Reuters. No chm to orgnal U.S. Government Works.