Petition for Writ of Certiorari — Eloy Heraclio Alcala, Petitioner v. Texas

Supreme Court briefOct 3, 2024

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No. ________________________

SUPREME COURT OF THE UNITED STATES

ELOY HERACLIO ALCALA,

Petitioner,

THE STATE OF TEXAS,

Respondent,

_______________________________________________________________

On Petition for a Writ of Certiorari to the

Thirteenth Court of Appeals of Texas

PETITION FOR A WRIT OF CERTIORARI

Rolando Garza

310 West University

Edinburg, Texas 78539

(956) 318-1102 Telephone

(956) 381-5005 Facsimile

Email: crimapp@yahoo.com

State Bar No. 24004665

Federal I.D. No. 32297

Counsel for Petitioner

I. Question Presented

The question here is whether trespassing onto curtilage to touch the hood of an

automobile to determine if it was recently driven, in light of the dissipation of heat,

constitutes exigent circumstances?

TABLE OF CONTENTS

Page

Question Presented ..........................................................................................1

II.

Table of Contents .............................................................................................2

III.

Table of Authorities .........................................................................................4

IV.

Petition for Writ of Certiorari .........................................................................6

Opinions Below ..............................................................................................6

VI.

Jurisdiction ......................................................................................................7

VII. Constitutional Provisions Involved ................................................................8

VIII. Statement of the Case ......................................................................................8

1. Background ................................................................................................9

2. The approach of Alcala’s home ................................................................10

3. Direct Appeal ............................................................................................12

IX.

Reasons for Granting the Writ .......................................................................17

To determine if the potential dissipation of evidence

on curtilage amounts to exigent circumstances undermining

the warrant requirement........................................................................17

Conclusion .....................................................................................................18

XI.

Items included in Appendix

Appendix A, Opinion, Thirteenth Court of Appeals, August 28, 2023 ..........A-1-16

Appendix B, Decision of Texas Court of Criminal Appeals Refusing Review...B-17

Appendix C, Opinion, Thirteenth Court of Appeals, July 24, 2014 ..............C-18-32

Appendix D, Opinion, Thirteenth Court of Appeals, November 14, 2013 .....D-33-48

III. Table of Authorities

Cases

Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647

(Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd) ..........6,7,8,9,10,11,14,15,16

Alcala v. State, No. 13-12-00259-CR, 2014 Tex. App. LEXIS 7949

(Tex. App.—Corpus Christi July 24, 2014, pet. ref'd) .........................................6,10

Alcala v. State, 476 S.W.3d 1 (Tex. App.—Corpus Christi 2013, pet. ref'd) ......6,12

Brigham City, 547 U.S. 398, 406 (2006) .................................................................16

Collins v. Virginia, 584 U.S. 586 (2018) ................................................................13

Florida v. Jardines, 569 U.S. 1 (2013) ....................................................................13

Horton v. California, 496 U.S. 128 (1990) .........................................................12,16

Igboji v. State, 666 S.W.3d 607 (Tex.Crim.App. 2023) ..........................................13

Kentucky v. King, 563 U.S. 452 (2011) ........................................................12,13,16

Lange v. California, 594 U.S. 295 (2021) ..............................................................14

Martin v. State, 620 S.W.3d 749 (Tex.Crim.App. 2021) ........................................13

Missouri v. McNeely, 569 U.S. 141 (2013) ................................................8,16,17,18

Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006) ........................................13

Ratliff v. State, 663 S.W.3d 106 (Tex.Crim.App. 2022) .........................................14

Silverman v. United States, 365 U.S. 505 (1961) ....................................................13

Turrubiate v. State, 399 S.W.3d 147 (Tex.Crim.App. 2013) ..............................13,14

United States v. Dunn, 480 U.S. 294 (1987) ..........................................................13

Constitutional Provisions

and Statutes Cited

United States Constitution

U.S. Const. Amed. IV .......................................................................8,12,13,16,17,18

United States Statutes

28 U.S.C. § 1257(a) ...................................................................................................7

United States Supreme Court Rule 13 ......................................................................7

State Statutes

Tex. Penal Code § 30.05 ...........................................................................................11

IV. Petition for Writ of Certiorari

Eloy Heraclio Alcala, an inmate currently incarcerated at the McConnell Unit

in Beeville, Texas by and through appointed counsel Rolando Garza, respectfully

petitions this court for a writ of certiorari to review the judgment of the Thirteenth

Court of Appeals of Texas.

