Jose Luis Valenzuela v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOSE LUIS VALENZUELA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-373

SEPTEMBER 14, 2005

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 2002-52]

HON. FLOYD G. ROGERS, JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Crawford County Circuit Court convicted the appellant, Jose Luis Valenzuela, of possession of marijuana with intent to deliver. He was sentenced to twenty years' imprisonment. On appeal, appellant makes four arguments: (1) the trial court was clearly erroneous in denying his motion to suppress; (2) no reasonable suspicion existed for the continuation of the traffic stop for a canine sniff; (3) the trial court erred in denying his due-process rights by the improper use of interpreters; and (4) his conviction was not supported by sufficient evidence. We affirm.

Arkansas State Police Trooper Jason Aaron testified that he was traveling eastbound on Interstate 40 on January 21, 2002, when he observed appellant driving erratically. A video camera in the trooper's vehicle began recording the events that transpired as soon as the trooper activated his blue lights. At 6:43 a.m. the trooper initiated a traffic stop. Trooper Aaron noticed that appellant was Hispanic. The trooper also discovered that two children, both of whom spoke some English, were traveling with appellant. During the course of the traffic stop, appellant told Trooper Aaron, in English, that he lived in Phoenix, Arizona, and that he had just bought his 1978 Bronco in Douglas, Arizona, a town on the Mexican border. Appellant testified that he liked the Bronco when he drove past a used-car lot and decided to buy it, paying about $2,000 in cash for the vehicle. Appellant told the officer that he and the children were traveling to Daytona, Florida, for a two-day vacation. Appellant could not tell the officer how many days it would take to drive to Florida. The trooper observed only two small duffle bags in the vehicle for appellant and the children's cross-country trip.

Appellant produced valid insurance, registration, and driver's license to Trooper Aaron. The trooper gave appellant a verbal warning. Then at 6:52 a.m., Trooper Aaron asked appellant to sit with him in his police car and requested consent to search appellant's vehicle. Trooper Aaron showed appellant the consent-to-search form after he explained it to him. When he presented appellant with the form, Trooper Aaron asked him, in Spanish, if he read Spanish. According to the trooper, appellant confirmed that he read Spanish and understood the form. Trooper Aaron observed appellant spend several minutes reading over the consent form. Appellant signed the form at the bottom, and he initialed throughout it.

Appellant testified at the suppression hearing that he did not understand what Trooper Aaron was asking him in regard to the consent-to-search form. Appellant stated that he told the trooper that he did not have his glasses, and therefore, he could not see very well. Appellant claimed that the trooper told him to simply sign and initial the form without reading it.

At 6:56 a.m. Trooper Aaron radioed Sergeant Jack Stepp for a drug dog, and the drug dog arrived on the scene at 7:03 a.m. The canine alerted on the Bronco. During the search, inside the vehicle, officers found a brand new floor jack and a brand new four-way tire tool. According to Trooper Aaron, the rims and tires of the truck appeared to be of greater value than the truck. He also noticed that the wheels did not have wheel weights on them to balance them. At that time, Trooper Aaron asked appellant if he would drive his car to the Exxon Gas Station for inspection of his tires.

Appellant complied with Trooper Aaron's request. At the gas station, the trooper let the air out of the Bronco's right front tire. The tire and rim did not sit all the way down on the concrete, indicating that something was inside the tire. Inside the tire, Trooper Aaron could see a steel container which, based upon his training and experience, he recognized as a concealment method used to transport narcotics. Trooper Aaron placed appellant under arrest when he discovered the first steel container.

Ultimately, Trooper Brian Davis drove the vehicle from the gas station to the Alma Police Department for further inspection. Trooper Davis testified that the vehicle did not drive normally, as though the tires were out of balance. All four tires were cut open revealing four steel canisters welded onto each wheel, totaling sixteen containers. Inside each container was compressed marijuana, weighing a total of 153.8 pounds. Appellant told the translator at the police station that he was a welder.

Appellant was charged with possession of marijuana with intent to deliver. He moved to suppress the evidence seized as a result of the search. At the hearing on the motion to suppress, the trial court heard testimony regarding the search and viewed a videotape of the traffic stop.1 The trial court denied the suppression motion.

Due to double-jeopardy concerns, we first must address appellant's challenge to the sufficiency of the evidence supporting his conviction. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). However, we note that appellant concedes in his reply brief that he failed to properly preserve this issue for our review. Therefore, we need not consider it further.

Next, appellant claims that the trial court's denial of his motion to suppress evidence was clearly erroneous. He argues that the search of his vehicle violated his Fourth Amendment constitutional rights because the State failed to prove a valid consent. In addition, appellant argues that no reasonable suspicion existed for the continuation of the stop for the canine sniff.

In reviewing a trial court's ruling on a motion to suppress evidence, we make an independent determination based on the totality of the circumstances, giving respectful consideration to the findings of the trial court, and we reverse the trial court's decision only if it is clearly erroneous. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). All searches without a valid warrant are presumptively unreasonable, unless they are shown to be within one of the exceptions to the warrant requirement. Lobania v. State, 60 Ark. App. 135, 959 S.W.2d 72 (1998). Consent is justification for a warrantless search. Id. The State must prove by clear and positive testimony that consent to search was freely and voluntarily given. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002).

