Perez, Osvaldo Miguel ( 2015 )


Menu:
  •               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.
    

Document Info

Docket Number: PD-0231-15

Filed Date: 3/31/2015

Precedential Status: Precedential

Modified Date: 9/29/2016