V. Opinions Below

The Thirteenth Court of Appeals of Texas issued an unpublished opinion

addressing and denying Alcala’s direct appeal regarding adverse rulings to the

suppression of evidence reported as Alcala v. State, No. 13-18-00614-CR, 2023 Tex.

App. LEXIS 6647 (Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd). (App. A)

In a prior unpublished opinion this same appellate court remanded Alcala’s

first conviction for a new trial based on Alcala’s statement being obtained despite an

unambiguous affirmative invocation of right to counsel in violation of the Fifth

Amendment. Alcala v. State, No. 13-12-00259-CR, 2014 Tex. App. LEXIS 7949, at

*47 (Tex. App.—Corpus Christi July 24, 2014, pet. ref'd) (App. C)

Alcala’s son was also convicted of this same capital murder and he appealed

his conviction to this same court of appeals and a published opinion followed. Alcala

v. State, 476 S.W.3d 1 (Tex. App.—Corpus Christi 2013, pet. ref'd) (App. D)

VI. Jurisdiction

Review is sought of the decision of the Thirteenth Court of Appeals of Texas

addressing and denying Alcala’s direct appeal regarding adverse rulings to the

suppression of evidence at the trial court level through motions to suppress and is

reported as Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647 (Tex.

App.—Corpus Christi Aug. 28, 2023, pet. ref'd). (A-9-14)

After obtaining extensions of time to file a motion for rehearing up to an

including December 15, 2023, same was filed on said date. The motion for rehearing

was denied on January 9, 2024 by the Thirteenth Court of Appeals.

After obtaining extensions of time to file a petition for discretionary review in

the Texas Court of Criminal Appeals up to and including May 10, 2024 same was

transmitted on said date under case number PD-0119-24. The Texas Court of

Criminal Appeals refused Alcala’s petition for discretionary review on June 5, 2024.

(B-17) Thus, the petition for writ of certiorari was due ninety days from June 5, 2024

being September 3, 2024. United States Supreme Court Rule 13. A motion for

extension of time to file same was granted by this Court on August 22, 2024 up to and

including October 3, 2024 under Application number (24A193).

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a), having

timely filed this petition within the allotted time granted by this Court.

VII. Constitutional Provisions Involved

United States Constitution, Amendment IV.

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

United States Constitution, Amendment IV.

VIII. Statement of the Case

The Thirteenth Court of Appeals of Texas addressed an denied Alcala’s direct

appeal regarding efforts to suppress evidence at the trial court level through motions

to suppress and is reported as Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App.

LEXIS 6647 (Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd). (A-9-14)

When this Court was confronted with the question of whether the natural

metabolization of alcohol in the bloodstream presents a per se exigency that justifies

an exception to the Fourth Amendment’s warrant requirement for nonconsensual

blood testing in all drunk-driving cases, this Court concluded that it does not, and

held, consistent with general Fourth Amendment principles, that exigency in this

context must be determined case by case based on the totality of the circumstances.

Missouri v. McNeely, 569 U.S. 141, 145, 133 S. Ct. 1552, 1556 (2013)

The question here is whether trespassing onto curtilage to touch the hood of an

automobile to determine if it was recently driven, in light of the dissipation of heat,

constitutes exigent circumstances.