At 6:52 a.m., Trooper Jason Aaron asked appellant to sit with him in his police car and requested consent to search his vehicle. Trooper Aaron showed appellant the consent-to-search form after he explained it to him. When he presented appellant with the form, Trooper Aaron asked him, in Spanish, if he read Spanish. According to the trooper, appellant confirmed that he read Spanish and understood the form. Trooper Aaron observed appellant spend several minutes reading over the consent form.

Appellant maintains that the State failed to prove that he understood the consent-to-search form because it was never established that he could read the Spanish consent form presented to him. Yet, at the suppression hearing, appellant, a forty-five-year-old man with a sixth-grade education, read, in Spanish, for the trial court part of the Spanish consent-to-search form. Moreover, he testified that his signature was at the bottom of the form and that his initials were throughout the form.

We note that the Miranda form bears out that appellant could read, write, and comprehend written Spanish, particularly as evidenced by his hand-written invocation of his right to counsel. Further, appellant's trial testimony illustrates that he understood the ramifications of consenting to a search of the vehicle. In addition, appellant later affirmed his consent to search by following the trooper to the next exit to allow the search to continue.

Appellant cites to Lobania, supra, in support of his argument. However, in that case, the interpreter's translation was so misleading as to indicate that he told Lobania that a search was allowed and forthcoming, rather than asking Lobania for his consent to search. Here, Trooper Aaron spoke to appellant in English and appellant responded to questions in English. Then, a Spanish consent-to-search form was provided to appellant because he said that he read Spanish and preferred the Spanish form instead of the English form. The evidence in this case does not establish that any misleading translation occurred as it did in Lobania, supra.

Appellant also cites to United States v. Guerrero, 374 F.3d 584 (8th Cir. 2004), but we find it distinguishable from the case at bar. In Guerrero, the Eighth Circuit Court found that the videotape of the traffic stop illustrated significant difficulties in communication between an English-speaking officer and a Spanish-speaking defendant. Id. Here, the videotape of the traffic stop illustrates that appellant responded appropriately, in English, to questions posed by Trooper Aaron. Moreover, the trooper used his Spanish-language skills to determine that appellant could read in Spanish and preferred to have the Spanish consent-to-search form. Additionally, at the hearing, the trial court ascertained that appellant could, in fact, read the Spanish consent-to-search form by having him read part of the form from the witness stand.

In this instance, the trial court, having watched the videotape of the traffic stop, heard how appellant's testimony departed from what the videotape showed the officer said to him during the stop with regard to the consent form. Appellant testified that he told Trooper Aaron that he did not have his glasses and could not see the form very well. There is nothing in the videotape that supports appellant's testimony. Additionally, appellant testified that Trooper Aaron said for him to just initial and sign the form. Again, there is nothing in the videotape to support appellant's testimony. As a result, we cannot say that the language barriers that appeared in Guerrero exist here. Appellant's claim that he did not understand English well enough to consent is belied by the videotape and his own testimony, which the trial court had the opportunity to observe. Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he is the person most interested in the outcome of the proceedings. Harper v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004). Therefore, the fact that appellant's account of what transpired was demonstrably inconsistent with the videotape was a sufficient basis for the trial court to reject appellant's testimony. Based upon the totality of the circumstances, giving respectful consideration to the findings of the trial court, we hold that the trial court was not clearly erroneous is denying appellant's motion to suppress.

Although appellant does not challenge the legality of the initial traffic stop, he does claim that his detention for the arrival of a trained drug dog was unreasonable. On appeal, appellant argues that there was no reasonable suspicion to detain him in order to run the drug-sniffing dog around his vehicle pursuant to Ark. R. Crim. P. 3.1 (2004). However, appellant did not explicitly raise this issue below in his motion to suppress or at the suppression hearing. We have long held that issues must be presented to the trial court in order to preserve them for appeal. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000); Rogers v. State, 66 Ark. 283, 989 S.W.2d 568 (1999) (citing Strickland v. State, 331 Ark.402, 962 S.W.2d 769 (1998)). We will not address an argument that was not made to the trial court as part of a motion to suppress. Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994). Furthermore, the trial court made no specific ruling as to whether reasonable suspicion existed to justify the detention based upon Rule 3.1. In this case, appellant filed a general motion to suppress, and the trial court simply denied that request without any mention of reasonable suspicion.

