Perez, Osvaldo Miguel

Opinion

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

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