Perez, Gilberto

Perez and another man were both shot and taken to a hospital emergency room. An officer responded. Her body camera captured Perez on a gurney with his jeans no longer on him and hanging off the side. A nurse in charge of patient property searched Perez’s jeans and discovered a bag of marijuana and a Crown Royal bag. She held up the marijuana bag and jeans for the police officer to see and then put Perez’s property into two brown bags and gave them to the officer. She also gave the officer a bag of property belonging to the other man who had come in with Perez but who died in surgery. A crime scene investigator (CSI) later arrived to collect this evidence. No inventory forms distinguished whose property was whose. The CSI concluded what belonged to Perez based on the presence of a spent bullet in the bag she determined must have been the deceased’s. When she looked inside the Crown Royal bag that she concluded was Perez’s, she found what was later determined to be methamphetamine. In relaying this information in his affidavit for an arrest warrant for Perez, the detective simply asserted that Perez had been found in possession of the Crown Royal bag and methamphetamine. Following his arrest, Perez made a statement to police.

Perez was ultimately indicted for murder, aggravated assault, and drug offenses. He filed a motion to suppress on multiple fronts. After a hearing, the trial court partially granted his motion.

It agreed with Perez’s claim that the nurse’s search of his belongings and their seizure by police constituted a warrantless search and seizure, crediting the nurse’s testimony that she was acting on behalf of the hospital and police when she searched the men’s clothing. It found that the search was not done pursuant to a hospital inventory search but “at the behest of law enforcement.”

It agreed with Perez’s claim that the arrest warrant (leading to his police statement) lacked probable cause because, due to the testimony concerning authentication and chain of custody, the statements in the affidavit that the Crown Royal bag and methamphetamine were in Perez’s possession were conclusory and contradicted by the detective’s admission at the hearing that he had no way to confirm that the narcotics were in Perez’s possession.

The State appealed, and the court of appeals reversed. It did not address the State’s arguments that the nurse’s actions were private and that the search was a proper hospital inventory. Instead, the court of appeals distinguished a case the trial court relied on, United States v. Neely, 345 F.3d 366 (5th Cir. 2003), which held that the plain-view doctrine did not apply where the hospital’s search was conducted out of sight of officers. The trial court’s finding that the search had been conducted in police presence sufficiently distinguished the case. The court of appeals further concluded that all the plain-view factors had been met. In assessing the immediately apparent incriminatory character of the evidence, it relied on the body-cam footage showing the jeans were visible on the officer’s first arrival and the circumstances suggesting the jeans would have been bloody. It concluded that since their seizure was justified under plain view, the jean’s search had an independent source—the police inventory of Perez’s belongings, which was the basis for the arrest warrant. As to the arrest warrant issue, it held that the trial court improperly relied on the detective’s testimony (instead of the four corners of the affidavit) in assessing whether probable cause supported the warrant.

Perez argues that the court of appeals should not have addressed plain view since the State never raised it in the trial court. He contends the court of appeals should not have likened plain view to standing and argues this creates a conflict with other courts of appeals. He argues the court of appeals improperly engaged in its own fact finding based on the video footage. Perez contends that the officer did not take notice of the jeans or recognize their criminality until the nurse found the marijuana—defeating the appellate court’s plain view and independent source theories. He also argues that the State never raised the police department’s inventory to justify police conduct at any stage of the litigation. He argues that the court of appeals’s independent source theory is really inevitable discovery, which is unavailable in Texas. As to the warrant affidavit issue, Perez contends it was proper to look beyond the affidavit’s four corners because the defense argued the affidavit contained a material misrepresentation. Perez also argues that the trial court could have held the affidavit insufficient to establish probable cause either because the detective’s statements were too conclusory or because there was no basis for probable cause after the trial court had excised (based on its proper ruling on the first issue) all the information from the nurse’s illegal search.