Eliseo Lopez v. The State of Texas--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ELISEO LOPEZ, )

) No. 08-05-00283-CR

Appellant, )

) Appeal from the

v. )

) 384th Impact District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20040D04422)

)

O P I N I O N

Appellant was indicted for the offense of possession with intent to deliver cocaine, having an aggregate weight of 400 grams or more. On April 18, 2005, the trial court conducted a hearing on Appellant=s motion to suppress and denied the motion. On June 9, 2005, Appellant pleaded guilty to a lesser included offense. The trial court sentenced Appellant to 10 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. In this appeal, Appellant contends the trial court erred in denying his motion to suppress because the State failed to prove by clear and convincing evidence that his consent to search was given freely and voluntarily; and further, any consent was withdrawn by him prior to the discovery of the contraband. We affirm.

On August 23, 2004, Detective Barry Alvarez was assigned to the Interdiction Unit of the El Paso Police Department, specifically, the GRAB unit, a special unit which searches for narcotics or currency involving narcotics and covers the ground, railroad, airport, and parcel services. On that day, the detective was surveilling the main lobby area of the Greyhound bus station on W. San Antonio street. Detective Alvarez noticed Appellant walking through the terminal with very little luggage, carrying only a blue backpack. After a boarding announcement, Detective Alvarez watched Appellant walk quickly toward a bus having destinations in New Mexico, Texas, and Oklahoma and saw that Appellant was the first person in line to board. Then the detective saw Appellant board the bus, and the detective and his partner Detective Ruben Cardenas followed behind the Appellant onboard. Appellant walked to the back of the bus and made a telephone call on a cell phone. Detective Alvarez also testified that the bus destinations were significant to him because they had made several narcotics seizures on that bus line in the past, as it leaves El Paso, a Asource city,@ and travels northbound to larger cities that are usually Ademand@ cities. The detectives were dressed in plainclothes, wearing t-shirts and jeans. Both detectives were armed. Appellant took a seat in the last row next to the window, just in front of the restroom, on the left side of the bus. Detective Alvarez was standing behind Appellant=s row, right next to the restroom. The two officers approached Appellant and Detective Alvarez identified himself and Detective Cardenas as police officers. Detective Alvarez displayed his badge and police I.D. and explained that their duties at the bus station were to search for contraband, including drugs and weapons. Detective Alvarez asked Appellant if they could see his bus ticket and I.D. and Appellant said, Asure.@ As he gave this information, Appellant began to explain why his ticket and I.D. were in different names, stating that his middle name was on the ticket and not his first name. Detective Alvarez noticed several other Aindicators@ of a narcotics courier that they had seen in past narcotics cases, including that the ticket was bought that morning, was paid for in cash, and was a one-way ticket to Hobbs, New Mexico. Detective Alvarez also identified the following facts as indicators: Appellant was carrying little or no luggage at all; Appellant was Ascanning@ the area; and Appellant was in a hurry to board the bus, being the first passenger in line to board.

Detective Alvarez stated that the tone of conversation with Appellant was friendly and casual. After he returned Appellant=s ticket to him, Detective Alvarez asked Appellant how long he had been in El Paso and the purpose of his visit. Appellant said that he had been in El Paso three days visiting family in Socorro and in the Lower Valley. Appellant did not remember the name of the street he was visiting, but mentioned businesses in the area which were familiar to Detective Alvarez. After those questions, Detective Alvarez asked Appellant for consent to search his luggage and Appellant said, Asure.@ Detective Cardenas searched Appellant=s backpack and found nothing. Detective Alvarez asked Appellant if they could search his person and Appellant said, Ayeah@ or Asure.@ Appellant was sitting while Detective Alvarez conducted the search. Detective Alvarez proceeded to search Appellant=s legs and his front abdomen, which Achecked clear.@ The detective then asked Appellant to lean forward, but Appellant did not respond. After a second request, Appellant asked him Awhat for.@ Detective Alvarez did not reply to Appellant=s question, but instead asked Appellant for a third time if he could lean forward. Appellant then leaned forward and Detective Cardenas, who was standing behind Appellant began patting and searching Appellant=s lower back area and located a bundle underneath Appellant=s clothing. The bundle appeared to be narcotics based on the way it was packaged in black electrical tape and the way it was hidden underneath Appellant=s clothing with a body wrap. The bundle later tested positive for cocaine and weighed 1.3 pounds.

On cross-examination, Detective Alvarez testified that about five minutes elapsed from the time they started talking to Appellant to the time Detective Cardenas found the cocaine. Detective Alvarez admitted that he was aware that Appellant lived in Hobbs and that it was not unusual that he had a bus ticket to go home. According to Detective Alvarez, Appellant had the indicators of a narcotics courier because: he paid cash for his ticket; was leaving El Paso, a source city for drugs, and was going to Hobbs, a demand city; and had used his middle name instead of his first name on his ticket. Detective Alvarez conceded that they did not advise Appellant that he had a right not to consent. Even though their task force has a written consent form, departmental policy does not require its use, but rather leaves it to the investigator=s discretion.

