State v. Astorga

642 S.W.3d 69

STATE of Texas, Appellant,

v.Ramon P. ASTORGA, Jr., Appellee.

No. 08-20-00180-CR

Court of Appeals of Texas, El Paso.

October 27, 2021

Discretionary Review Refused February 9, 2022

ATTORNEY FOR APPELLANT: Brock Benjamin, 1600 N. Kansas, El Paso, TX 79902.

ATTORNEY FOR THE STATE: Yvonne Rosales, District Attorney, 500 E. San Antonio, Ste. 201, El Paso, TX 79901.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, Justice When a tribal police officer has probable cause to believe that a non-Indian motorist has violated state or federal law on tribal lands, the tribal police can detain the motorist for a reasonable period of time until state or federal law enforcement arrives. U.S. v. Cooley , ––– U.S. ––––, 141 S.Ct. 1638, 1646, 210 L.Ed.2d 1 (2021). In this case, following a traffic stop, tribal police discovered drug paraphernalia in Appellee Ramon Astorga's car, and they handcuffed, Mirandized, and transported him to tribal police headquarters. Following a strip search, tribal police discovered a quantity of methamphetamine on his person. Only at that point, did the tribal police contact the El Paso Police Department ("EPPD"). The trial court concluded that the tribal police illegally arrested Astorga which tainted the subsequent discovery of the narcotics. We conclude that the State has failed to present a record showing the tribal police acted within the limited authority that Cooley allows respecting the detention of non-Indians. Accordingly, we affirm the suppression order below.

I. FACTUAL AND PROCEDURAL BACKGROUND

Astorga was indicted in state district court on one count of possession of methamphetamine, a controlled substance, with the intent to deliver. The methamphetamine was found on Astorga's person during a search by officers of the Ysleta del Sur Pueblo Tribal Police Department after they stopped him for committing an alleged traffic violation on the Ysleta del Sur Pueblo (the "Pueblo") located within El Paso County.

A. The Traffic Stop¹

Around 12:30 p.m. on January 30, 2019, Ysleta Tribal Officer Julian Alarcon saw Astorga, a non-Indian, driving off the parking lot of the Speaking Rock Entertainment Center located on the Ysleta Pueblo. Astorga allegedly failed to use his turn signal as he turned from the parking lot onto a roadway within the Pueblo. The failure to use a turn signal in this situation is a civil infraction under the Tribe's Traffic Code. Officer Alarcon initiated a traffic stop, but Astorga did not stop until he had travelled onto a public roadway off the Pueblo, located in the City of El Paso. There is no dispute here that Officer Alarcon had the authority to enforce the Tribe's Traffic Code on property adjacent to the reservation if the violation initially occurred on tribal land.

A second tribal officer, identified as Officer Villar, arrived on the scene to assist with the stop. Officer Alarcon approached the driver's side of the vehicle, while Officer Villar approached the passenger side. Astorga had a female passenger with him. While speaking with Astorga's female passenger, Officer Villar observed two open alcoholic beverage containers in the vehicle, which constituted a civil infraction under the Tribe's Traffic Code. Based on the presence of the open containers, Officer Alarcon ordered Astorga to step out of his vehicle to conduct a further investigation. Officer Alarcon testified that upon seeing the open containers, he believed it necessary to determine whether Astorga had been driving under the influence, which is also a civil violation of the Tribe's Traffic Code. However, there is nothing in the record to indicate that Astorga was in fact driving under the influence.

Officer Alarcon's dash cam video shows he conducted a brief pat-down search of Astorga. At about this time, a third tribal officer, identified as Sergeant Perez, arrived on the scene and remained next to Astorga while Officer Alarcon retrieved the open containers from the vehicle. Shortly thereafter, Officer Villar informed Officer Alarcon that he had found a clear glass pipe on the floorboard of the passenger seat of the vehicle. Based on his training and experience, Officer Alarcon believed that the pipe contained residue indicating that it had been used to smoke methamphetamine; he therefore suspected that Astorga had committed an additional civil infraction in violation of the Tribe's Peace Code, which governs non-traffic offenses occurring on tribal land. Officer Alarcon testified that the focus of his investigation shifted at that time from enforcing the Traffic Code to enforcing the Peace Code with respect to Astorga's suspected possession of drug paraphernalia.

Sergeant Perez thereafter handcuffed Astorga, and conducted a more thorough search of Astorga's person, which Officer Alarcon described as a "search incident to arrest." No drugs were found on Astorga during this search. A records check showed the female passenger had an outstanding arrest warrant for aggravated assault with a deadly weapon.² Officer Alarcon further testified that he read both Astorga and the female passenger their Miranda rights, and they were both transported for "processing" to the tribal police headquarters, located approximately a half mile away from the traffic stop's location. The timestamps on the dashcam video shows the traffic stop--from when Officer Alarcon exits his vehicle until he arrives with Astorga back at tribal police headquarters--took 39 minutes.³

B. Events at Tribal Police Headquarters

At the tribal police headquarters, pursuant to their standard policy, tribal officers conducted yet another search of Astorga for safety reasons, before placing him in a jail cell. No drugs were found on Astorga's person during that search.

However, while Astorga was in the jail cell, his female passenger informed one of the tribal officers that Astorga was concealing methamphetamine in his "groin" or "genital area." The tribal officers then asked Astorga to remove his pants, and the officers observed a "bulge" in his underwear, which Astorga attributed to a "hernia." Not believing his story, the tribal officers asked Astorga to take off his underwear, and at that time, the officers observed a baggie containing a "crystal-like" substance; upon testing, the tribal officers determined that the substance was methamphetamine. Officer Alarcon testified that it was "at this point," that the matter was "turned over to the El Paso Police Department." An incident report from the El Paso Police Department documents that they were called at 5:10 p.m.⁴ A chain of custody document shows that an EPPD officer took possession of the suspected methamphetamine at 5:44 p.m. According to the EPPD's incident report, Office Villar informed EPPD officers upon arrival that he had placed Astorga under arrest for possession of drug paraphernalia. The EPPD placed him under arrest for possession of a controlled substance at 8:18 p.m.

Officer Alarcon's final incident report reflected that he did not issue a citation to Astorga for the drug paraphernalia offense. Instead, the report indicates that he issued two civil citations to Astorga under the Tribe's Traffic Code for the turn-signal and open container violations and also cited Astorga for possession of illegal drugs under the Peace Code. He cited the female passenger for possession of paraphernalia in violation of the Tribe's Peace Code.

C. State Court Proceedings and the Motion to Suppress

Astorga was subsequently indicted in state court on one count of the first-degree felony offense of possession of a controlled substance, methamphetamine, with the intent to deliver, in an amount more than 4 ounces but less than 200 ounces, in violation of the Texas Health and Safety Code. See TEX.HEALTH & SAFETY CODE ANN. §§ 481.112 ; 481.102(6). Shortly after being indicted, Astorga filed a motion to suppress any evidence resulting from the traffic stop, alleging that the stop was illegal and that he was unlawfully detained for longer than was reasonably necessary to investigate the initial reason for the stop. Officer Alarcon and Astorga testified at the hearing; the trial court also received in evidence the incident and police reports, along with the Tribe's Traffic and Peace Codes.

The trial court granted Astorga's motion to suppress. In its findings of fact, the court first found that the tribal officers’ initial traffic stop was lawful, based on the tribal officer's perception of a violation of the Tribe's Traffic Code (failure to use a turn signal when exiting a parking lot on tribal land). The trial court further recognized that it was a violation of the tribal Codes to have open containers in the vehicle and to possess drug paraphernalia. However, the trial court concluded that the tribal officers had no authority to arrest Astorga for those violations, and at most they could issue civil citations and to thereafter release him. In turn, the trial court noted that Officer Alarcon vacillated in his testimony regarding whether he arrested Astorga or whether he merely detained him; however, the court concluded that despite any testimony to the contrary, Officer Alarcon did in fact unlawfully arrest Astorga.

The trial court therefore concluded that because the tribal officers acted illegally in arresting Astorga, the body search that occurred at the tribal police headquarters was also illegal and violated Astorga's right to be free from an "unlawful search and seizure." Accordingly, the court granted Astorga's motion to suppress the methamphetamine that was found during that search, concluding that it was found as a direct result of the illegal arrest and detention.

II. ISSUES ON APPEAL

On appeal, the State contends that the trial court erred in granting the motion to suppress, raising two issues. In Issue One, the State contends that the trial court erred in ruling that the tribal officers did not have the authority to detain Astorga, contending that the detention was lawful under the...