Lopez v. State

RODNEY SANCHEZ LOPEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-15-00009-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

May 11, 2018

Appeal from the 143rd District Court of Reeves County, Texas

(TC# 13-08-07798-CRR)

OPINION

Lopez was charged with possession with intent to deliver cocaine four grams or more but less than 200 grams).¹ A jury found him guilty and Lopez was sentenced to fifteen years' imprisonment. Lopez appeals his conviction based on the trial court's denial of his (1) motion for continuance of the trial, and (2) motion to suppress.

The Stop

On July 19, 2013, Trooper John David Shock with the Texas Department of Public Safety was on patrol in Reeves County, outside his usual post and on his way home. At around 10:00p.m. that evening, Shock conducted a traffic stop on a black Chevrolet Tahoe that was driving ten miles over the speed limit. Appellant was the driver of the Tahoe and the passenger was Orlando Munoz. The stop was conducted about four miles south of Pecos on U.S. 285.

The dash-cam video² shows that after pulling Appellant over, Shock approached the driver's window and asked Appellant if there was a reason for his speed. Appellant explained that he was coming from Fort Stockton and was in route to meet his sister in Pecos to take his mother to the emergency room in Odessa. After asking Appellant for his license and registration, Shock asked Appellant why his mother needed to go to the emergency room. Appellant explained that his mother had various health issues. Trooper Shock asked Appellant several questions about his license, address, and vehicle. He then walked around the vehicle, asked Appellant if there were any weapons in the vehicle, to which Appellant responds in the negative, and finally informed Appellant that he would be receiving a citation in addition to a warning for an issue with his license.

Shock returned to his patrol vehicle and five minutes after the initial detention, called Trooper Oscar Valles for canine assistance, explaining that a sergeant had warned him about Appellant's alleged reputation for selling methamphetamine. He informed Valles his information on Appellant was that if Appellant was carrying any contraband, he would have it on the weekends (the stop occurred on a Friday). Nevertheless, Shock explained, "the only thing I've got on him right now is just the fact that he's going to a location he's nowhere near and the fact that [the sergeant] recently gave me information that he is a known methamphetamine dealer here in Pecos."Shock went on to say that "neither one are nervous; neither one are doing anything, acting any strangely."

Shock concluded his conversation with Valles explaining he would ask Appellant to get out of the vehicle and for consent to search the vehicle, which he believed Appellant would deny, but nevertheless hold Appellant until Valles arrived with the canine. Seven minutes later, and still in his patrol vehicle, Shock called the sergeant who had given him the information on Appellant and informed him he had detained Appellant. Shock went on to say that he believed he could detain Appellant until a canine arrived based on Appellant's odd story and the information.

Three minutes later, and about twenty minutes after the initial detention, Shock reproached the driver's side of the vehicle and asked Appellant to step out, directing him towards the back of the vehicle and in front of the patrol car. There, Shock asked Appellant for his passenger's name and how he knew him, to which Appellant responded that he did not know his "personal name" and he had come to know him through family and friends in Pecos. Shock directed Appellant to stay in front of the squad car while he approached and spoke to the passenger.

Shock then approached the passenger, requested his identification, and inquired into his association to Appellant, but did not ask the passenger if he knew Appellant's name. The passenger, Orlando Munoz, explained he met Appellant on an occasion where he misidentified Appellant for Appellant's younger brother. Munoz also explained he lived in Pecos but had joined Appellant in his travels around Fort Stockton to "hang out." Munoz also responded in the negative when asked if he possessed weapons.

Shock then re-reproached Appellant to ask why they had been in Fort Stockton and Appellant responded that they had planned to "go out to the bar." After asking a few other questions, Shock returned to his vehicle. After three minutes in the squad car, and twenty-sixminutes after the initial detention, Shock returned Munoz's license, and asked Munoz if the vehicle contained contraband, to which Munoz responded in the negative. After some further conversation with Munoz, Shock re-approached Appellant.

Shock then issued Appellant the traffic citation and a change of address warning, with specific details as to the follow-up procedures. After handing Appellant the citation, warning, and his driver's license, Shock asked if he could continue to ask more questions—now thirty minutes after the initial detention.