At the suppression hearing, Appellant testified that he did not feel free to decline to do what the officers asked him to do and thought that the officers were not going to leave him alone if he did not do as they asked. Appellant agreed that he gave them consent to search his bag, but denied giving them permission to search his person. According to Appellant, the first time the officer asked him to lean forward, he did not respond. The officer then asked him again a little bit louder and Appellant asked him Awhat for.@ The third time the officer told him to lean forward, Appellant still did nothing. The officer then reached over and pushed Appellant=s shoulder forward. When Appellant was moved forward by the officer, they then saw what he had and reached and grabbed it.

On cross-examination, Appellant stated that his I.D. shows his name as Eliseo H. Lopez and that his full middle name, Hugo, does not appear on it. He admitted that he bought the ticket that morning with cash. He denied that he walked quickly to the bus, stating that he was already by the door before the boarding announcement. Appellant stated that he received a phone call just prior to boarding the bus. Appellant testified that he told Detective Alvarez that he did not have consent to search his person. The detective, however, started patting him down between his legs and did not stop when Appellant objected. Appellant denied that he voluntarily leaned forward; rather, Detective Alvarez put his hands on Appellant=s shoulder and gave him a little tug forward. Appellant admitted that he could have stood up and taken off, but he did not and he agreed that Detective Cardenas was not blocking the aisle. However, he knew that if he did not comply, they probably would have done something to him and he did not want to suffer any bodily harm.

In his first issue, Appellant contends that the State failed to prove by clear and convincing evidence that any consent to the search of his person was given freely and voluntarily. Specifically, he asserts that anything he had said that led the officers to believe that he consented to the search was not voluntary, but rather was coerced by an intimidating, close quarters interrogation by two armed officers and was in response to their apparent authority over him. And in a related way, he argues in his second issue that any consent given, was later withdrawn.

Standard of Review

We review the trial court=s ruling on a motion to suppress for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88 9 (Tex.Crim.App. 1997). Under this standard, we give almost total deference to the trial court=s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.; Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 28 (Tex.Crim.App. 2000). The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855 56 (Tex.Crim.App. 2000).

The Encounter

The Fourth Amendment and Article I, ' 9 protect persons from unreasonable searches and seizures. See U.S. Const. amend. IV; Tex. Const. art. I, ' 9. However, not every encounter between an individual and a police officer triggers these constitutional protections. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). During an encounter, a law enforcement officer may approach a person and engage in conversation and such interaction remains consensual, and thus, not an investigative detention or an arrest, so long as the officer does not convey a message that compliance with his or her request is required. See Bostick, 501 U.S. at 435, 111 S.Ct at 2386; Hunter, 955 S.W.2d at 103; see also Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). The dispositive question is whether, under the totality of the circumstances, the detectives= conduct would have communicated to a reasonable person that he was not free to decline the detectives= requests or otherwise terminate the encounter. See Hunter, 955 S.W.2d at 104; see also State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999).

Appellant asserts that the encounter between him and the police detectives was not a consensual encounter because he did not feel free to decline to do what the detectives told him to do in the close confines of the bus. Appellant argues that under the totality of the circumstances, a reasonable person would have believed that he was not free to leave the bus and would have yielded to the detectives= cumulative show of authority.

Appellant argues that unlike Hunter v. State, the facts in this case show that the State failed to prove that his encounter with the detectives was consensual. In Hunter, two plainclothes officers, not displaying weapons, approached Hunter at a bus station as he waited to board a bus. Hunter, 955 S.W.2d at 103. After identifying themselves as officers, one officer asked Hunter about where he was traveling and then asked if he could see Hunter=s bus ticket; the other officer stood several feet away, but within hearing range. Id. Hunter gave the officer his ticket, which the officer examined and then returned. Id. The officer asked Hunter for his identification, which Hunter did not have. Id. The officer then asked Hunter if he was carrying any narcotics and Hunter replied that he was not. Hunter, 955 S.W.2d at 103. The officer then informed Hunter that he was conducting a narcotics investigation and asked for permission to search his bag, informing him that he did not have to consent to the search. Id. The officer testified that Hunter agreed to the search, which resulted in the discovery of cocaine. Id. The Court held that under the totality of the circumstances, the exchange was a consensual encounter because: the officers were dressed in plainclothes and their weapons were concealed; only one officer questioned Hunter, while the other stood several feet away; the officer did not retain Hunter=s bus ticket; neither officer stated a belief that Hunter was carrying drugs; Hunter was specifically told that he did not have to consent to a search; and the officer did not suggest that he would get a warrant if Hunter refused to give his consent. Id. at 104. The Hunter Court concluded that no detention had occurred because under those facts, Aa reasonable person would have felt free to walk away from [the officer] at any time during the encounter, prior to the search of the bag.@ Hunter, 955 S.W.2d at 104.

