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Perez v. State

Court of Appeals of Indiana

March 11, 2015

Ignacio Perez, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 1145

Appeal from the Elkhart Superior Court. The Honorable George W. Biddlecome, Judge. Cause No. 20D03-0909-FA-40.

ATTORNEY FOR APPELLANT: Marielena Duerring South Bend, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana.

Najam, Judge. Mathias, J., and Bradford, J., concur.

OPINION

Page 1146

Najam, Judge.

Statement of the Case

[¶ 1] Ignacio Perez appeals his convictions, following a bench trial, for dealing in cocaine, as a Class A felony, and resisting law enforcement, as a Class A misdemeanor. Perez presents two issues for our review, both of which we addressed in detail in a prior interlocutory appeal brought by Perez. See Perez v. State, 981 N.E.2d 1242 (Ind.Ct.App. 2013), trans. denied. Thus, were it not for an opinion issued by the United States Supreme Court subsequent to that appeal, see Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2012), we would apply the law of the case doctrine and

Page 1147

affirm in all respects. However, Jardines requires us to revisit Perez's second claim of error, which we restate as two issues:

1. Whether a police canine sniff conducted at the front door of Perez's home was an unconstitutional search under the Fourth Amendment to the United States Constitution.
2. Whether the trial court abused its discretion when it admitted certain evidence discovered pursuant to a search warrant for the interior of Perez's home when the search warrant was based on a probable cause affidavit that, among other things, contained information discovered during the canine sniff.

[¶ 2] We first hold that the law of the case doctrine precludes our review of Perez's first claim of error, namely, that the police unconstitutionally seized his person. However, in light of Jardines, we also hold that the canine sniff of Perez's front door violated the Fourth Amendment. Nevertheless, the probable cause affidavit contained sufficient facts, independent of those discovered by the unconstitutional canine sniff, to provide probable cause for the warrant to search Perez's home. Thus, we hold that the trial court did not abuse its discretion when it admitted evidence discovered during the execution of the warrant, and we affirm Perez's convictions.

Facts and Procedural History

[¶ 3] We recited some of the relevant facts in Perez's prior appeal:

On August 18, 2009, an undercover officer with the Elkhart Police Department's Interdiction and Covert Enforcement (ICE) unit purchased 453 grams of marijuana and 29 grams of cocaine from an individual named Concepcion Avalos-Cortez. The officer and Cortez completed this transaction at a carwash in Elkhart. After the officer purchased the marijuana, Cortez stated that another individual would deliver the cocaine to the carwash.
At some point, an older-model blue Dodge Caravan arrived, and Cortez entered the van. He emerged and handed the officer 29 grams of cocaine. It was subsequently discovered that the van was registered to Jaime Galvez in South Bend. However, after several trips to Galvez's residence and hours of surveillance, the officers were not able to determine that the vehicle was registered to that particular resident.
Two days later, the undercover officer arranged to purchase more cocaine from Cortez. When the officer first arrived at the car wash where the original transaction had occurred, Cortez informed the officer that his cocaine supplier was running late but would deliver the drugs shortly.
Thereafter, when the police officer observed a maroon Ford F-150 truck parked behind Cortez, it was determined that this truck was also registered to Jaime Galvez at the same address. The officer again purchased 29 grams of cocaine from Cortez. The officer had reason to believe Cortez received the drugs from the person in the truck. During hours of surveillance at the registered address, police never saw the truck arrive at or leave the residence.
On August 31, the undercover officer again arranged to purchase 15 grams of cocaine from Cortez. The same maroon truck was at the car wash during this transaction, and the officer again believed that the cocaine had been provided by the person in the truck. Officers from ICE followed the truck directly from the car wash to Perez's residence.
The following day, the police began surveillance of Perez's residence. The blue Dodge minivan that was used in the controlled buy on August 18 was seen at

Page 1148

Perez's residence, and a records search revealed that Perez owned the residence. The police obtained a photograph of Perez from the Bureau of Motor Vehicles (BMV) and discovered that Perez had a handgun permit. The officers believed that the individual delivering cocaine to Concepcion at the car wash might be obtaining the cocaine from Perez's house.
The next day, the undercover officer again purchased 15 grams of cocaine from Cortez at the car wash. The officer then asked Cortez if he could obtain an additional one-and-one-half ounces of cocaine. Cortez told the officer that he could obtain the cocaine within an hour. Cortez remained at the car wash. At some point, a white Ford truck registered to Perez arrived, and the driver met with Cortez for about five minutes. After Perez's truck left, Cortez contacted the undercover officer and informed him that he had the cocaine and arranged to ...

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