Shock asked if the vehicle contained contraband, to which Appellant responded in the negative; he asked for consent to search the vehicle, which Appellant refused to give; and he asked if Appellant had any drug-related offenses, which Appellant said he did not, but then clarified that many years ago, he had been involved in a situation where drugs were tangentially implicated in a charged offense. Shock asked about "the marijuana arrest in Midland" and Appellant explained that he had been arrested for that drug related offense, however, that incident had occurred long before the first situation he had previously explained.

Finally, Shock asked Appellant for consent to search the vehicle for a third time, which Appellant refused to give. He then told Appellant that he had probable cause to search the vehicle for drugs and a canine was on its way to assist in the search. Shock explained that the vehicle, Appellant, and Munoz were going to be held until the canine's arrival. Shock said that once the canine arrived, it would conduct a drug sniff; thereafter, if there was no alert, he and Munoz would be free, as he had already issued the citation. Shock went back to his squad car to contact Valles, and then returned to inform Appellant that the canine was about ten to fifteen minutes away.

Now thirty-six minutes into the detention, Shock asked Appellant for consent to search his person, which Appellant refused to give. He then re-approached the passenger side of the vehicleand asked Munoz if he could exit the vehicle. After asking about Munoz's wallet, he asked Munoz to stay calm, explained Appellant had not given consent to search the vehicle, and asked Munoz for consent to search his person, which Munoz gave. In conducting the consensual search, and after some confusion and reluctance, Shock asked specifically for what Munoz had retrieved in his pocket. Munoz muttered a response and refused to turn over what was in his hand, Shock then asked Munoz to get on the ground, at which point Munoz ran from Shock. Shock turned towards Appellant and commanded him to get on the ground and place his hands behind his back. Munoz had not run far, and so Shock yelled at Munoz to do the same. Now thirty-nine minutes after the initial detention, Shock placed Appellant, still face-down on the ground, in handcuffs and then approached Munoz and placed him in handcuffs. Shock inquired into what Munoz had tried to conceal. Shock returned to the squad car to radio in what had occurred. Shock thereafter called the informing-sergeant to update the sergeant on what occurred, explaining that Munoz ran "straight into the fence[.]" Valles finally arrived and both troopers then began searching for "spice," which was the substance Munoz explained he concealed.

After finding what they believed to be the substance Munoz concealed, Shock asked Valles if they should run a probable cause search—presumably by sweeping the canine around the car to see if there was an alert—or if probable cause to search the vehicle had already been established. Valles declined to opine and stated that he would defer to Shock's judgment. Shock stated that he believed probable cause was established, and thus, a canine search was not necessary.

Shock searched Appellant's person as Valles stood by and then told Munoz he was under arrest. About an hour into the stop, both Munoz and Appellant were still in handcuffs. The troopers placed Munoz in Shock's squad car and left Appellant in front of the squad car as they began searching the vehicle. The dash-cam video recording included the officers finding a double-edged throwing knife, a handgun with two magazines, a large amount of currency, a set of digital scales, a broken glass pipe, and a bottle of prescription pills not prescribed to either Appellant or Munoz. The video did not show when or how the troopers uncovered a black bag containing heroin, cocaine, and methamphetamine (the "exterior contraband") from the back cavity of the back-right taillight.

Procedural Background

On September 18, 2013, Appellant filed a motion to suppress all the physical evidence seized as a result of the stop, including the exterior contraband. On November 15, 2013, the trial court held a hearing on the motion.

At the suppression hearing, Trooper Shock testified he conducted a warrantless search of Appellant's vehicle based on the following:

(1) Trooper Shock had been told by Sergeant Orr that multiple sources had identified Appellant as the "largest methamphetamine dealer in the area;"

(2) Appellant's explanation regarding the location he was travelling to and from did not make sense geographically and was improbable to Trooper Shock;

(3) Trooper Shock found Appellant's explanation of why his mother needed to go the emergency room was not exact or specific, other than "she has a lot of problems" and "[s]he goes to the ER a lot" suspicious;

(4) Appellant

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