As a final matter for our consideration, appellant contends that the trial court violated his right to a fair trial by the improper use of interpreters. At the suppression hearing, the trial court received into evidence, without objection, the videotape of the traffic stop. In the tape, Trooper Aaron initially spoke in English to appellant, who likewise responded in English. However, at various points in the tape, Trooper Aaron and appellant conversed in simple Spanish phrases. At the hearing, there were two certified interpreters available to translate for the trial court and appellant. Because the videotape was admitted into evidence, the trial court believed that the interpreters had an obligation to translate what was being said on the videotape just as they would for testimony given from the witness stand. However, certified interpreter Raul Marquez refused to translate as directed by the trial court citing to "procedures" that would typically be followed in translating a videotape. As a result, the trial court threatened to hold Marquez in contempt of court for his refusal to do as the court ordered.2

Based upon this incident and without any supporting case authority, appellant contends on appeal that his right to a fair trial was violated by the trial court's improper use of interpreters. However, at no point in the proceedings did appellant make a motion or an objection preserving the issue for appeal. Appellant made no objection to the admission of the videotape without a transcript. Appellant made no objection when the trial court asked the interpreter to interpret the Spanish dialogue on the videotape. Appellant made no objection when the trial court threatened to hold the interpreter in contempt of court for not following the trial court's directive to interpret the videotape.

It is well established that in order to preserve a challenge for appellate review, a party must object at the first opportunity. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004). Furthermore, appellant's failure to cite to authority or make convincing argument on appeal is also sufficient reason to affirm. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). It is certainly not apparent without further research that appellant's argument is well-taken. See id. Appellant failed to object below to preserve this issue for appellate review and has failed to cite supporting authority or make a convincing argument on appeal. Therefore, we hold that appellant failed to properly preserve this issue for our review.

Nonetheless, appellant failed to demonstrate that any prejudice resulted from the trial court's insistence that the interpreter translate the videotape. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). An appellant is not entitled to a perfect trial, only a fair one. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). In this case, the fact that the trial court threatened to hold the interpreter in contempt of court and required him to remain and translate throughout the trial appears to have had no prejudicial effect on the proceedings or appellant's right to a fair trial. Once the trial had concluded and the jury was deliberating, the trial judge expressed to the interpreter that, although it did not understand why he refused to translate the videotape, it thought that the interpreter did a fine job of interpreting throughout the proceedings. As a result, we cannot say that any prejudice resulted from the trial court's insistence to require Marquez to translate the videotape.

We affirm.

Robbins, J., agrees.

Griffen, J., concurs.

Wendell L. Griffen, Judge, concurrring. Although the issue is moot because of our holding that appellant consented to the search of his vehicle, it should not go unnoticed that Officer Aaron requested appellant's consent to search after he had given appellant a warning about the traffic violation. I am concerned that Arkansas police officers are not concerned with drivers' liberty interests when they are initiating and conducting a traffic stop. In Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004), our supreme court explained:

[A]s part of a valid traffic stop, a police officer may detain a traffic offender while the officer completes certain routine tasks, such as computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning. During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered. However, after those routine checks are completed, unless the officer has a reasonably articulable suspicion for believing that criminal activity is afoot, continued detention of the driver can become unreasonable.

Id. at 514, 157 S.W.3d at 535 (citations omitted). There is nothing new or unique about these words. The United States Supreme Court explicitly rejected the idea that a police officer could search a vehicle based on a violation of a basic traffic law in Knowles v. Iowa, 523 U.S. 113 (1998). The law is clear: once a police officer issues a citation or a warning, the detention must cease unless the police officer has reasonable suspicion for believing that another crime is taking place. Extending traffic stops by requesting consent to search after traffic citations have been issued demonstrates disregard for drivers' Fourth Amendment rights.3

I am further troubled by what law enforcement officials may do to circumvent Knowles v. Iowa, supra. My concern is that police officers who do not keep drivers' constitutional rights in mind will detain drivers longer by delaying the time taken to write citations and do routine checks. With this extra time, they may run a canine around the drivers' vehicles, which they would be allowed to do because canine sniffs are not considered searches. See United States v. Place, 462 U.S. 696 (1983); Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002). And if the canine alerts, the police officer will have probable cause to search the driver's automobile. Willoughby v. State, supra. Such behavior would validate an otherwise constitutionally invalid search. The fact that the police officer had no probable cause to search the automobile prior to the canine sniff would be irrelevant. Without any checks, law enforcement officials have the potential to further erode Fourth Amendment rights.

I hope that my concerns are unfounded and that law enforcement officials will not resort to such tactics. However, in writing this concurrence, I also hope trial and appellate courts will be vigilant to spot and condemn any violation of the rights guaranteed by the Fourth Amendment.

1 On March 9, 2005, we rendered an unpublished per curiam opinion wherein we (1) noted appellant's failure to comply with the abstracting requirements contemplated by Ark. Sup. Ct. R. 4-2(a)(5) (2004); (2) clarified that the words spoken in the videotape could be included without translation in appellant's abstract, brief, and addendum; and (3) stated that appellant otherwise should move to waive the exhibit-reproduction requirements. Valenzuela v. State, CA CR 03-373, slip op. at 3-4 (Ark. App. March 9, 2005). Thereafter, on April 6, 2005, appellant's motion to waive the requirement that the videotape be reproduced was granted. Nonetheless, appellant filed a substituted abstract, brief, and addendum, in which he placed in the addendum a fourteen-page "transcript" of the videotape.

2 During jury deliberations, the trial court admonished the interpreter; however, he was not held in contempt of court.

3 I offer no opinion about whether Officer Aaron had reasonable suspicion in this case. However, the potential for abuse is evident.