1. Background

In sum:

At approximately 1:30 a.m. on October 8, 2010, Pharr Police

Department (PPD) Investigator Enrique Ontiveros contacted dispatch to

report hearing "three loud noises that appeared to be gunshots." Within

minutes, Investigator Ontiveros was directed to respond to reports of

"shots fired with two men down" in the 900 block of East Santa Monica.

Investigator Ontiveros arrived on scene near the intersection of East

Santa Monica and South Sabino Avenue and observed a brown van with

its lights on and engine running. Two men, later identified as cousins

David Garcia and Victor De La Cruz, were lying motionless on the

ground by the van, blood pooling around their heads. Investigator

Ontiveros was soon joined by PPD Investigator Juan Manuel Quilantan

Jr., Interim Police Chief Jose Alejandro Luengo, Investigator Michael

Perez, Officer Eric Galaviz, Sergeant David Castillo, and Sergeant

Daniel Leal.

Less than two hours later, appellant and his son, Eloy Jiovanni Perez

Alcala (Jiovanni), had been identified as suspects in the double

homicide and arrested. Appellant was later indicted on capital murder

charges and pleaded not guilty.1

Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647, at *1-2

(Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd) (A-2)

As noted, Alcala’s son also appealed his conviction of this same capital murder to the same

court of appeals. Alcala v. State, 476 S.W.3d 1 (Tex. App.—Corpus Christi 2013, pet. ref'd) (App.

2. The approach of Alcala’s home

Investigator Juan Manuel Quilantan:

Investigator Quilantan testified that he helped secure and block off the

crime scene to preserve any potential evidence. Investigator Quilantan

then joined other officers in looking for the suspect vehicle and ruled

out the involvement of two other white Dodge trucks within the

neighborhood before locating a third white Dodge truck at 708 Santa

Monica.

While surveying the property at 708 Santa Monica, a neighbor told

Investigator Quilantan that the driver of the white Dodge truck returned

to the home without its headlights on shortly after the shooting.

Investigator Quilantan then noticed somebody peeking through the

windows from the home and the sound of a door locking followed.

Investigator Quilantan determined that exigent circumstances dictated

that he enter the property to feel the hood of the truck to determine if it

was warm from recently being driven. Investigator Quilantan confirmed

the hood felt hot and noticed two live rounds of ammunition in the cab

of the white Dodge truck.

Also parked at the home was a white Cadillac. Investigator Quilantan

and Sergeant Castillo were standing a few feet behind the white Cadillac

when Sergeant Castillo shined his light into the back window of the

white Cadillac and both officers noted blood inside the vehicle.

Investigator Quilantan, accompanied by additional officers, initiated

contact with the residents of 708 Santa Monica.

Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647, at *8-9

(Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd) (footnotes omitted) (A-4)

Similarly, in a prior opinion,2 the court summarized this encounter as follows:

As noted, this same Court of Appeals previously remanded for a new trial based on Alcala’s

statement being obtained despite an unambiguous affirmative invocation of right to counsel in

violation of the Fifth Amendment. Alcala v. State, No. 13-12-00259-CR, 2014 Tex. App. LEXIS

Officer Quilantan "got other officers to assist [him]" in searching the

neighborhood for the suspect vehicle. They discovered a white pickup

truck parked on the street. At the time, Officer Quilantan was with

Officer Luengo and Officer Galavis. Officer Quilantan testified that he

touched the hood of the vehicle to determine if it had recently been

driven and found that it was "cold, cold as can be." This indicated to

Officer Quilantan that it had not recently been driven; he therefore

believed that it was not the suspect vehicle.

The officers then walked towards Alcala's residence. Officer Quilantan

testified, "That's when we spot the truck." He explained that it was

difficult to see because it was a dark area inside the property and there

was a tree blocking the way. The property was enclosed completely by

a metal fence.3 Officer Quilantan remembers seeing someone looking

through the blinds from a window in Alcala's house. There was also a

Cadillac CTS parked inside the property. The two officers decided to

walk onto the property "just to eliminate any possible person of

interest." Officer Quilantan touched the hood and grille of the white

Dodge Ram, and it was warm. Sergeant Castillo then arrived at Alcala's

house and asked Officer Quilantan if he had "seen the inside of the car."

Officer Quilantan testified, "And that's when we found the—back

portion of the front headrest of the car full of blood." On

cross-examination, Officer Quilantan testified that, using a flashlight, he

looked through the passenger side window of the Dodge Ram and

observed a live round of ammunition.

The officers then decided to speak with the owners of the property. The

officers knocked on the door and spoke with Alcala.

7949, at *47 (Tex. App.—Corpus Christi July 24, 2014, pet. ref'd) (APP. C)

In relevant part, a person commits an offense (Trespass) if the person enters or remains on

or in property of another, including residential land, or an aircraft or other vehicle, without effective

consent and the person had notice that the entry was forbidden. Tex. Penal Code § 30.05(a)(1).

“Notice” means, in relevant part, fencing or other enclosure obviously designed to exclude intruders.

Tex. Penal Code § 30.05(b)(2)(B).

Alcala v. State, No. 13-12-00259-CR, 2014 Tex. App. LEXIS 7949, at *12-13

(Tex. App.—Corpus Christi July 24, 2014, pet. ref'd) (C-21-22)

Finally and most concisely, the encounter was summarized in Alcala’s sons

separate appeal as follows:

At this point, Officer Jesse Garza of the Pharr Police Department arrived

at the scene. Together, he and Officer Quilantan went inside the property

and touched the hood of the truck. It "was warm." Then, using a

flashlight, Officer Quilantan "spotlighted the inside of the cabin of the

truck [and] . . . was able to see . . . a live bullet . . . inside . . . [a] cup

holder." Then, Officer Garza said, "Hey, you know what, somebody is

looking at us." The house "had the lights off, but you could see a

silhouette going like - - you know, looking at us," Officer Quilantan

testified. He "spotlighted it, [but] that person was no longer there."4

Officer Quilantan's attention then shifted to a pearl-colored Cadillac

CTS that was also parked on the property, inside the chain-link fence.

He "lit it up with [his] ... flashlight, [and he] . . . could see a lot of

bloodstains." Sergeant David Castillo of the Pharr Police Department

opened the door to the vehicle, and the officers "looked at the inside

and it was just full of blood."5 "And then that's when several of [the

officers] ... decided to do a knock and talk, which is talk to the owners

of the residence and see what's going on."

Alcala v. State, 476 S.W.3d 1, 10-11 (Tex. App.—Corpus Christi 2013, pet.

ref'd) (D-38)

3. Direct Appeal

The exigent circumstances rule applies when the police do not gain entry by means of an

actual or threatened violation of the Fourth Amendment. See Kentucky v. King, 563 U.S. 452 (2011)

Law enforcement officers may seize evidence in plain view, provided that they have not

violated the Fourth Amendment in arriving at the spot from which the observation of the evidence

is made. See Horton v. California, 496 U.S. 128, 136-140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)

The court of appeals set out the relevant law as follows:

The text of the Fourth Amendment "expressly imposes two

requirements[:] [f]irst, all searches and seizures must be reasonable[;]

[s]econd, a warrant may not be issued unless probable cause is properly

established and the scope of the authorized search is set out with

particularity." Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 179

L. Ed. 2d 865 (2011) (citing U.S. Const. amend. IV); Martin v. State,

620 S.W.3d 749, 759 (Tex. Crim. App. 2021). Such special protections

attach to the home. Martin, 620 S.W.3d at 759. "At the [Fourth]

Amendment's 'very core' stands 'the right of a man to retreat into his own

home and there be free from unreasonable governmental intrusion.'"

Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495

(2013) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct.

679, 5 L. Ed. 2d 734 (1961)). "To give full practical effect to that right,

the Court considers curtilage—the area immediately surrounding and

associated with the home—to be part of the home itself for Fourth

Amendment purposes." Collins v. Virginia, 138 S. Ct. 1663, 1670, 201

L. Ed. 2d 9 (2018) (quoting Jardines, 569 U.S. at 6) (cleaned up). "[T]he

extent of the curtilage is determined by factors that bear upon whether

an individual reasonably may expect that the area in question should be

treated as the home itself." United States v. Dunn, 480 U.S. 294, 300,

107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).

"When a law enforcement officer physically intrudes on the curtilage to

gather evidence, a search within the meaning of the Fourth Amendment

has occurred." Collins, 138 S. Ct. at 1670. A warrantless search of a

curtilage is presumptively unreasonable. Igboji v. State, 666 S.W.3d

607, 613 (Tex.Crim.App. 2023). Where a defendant establishes that a

warrantless search occurred, "the State has the burden of showing that

probable cause existed at the time the search was made and that exigent

circumstances requiring immediate entry made obtaining a warrant

impracticable." Turrubiate v. State, 399 S.W.3d 147, 151 (Tex.Crim.

App. 2013). "If either probable cause or exigent circumstances are not

established, a warrantless entry will not pass muster under the Fourth

Amendment." Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App.

2006).

"Probable cause exists when reasonably trustworthy circumstances

within the knowledge of the police officer on the scene would lead him

to reasonably believe that evidence of a crime will be found."

Turrubiate, 399 S.W.3d at 151. Exigent circumstances justifying a

warrantless entry include "(1) providing aid to persons whom law

enforcement reasonably believes are in need of it; (2) protecting police

officers from persons whom they reasonably believe to be present,

armed, and dangerous; or (3) preventing the destruction of evidence or

contraband." Ratliff v. State, 663 S.W.3d 106, 116 (Tex.Crim.App.

2022) (quoting Turrubiate, 399 S.W.3d at 151); see Lange v. California,

141 S. Ct. 2011, 2017-18, 210 L. Ed. 2d 486 (2021) (reviewing

well-recognized exceptions for warrantless entry onto private property).

Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647, at *27-29

(Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd) (A-9-10)

The court of appeals then, “Assuming, without deciding, that the officers' entry

onto the property past the gated fence line and touch of the truck was an unlawful

entry and search”, concluded probable cause and exigent circumstances existed,

rendering entry and search permissible. Alcala v. State, No. 13-18-00614-CR, 2023

Tex. App. LEXIS 6647, at *34-35 (Tex. App.—Corpus Christi Aug. 28, 2023, pet.

ref'd) (A-11)

The court of appeals posited probable cause due to:

The following information available to officers at the time of their entry

onto appellant’s curtilage6 established probable cuase: a double

homicide had transpired less than one hour before, and multiple

witnesses reported the involvement of a white Dodge truck; a white

Dodge truck was parked at appellant's home at 708 Santa Monica; the

There were multiple entries onto the curtilage.

decedents' family told officers that David had been in a physical

altercation with an individual who resided at the home where the white

Dodge truck was parked; appellant's neighbor reported seeing the white

Dodge truck returning to the home with its headlights off shortly after

the shooting, an unusual activity considering the time of evening; in

response to the officers presence on the street, a resident of 708 Santa

Monica was seen peeking through blinds before locking the door; and

while still outside the fence line, an officer observed what he believed

to be blood inside another vehicle parked in the driveway. These facts

and circumstances were sufficient to warrant a reasonable man in

believing that (1) a crime had been committed; (2) the white Dodge

truck was utilized in the commission of the crime; and (3) an individual

or individuals residing at 708 Santa Monica had committed the crime.

Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647, at *34-35

(Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd) (A-11)

However, at the time of the initial entry, the officers were simply going through

a neighborhood and inspecting/searching white Dodge trucks. They did not know

which one may have been involved and thus, the desire to touch the trucks.