In this case, Appellant argues that the facts are substantially different from Hunter because the encounter involved two officers who were positioned very close to Appellant; it occurred inside the bus, which is a more coercive environment than a bus station because it is a close quarters situation; the detectives did not inform Appellant that he had the right not to consent; the detectives had written consent forms, but chose not to use them; and the detectives= weapons were undoubtedly apparent because it would be virtually impossible to conceal a weapon under a t-shirt.

The evidence shows that although Appellant was approached by two detectives, they were in plainclothes, only one detective questioned Appellant and did so in a friendly conversational manner, neither detective blocked Appellant into his seat or his way out of the aisle, and no weapons were displayed. Like in Hunter, Detective Alvarez asked to see Appellant=s bus ticket, but returned it to him. Further, there is no evidence that the detectives in anyway suggested that if Appellant did not give his consent, they would get a search warrant. See Hunter, 955 S.W.2d at 104. While the detectives did not affirmatively tell Appellant that he did not have to consent to the search, failure to inform an individual that he can refuse consent does not automatically render the consent involuntary; rather, failure to so advise is only one factor in determining whether the encounter constitutes a seizure. See Velasquez, 994 S.W.2d at 679; Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App. 2002). Likewise, the location of the encounter, in this case within the confines of the bus, is one factor, but not the only one. Bostick, 501 U.S. at 436, 111 S. Ct. at 2387. As the Supreme Court noted in Bostick, the inquiry is whether under the circumstances, a reasonable person would feel free to decline the officer=s requests or otherwise terminate the encounter, that is, whether the officer=s conduct was coercive. Bostick, 501 U.S. at 436, 111 S. Ct. At 2387; see also Velasquez, 994 S.W.2d at 679 (test is not whether a timid person would feel free to terminate the interview, but instead it applies a Areasonable person@ standard). We conclude that the facts show the detectives did not convey a message that Appellant=s compliance with their requests was required and that under the totality of the circumstances, a reasonable person would have felt free to terminate the encounter. See Hunter, 955 S.W.2d at 104. Thus, Appellant=s encounter with the detectives was consensual and not a detention.

Consent to Search

With regard to Appellant=s consent to the search of his person, the Texas Constitution requires the State to prove by clear and convincing evidence that Appellant=s consent was voluntarily given. Carmouche, 10 S.W.3d at 331; State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997). The validity of an alleged consent to search is a question of fact to be determined from all the circumstances. See Carmouche, 10 S.W.3d at 331; Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991).

At the suppression hearing, Appellant denied that he gave the detectives consent to search his person. Appellant stated that when he did not lean forward as Detective Alvarez requested, the detective reached over and when the detective saw what he had, the detective reached and grabbed it. According to Detective Alvarez, however, when he asked Appellant for consent to search his person, Appellant said, Ayeah@ or Asure.@ Detective Alvarez then patted down Appellant=s legs and abdomen, which Achecked clear.@ The detective then asked Appellant to lean forward to search his back area. After a second request, Appellant asked Awhat for@ to which Detective Alvarez did not reply. According to Detective Alvarez, Appellant leaned forward after a third request and the detective continued the search, which led to the discovery of the bundle of cocaine concealed underneath Appellant=s clothing at his back.

Appellant asserts that Detective Alvarez=s persistent questioning, the close quarters environment with armed officers, and the equivocal response following the third request to lean forward, show that any consent he gave was not freely and voluntarily given. However, from the evidence presented at the hearing, the trial court, as the sole fact finder, could have reasonably determined that Appellant gave his consent to the search by stating Ayeah@ or Asure@ and although he later hesitated when the detective proceeded to search his back, Appellant nevertheless leaned forwarded and permitted the search to continue. Applying appropriate deference under our standard of review, we conclude that Appellant=s consent to the search of his person was voluntarily given. Further, despite Appellant=s contention that his lack of verbal response to Detective Alvarez=s requests during the search should have been interpreted as a withdrawal of consent, or as a Ano,@ the trial court could have reasonably found that his physical movement demonstrated no such withdrawal occurred. Because Appellant voluntarily gave his consent to the search of his person after a consensual encounter with the detectives and such consent was never withdrawn, we conclude that the trial court did not err by denying Appellant=s motion to suppress. Issues One and Two are overruled.

We affirm the trial court=s judgment.

August 17, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)