Opinion
NO. PD-0213-16
10-04-2017
OSVALDO MIGUEL PEREZ, Appellant v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS EL PASO COUNTY
Per curiam. OPINION
Appellant was convicted of possession of cocaine with intent to deliver, unlawful possession of a firearm, and unlawful possession of body armor by a felon. He appealed the trial court's denial of his motion to suppress.
The search warrant issued for appellant's residence was based upon an affidavit that contained a false statement. In his motion to suppress, appellant argued that without the false statement, there was insufficient probable cause to support the warrant. The State admitted to the false statement, but argued that even without it, there was sufficient probable cause based upon the other information described in the affidavit: a confidential informant's tip and a dog sniff and alert which took place on the front porch. The trial court denied the suppression motion.
The court of appeals upheld the trial court's ruling, reasoning that the dog-sniff allegations within the affidavit provided sufficient probable cause to issue the warrant without the officer's false statement. Perez v. State, No. 08-13-00024-CR, slip op. at 2-3 (Tex. App.-El Paso Dec. 19, 2014)(not designated for publication). Appellant filed a motion for rehearing, arguing for the first time that the dog sniff was illegal and therefore could not be used to help establish probable cause, citing McClintock v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014)(remanding to court of appeals to decide whether good faith reliance on case law existing prior to Florida v. Jardines, 133 S. Ct. 1409 (2013), would bar application of exclusionary rule). The court of appeals denied the motion.
Appellant filed a petition for discretionary review of this decision pointing to Jardines, in which the Supreme Court held that the government's warrantless use of drug-sniffing dogs on the front porch of a home constituted an illegal search in violation of the Fourth Amendment. Appellant argued that the court of appeals erred in failing to at least address Jardines. We agreed and summarily granted and remanded to the court of appeals to consider the application of Jardines. Perez v. State, PD-0231-15 slip op. (Tex. Crim. App. July 1, 2015)(not designated for publication).
On remand, the court of appeals held that the Supreme Court's holding in Jardines invalidated an essential part of the search warrant affidavit, and that without its inclusion, there was insufficient probable cause to support the warrant. Perez v. State, No. 08-13-00024-CR slip op. (Tex. App.-El Paso January 27, 2016)(not designated for publication). The court addressed and rejected the State's argument that our state statutory good-faith exception, Article 38.23(b), applied. See TEX. CODE CRIM. PROC. Art. 38.23(b). The State filed a petition for discretionary review challenging that holding.
This Court has since held that
the good-faith exception of Article 38.23(b) will apply when "the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant [was] 'close enough to the line of validity' that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct[.]"McClintock v. State, PD-1641-15 slip op. at 18 (Tex. Crim. App. March 22, 2017) (quoting United States v. Massi, 761 F.3d 512, 528 (5th Cir. 2014)). The court of appeals did not have the benefit of our decision in McClintock when it addressed the State's argument regarding the applicability of Article 38.23(b). The court of appeals should be given an opportunity to address in the first instance whether the facts in this case satisfy the test adopted in McClintock.
We grant the State's petition, vacate the judgment of the court of appeals, and remand the cause to that court for further consideration in light of McClintock. Delivered October 4, 2017
Do Not Publish