Next, even assuming the existence of probable cause, exigent circumstances

did not exist.

In an effort to support this, the opinion notes:

Investigator Quilantan testified he believed exigent circumstances

warranted entry: "[A] double homicide had just occurred. People were

telling us that that's the suspect vehicle. And I didn't know if anybody

was in there. I didn't know if we were going to have an active shooter.

I didn't know if the suspect was still inside the vehicle at that time."

Additionally, Investigator Quilantan testified regarding his concern

about the potential loss of evidence, namely, the dissipation of heat

leaving the vehicle believed to be involved in the shooting.

This—coupled with the officers' observance that there was blood

splattered inside another vehicle in the driveway and that a resident

inside the home locked the door in response to police

presence—satisfied the exigent circumstance exception. See Missouri

v. McNeely, 569 U.S. 141, 145, 133 S. Ct. 1552, 185 L. Ed. 2d 696

(2013) (observing that consistent with general Fourth Amendment

principles, exigency is a matter which "must be determined case by case

based on the totality of the circumstances")

Alcala v. State, No. 13-18-00614-CR, 2023 Tex. App. LEXIS 6647, at *35-37

(Tex. App.—Corpus Christi Aug. 28, 2023, pet. ref'd) (A-11-12)

However, any warrantless entry based on exigent circumstances must, of

course, be supported by a genuine exigency. See Brigham City v. Stuart, 547 U.S.

398, 406 (2006). Here, the “exigency” was formed in the form of “if’s”. There will

always be “if’s”. Rampant “if’s” does not equate to a genuine exigency. Also, law

enforcement officers may seize evidence in plain view, provided that they have not

violated the Fourth Amendment in arriving at the spot from which the observation of

the evidence is made/the blood splatter. See Horton v. California, 496 U.S. 128,

136-140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

Finally, the exigent

circumstances rule applies when the police do not gain entry by means of an actual

or threatened violation of the Fourth Amendment/the locking of the door. See

Kentucky v. King, 563 U.S. 452 (2011)

The true question centers around Quilantan’s concern about the potential loss

of evidence, namely, the dissipation of heat leaving a vehicle that may have been

involved in the shooting.

IX. Reasons for Granting the Writ

To determine if the potential dissipation of evidence on curtilage

amounts to exigent circumstances undermining the warrant

requirement.

Just as in Missouri v. McNeely, that the natural metabolization of alcohol in the

bloodstream does not present a per se exigency that justifies an exception to Fourth

Amendment’s search warrant requirement for nonconsensual blood testing, it follows

that the possible cooling off of the hood of a truck on curtilage does not justify an

exception to the Fourth Amendment warrant requirement. 569 U.S. 141 (2013)

Other factors must be considered.

In McNeely, this Court noted how,

“technological developments that enable police officers to secure warrants more

quickly, and do so without undermining the neutral magistrate judge’s essential role

as a check on police discretion, are relevant to an assessment of exigency. That is

particularly so in this context, where BAC evidence is lost gradually and relatively

predictably.” Missouri v. McNeely, 569 U.S. 141, 155 (2013)

The same is true in the present case. Noticeably here, after declaring exigent

circumstances, the court of appeals did not conduct any analysis as to the ability to

procure a warrant and simply relied on the perceived exigency. Such an approach

is tantamount to a per se rule that the natural metabolization of alcohol in the

bloodstream presents a per se exigency that justifies an exception to the Fourth

Amendment’s warrant requirement for nonconsensual blood testing, and which this

Court found unconstitutional. Missouri v. McNeely, 569 U.S. 141, 145 (2013)

Extending McKneely to the circumstances at issue will ensure that the

protections of the home/curtilage are not eviscerated.

X. CONCLUSION

For the foregoing reasons, Alcala respectfully requests that this Court issue a

writ of certiorari to review the judgment of the Thirteenth Court of Appeals of Texas.

Respectfully submitted,

/s/Rolando Garza