Osvaldo Miguel Perez v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
OSVALDO MIGUEL PEREZ, §
No. 08-13-00024-CR
Appellant, §
Appeal from the
v. §
Criminal District Court No. 1
§
THE STATE OF TEXAS, of El Paso County, Texas
§
Appellee. (TC#20120D01211)
§
OPINION
Osvaldo Miguel Perez appeals his conviction in three counts for: unlawful possession of
cocaine with the intent to deliver; the unlawful possession of a firearm by a felon; and the unlawful
possession of body armor by a felon. Appellant claims that Officer Harvel made false claims in
his affidavit to show probable cause to support the warrant and that the trial court abused its
discretion in denying his motion to suppress.
FACTUAL SUMMARY
On March 6, 2012, following a search of his home, Appellant 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 was obtained by the officer’s false statements in the
affidavit in violation of constitutional and state-law rights. The narcotics officer claimed falsely
in the affidavit that he had purchased small baggies containing marijuana from Appellant’s
residence. The State admitted that Officer Harvel made the false statement. The trial court
denied the motion.
ANALYSIS
The Fourth Amendment of the United States Constitution requires a finding of probable
cause before a search warrant may be issued. State v. Crisp, 74 S.W.3d 474, 483-84 (Tex.App. --
Waco 2002, no pet.). To show probable cause and obtain a search warrant, narcotics officer
Harvel stated in his affidavit that he had received reliable information from a confidential source
that Appellant was trafficking narcotics from the named address. In support of his request for a
“no-knock” warrant, Officer Harvel claimed falsely that he had purchased plastic baggies
containing marijuana from Appellant at the suspected place and, based on his experience, he
believed a delay of entry would allow time for the named party to destroy the marijuana. Harvel
had never purchased drugs from Appellant. Appellant argues that without Officer Harvel’s false
statement, the affidavit lacked probable cause to issue a search warrant for Appellant’s home.
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 cause for the
search warrant. He complains that the judge abused his discretion in denying the motion to
suppress because, without the officer’s false claim, the State lacked probable cause to obtain a
search warrant.
The State counters that Appellant was not harmed by Harvel’s false claim since a trained
drug canine had previously alerted for drugs at the front door of the house. See State v. Weaver,
349 S.W.3d 521, 528 (Tex.Crim.App. 2011)(a positive alert by a certified drug dog is sufficient
probable cause to search). Because the trained drug dog’s positive reaction to drugs in the
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residence provided sufficient 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. We overrule the
sole point and affirm the judgment of the trial court below.
ANN CRAWFORD McCLURE, Chief Justice
December 19, 2014
Before McClure, C.J., Barajas, C.J. (Senior Judge), Chew, C.J. (Senior Judge)
Barajas, C.J. (Senior Judge), sitting by assignment
Chew, C.J. (Senior Judge), sitting by assignment
(Do Not Publish)
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