Perez v. State
| Decision Date | 27 January 2016 |
| Docket Number | No. 08-13-00024-CR,08-13-00024-CR |
| Parties | OSVALDO MIGUEL PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 1 of El Paso County, Texas
(TC # 20120D01211)
The United States Supreme Court in Florida v. Jardines, ___U.S.___,133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) held that a narcotic-dog sniff conducted on the front porch of a private residence constituted a search for Fourth Amendment purposes. This appeal returns to us from the Texas Court of Criminal Appeals for our consideration of whether Florida v. Jardines affects the outcome of this case. Bound up in that inquiry are issues of error preservation, whether Jardines negates a portion of a search warrant affidavit, and if so, whether the residual portions of the affidavit support the issuance of the search warrant, as well as whether a good faith exception to the exclusionary rule might apply.
We conclude that the trial court was aware of and considered the Jardines issue; therefore the issue was not forfeited. The holding in Jardines negates an essential part of the search warrant affidavit in this case, and without the canine search, there is no probable cause to uphold the warrant. Finally, for the reasons noted below, we decline to engraft the particular good faith exception urged by the State onto TEX.CODE CRIM.PROC.ANN. art. 38.23 (West 2005). Accordingly, we reverse the trial court's denial of the motion to suppress and the conviction below, and remand the case.
FACTUAL SUMMARY
Appellant was charged with possession of cocaine, unlawful possession of a firearm by a felon, and unlawful possession of body armor by a felon. The charges arose from the seizure of those items following a search of Appellant's home.1 The search was conducted pursuant to a magistrate issued search warrant, which in turn was based on a police officer's affidavit. The parties all agreed below that the police officer made a false statement in the affidavit. After excising the false statement, the substance of the affidavit includes only a bare reference to a confidential informant, and the alert by a trained narcotics dog at Appellant's front door. Appellant was unsuccessful in challenging the warrant in a pretrial suppression hearing, and thereafter pled guilty, while reserving his right to appeal the ruling from the suppression hearing.
While the appeal was pending, the United States Supreme Court decided Florida v. Jardines, which holds that the use of a drug sniffing dog at the front door--in the so called curtilage of a house—constitutes a search under the Fourth Amendment. 133 S.Ct. at 1418. Appellant's brief on the merits neither cited the case, nor discussed the constitutionality of the drug dog search. The State's brief cited Jardines, but contended it did not apply because the issue was forfeited. We then issued our opinion which affirmed the trial court's denial of the motion to suppress because even without the officer's false statement, the dog's alert was sufficient to support probable cause for the warrant. Perez v. State, 08-13-00024-CR, 2014 WL7237732, at *1 (Tex.App.--El Paso Dec. 19, 2014)(not designated for publication). In a motion for rehearing, Appellant raised Jardines related issues for the first time. The motion itself did not discuss Jardines, but cited a case which did. We overruled the motion for rehearing without written opinion. On petition for review to the Texas Court of Criminals Appeals, that court in an unpublished opinion vacated our judgment and returned the case for consideration of the impact, if any, of Jardines. Perez v. State, PD-0231-15, 2015 WL 4040810, at *1 (Tex.Crim.App. July 1, 2015)(not designated for publication).
The State has since filed a supplemental brief which suggests that we have three issues to decide. First, did Appellant properly preserve any error on Jardines grounds? Second, does the judge-made "good faith" mistake of law exception apply here because at the time of the search, Jardines had not been decided and the officers had an objectively reasonable belief that the dog sniff was proper. Third, the State asks us to consider whether the officer's search of the house, supported by the good faith reliance on a search warrant, is itself sufficient even if the warrant is later invalidated. Appellant has not favored us with any additional briefing. We accept the State's outline of the issues, but first detour to discuss whether Jardines applies here, and the importance of the canine search to the search warrant affidavit.
DOES JARDINES APPLY?
Our earlier opinion held that even after excluding the police officer's false statement from the search warrant affidavit, the warrant was still justified based on the canine's alert to the smell of narcotics. Based on Jardines, however, we can no longer rely on that portion of the affidavit.
As in this case, the police in Jardines went to the front door of a single family residence accompanied by a trained drug sniffing dog. 133 S.Ct. at 1413. The dog began to alert as theyapproached the front porch, and the dog sat, which was its signal for the location of the strongest odor, just at the front door. Id. Based on the alert, the officers obtained a search warrant that led to the discovery of drug contraband inside the house. Id. The controlling issue in Jardines was whether the implied invitation to walk to the front door of a single family residence includes an implied invitation to bring along a drug sniffing dog. Id. at 1416. Based on the "traditional property-based understanding of the Fourth Amendment" the court concluded the implied invitation to come to the front door was not that broad. Id. at 1417. As Justice Scalia explained for the majority:
This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. . . . But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to--well, call the police.
The front porch is part of the home's curtilage, which is the area "immediately surrounding and associated with the home" and which is considered a "part of the home itself for Fourth Amendment purposes." Id. at 1414, quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The boundaries of the curtilage are "easily understood from our daily experience." Id., quoting Oliver, 466 U.S. at 182 n.12, 104 S.Ct. 1735. The "front porch is the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.'" Id. The location of the search made the case straightforward for the court. The officers were "gathering information in an area belonging to Jardines" and in an area enjoying the same protection the home itself. Id. at 1414. Because the officers engaged in awarrantless search in that area, the court affirmed a lower court suppressing evidence gained from the subsequent search of the house.
The warrant here similarly describes a single family residence. Nothing about the description of the house is out of the ordinary. The residence has a car port, a driveway, a designated street address, and a front door. On October 4, 2011, five police officers walked up to the front door in an attempt to make contact with Appellant. One officer was accompanied by a narcotics dog named "Kim" who "was deployed outside the front door." The dog alerted to the odor of narcotics from inside the house. The officers then continued to knock on the front door, but no one answered.
We see no meaningful distinction between the fact of Jardines and those here, nor does the State's briefing suggest Jardines could be distinguished in any way. Moreover, excluding the canine search is fatal to the search warrant affidavit.
A search warrant cannot be issued unless it is based on probable cause as determined from the four corners of a sworn affidavit. U.S. Const. amend. IV; Tex.Const. art. I, § 9; TEX.CODE CRIM.PROC.ANN. art. 18.01(b)(West 2015)("No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance."). We ordinarily give "great deference" to a magistrate's determination of probable cause in issuing a warrant. State v. Cuong Phu Le, 463 S.W.3d 872, 876-78 (Tex.Crim.App. 2015), citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) and Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). That deference evaporates, however, when parts of the affidavit must be stricken of tainted information. McClintock v. State, 444 S.W.3d 15, 19 (Tex.Crim.App. 2014). "When part of a warrant affidavit must be excluded from the calculus, then it is up to thereviewing courts to determine whether 'the independently acquired and lawful information stated in the affidavit nevertheless clearly established probable cause.'" McClintock, 444 S.W.3d at 19, quoting Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App. 1991). A search warrant which is based in part on tainted information might still be valid "if it clearly could have been issued on the basis of the untainted information in the affidavit." Cuong Phu Le, 463 S.W.3d at 876-78.
In reviewing the remaining untainted portions of the affidavit, we do so in a "commonsensical and realistic...
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