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, 

 (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,

 (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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