Rolando E. Lopez-Dena v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00639-CR
Rolando E. LOPEZ-DENA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1369-B
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice (concurring in the judgment only)

Karen Angelini, Justice

Delivered and Filed: August 6, 2003

AFFIRMED

Rolando Lopez-Dena ("Lopez") appeals his conviction of possession of marijuana. Lopez asserts that the trial court erred in denying his motion to suppress because the officers lacked probable cause to arrest him and entered his apartment without a search warrant and without voluntary consent. We affirm the trial court's judgment.

Standard of Review

We review a trial court's suppression ruling under an abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Therefore, we afford almost total deference to the trial court's determination of historical facts supported by the record, especially when those findings are based on credibility and demeanor. Id.

Trial Court's Findings

At the conclusion of the hearing on Lopez's motion to suppress, the trial court entered several verbal findings. First, the trial court found that no credible evidence suggested that Lopez was unable to understand the officers. Second, the trial court found that when the officers initially approached Lopez, he was not under arrest but only temporarily detained. The trial court stated that he did not find the testimony of Lopez or his girlfriend credible when compared with the testimony of the other officers. After Lopez asked the officers, "Is this about the drugs?", the officers had probable cause to arrest Lopez. Finally, the trial court found that Lopez voluntarily consented to the officers' entry into and search of his apartment.

Investigative Detention or Arrest

An officer may conduct a brief investigative detention when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). An arrest, however, must be supported by probable cause. See McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003). "Probable cause exists where police have reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed or is committing an offense." Id. An arrest may be upheld when police officers observe behavior that is not overtly criminal but when coupled with the officers' prior knowledge produces probable cause. Id.

In this case, the trial court found that the officers' initial approach was a temporary detention; however, this finding is not supported by the record. An arrest occurs when a person's movement or liberty is restricted or restrained. Flores v. State, 895 S.W.2d 435, 441 (Tex. App.--San Antonio 1995, no pet.). In Colston v. State, 511 S.W.2d 10, 11-12 (Tex. Crim. App. 1974), the Texas Court of Criminal Appeals held that an arrest occurred when four officers parked behind the van the defendant was about to enter, one of the officers jumped from the car with a shotgun, told the defendant to freeze, and ordered him to place his hands on the van. In Flores v. State, this court held an arrest occurred when the defendant was forced to exit his car at gunpoint, assume a spread-eagle position with his hands on the roof of the car and remain there, and the officer testified that the defendant was not free to leave until she completed her investigation. 895 S.W.2d at 441. The facts in the instant case are similar to Colston and Flores.

In this case, Lopez was at his car when the officers blocked Lopez's car with their three cars, one of which had its lights flashing. The officers rapidly approached Lopez with their guns drawn. Agent Thrash testified that he told Lopez that they wanted to question him "and that he was possibly under arrest." Agent Thrash testified that when the officers approached Lopez with their guns drawn, he was not free to leave. Agent Thrash testified his intent was "eventually" to arrest Lopez. We believe that under these circumstances, the initial detention of Lopez was in fact an arrest.

The next question becomes whether the officers had probable cause to arrest Lopez. We believe probable cause was established.

The Drug Enforcement Administration received an initial tip on October 4, 2001, regarding possible narcotics activity, and investigative measures were undertaken with regard to apartment 128 in the Ventana apartment complex. Through investigation, agents determined that Lopez and Jaime Hernandez lived in the apartment and also discovered some personal identifiers and vehicle descriptions from lease records. Based on on-going DEA investigations from Eagle Pass, Texas, and the interception of Lopez's phone conversations, the agents determined that Lopez and Hernandez were involved in a multi-hundred pound marijuana distribution smuggling organization based out of Piedras Negras, Mexico.

On November 1, 2001, Agent Richard Salter received a tip from a private citizen regarding possible narcotics activity at apartment number 128. The tip provided information regarding "vehicles arriving with Mexico tags, a vehicle backing into Mr. Lopez's garage, and several individuals in and out, and then banging noises." Agent Salter ran a search of the Mexican tags and was told that the vehicle was a Volkswagen van that had crossed the border approximately two and one-half hours earlier. This evidence indicated to Agent Salter that the van had driven straight to San Antonio. Based on that information, Agent Salter suspected that a drug load was being delivered.

Based on the tip, Agent Gregory Thrash and Agent Gilbert Zapata set up surveillance at the apartment at approximately 7:15 p.m. The tip directed the agents' attention to a garage attached to the apartment. The garage light was on. At approximately 7:30 p.m., the garage door opened, and three Hispanic males walked out. One of those males was Lopez. A white Volkswagen van was parked inside the garage. The van was moved from the garage to the parking lot, and a red Ford F-150 was moved into the garage. Shortly thereafter, the white van exited the parking lot.

Agent Thrash and Agent Zapata followed the van and a Geo Metro to a motel. The drivers went into the lobby and checked into a room. The driver of the white van stayed at the motel, and the other driver left in the Geo Metro. The agents stayed at the motel for a short time, but then they refocused their efforts back on the apartment.

When Thrash returned to the apartments, Zapata advised him that a white Toyota Celica had arrived at the apartments, the driver went into apartment number 128, stayed a short time, and then departed with another individual and went to Pizza Hut. The Toyota Celica then returned to the apartments, and the passenger was dropped off.

Several agents followed the Toyota Celica, stopping it after they observed several traffic violations. The driver, Derek Alan DeJohn, admitted that he had a pound of marijuana in his vehicle. DeJohn also admitted that he obtained the marijuana from Jaime Hernandez in apartment number 128. DeJohn agreed to show the agents the apartment to which he was referring.

The agents returned to the apartment at approximately 10:00 or 10:15 p.m. The agents identified themselves as police officers as they approached Lopez and his girlfriend with their weapons drawn. As they approached, Lopez made the statement, "Is this about the drugs?" The statement was made in English.

Based on this evidence, the officers knew Lopez was involved in a multi-hundred pound marijuana distribution smuggling organization. The officers were acting on a tip regarding possible narcotics activity when they set up surveillance and watched as a van that recently arrived from Mexico was taken from the garage at the apartment with Lopez assisting. Shortly after the van departed, DeJohn arrived at the apartment and obtained a pound of marijuana. Considering all of the circumstances and information known to the officers, we believe the officers had probable cause to arrest Lopez when they initially approached him. See McGee, 105 S.W.3d at 614 (citing with approval Lunde v. State, 736 S.W.2d 665 (Tex. Crim. App. 1987), in which the court found probable cause based on a tip and activity consistent with a drug transaction).

Voluntary Consent to Search

For consent to be a valid exception to the warrant requirement, that consent must be voluntary. Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003). The validity of an alleged consent to search is a question of fact to be determined from all the circumstances, and the Texas Constitution requires the State to show by clear and convincing evidence that the consent was valid. Id.

As the agents approached Lopez, he asked, "Is this about the drugs?" After about ten minutes of questioning, the agents asked Lopez if he was amenable to getting out of the parking lot and returning to his apartment, and Lopez agreed. The agents reholstered their weapons before accompanying Lopez to his apartment, and Lopez was never handcuffed. Lopez was cooperative, and Lopez mutually agreed with the officers to get out of the parking lot and go somewhere private.

Because Lopez was primarily Spanish-speaking, the agents waited for the arrival of another agent, Aaron Barasa, who was more fluent in Spanish. Upon his arrival, Barasa read Lopez his Miranda warnings in Spanish and then asked Lopez to read the warnings from the card again. Lopez then gave his verbal consent to search. Barasa and another agent also obtained Lopez's written consent. Lopez was very cooperative, calm, and relaxed. Lopez was not coerced or threatened. During the course of the search, Lopez directed the agents to where the drugs were actually kept in a locked patio closet. The agents asked Lopez for the keys, and he provided the keys to them. Twenty-two to twenty-three pounds of marijuana was discovered in a black bag in the closet.

Reyes stated that Agent Barasa arrived after a black bag was removed from the apartment. Reyes stated that Lopez would understand the Miranda warnings written in Spanish on the card that Agent Barasa said was given to Lopez to read; however, Reyes testified that Lopez could not understand English.

Lopez testified that after the agents turned off his car, they each grabbed one of his hands and took him to his door. At the door, one of the agents gave Lopez the keys to open the door. Lopez testified that he opened the door because the agent motioned for him to open the door and he had a pistol at his back. Lopez testified that the agents searched his apartment, opened the storage unit with the keys, and retrieved a black bag. Lopez stated that one of the agents tried to talk to him in Spanish but he did not understand. Lopez stated the agent threw the card containing the Miranda warnings at him to read and that he asked for an attorney. Lopez stated he did not sign any documents at his apartment. Lopez stated that he signed the documents because they told him he could go after he signed.

The trial court expressly found that no credible evidence suggested that Lopez was unable to understand the officers and that the testimony of Lopez and Reyes was not credible. Considering all of the circumstances, and giving proper deference to the trial court's determination, we hold that the State proved by clear and convincing evidence that Lopez voluntarily consented to returning to his apartment and to the search.

Conclusion

The trial court's judgment is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH