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State v. Pena

Court of Appeals of Texas, Third District, Austin

August 13, 2019

The State of Texas, Appellant
v.
David Pena, III, Appellee

          FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2017-110, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly.

          OPINION

          Thomas J. Baker, Justice.

         David Pena, III, was charged with possession with intent to deliver between one and four grams of a controlled substance (methamphetamine). See Tex. Health & Safety Code §§ 481.102(6), .112(a), (c). Before trial, Pena filed a motion to suppress. The district court granted the motion after a hearing. The State appeals the district court's order granting the motion to suppress. See Tex. Code Crim. Proc. art. 44.01(a)(5). We will affirm the district court's order in part, reverse the order in part, and remand for further proceedings consistent with this opinion.

         BACKGROUND

         Pena filed a motion to suppress evidence pertaining to a statement that he made and to items that were seized from his trunk after he was arrested. During the suppression hearing, the arresting officer, Officer Christopher Koepp, was the only witness to testify.

         Officer Koepp testified that he observed Pena driving a car with an old and faded license plate and that he initiated a traffic stop for driving with an obscured license plate. See Tex. Transp. Code § 504.945(a). According to Officer Koepp, Pena admitted that the writing on the plates was faded. Officer Koepp performed a warrant check and discovered a warrant for Pena's arrest for the offense of theft by check. Officer Koepp asked dispatch to confirm that the warrant was still active by contacting "the original agency that the warrant [wa]s out of." Dispatch later confirmed that the warrant was active. Officer Koepp then arrested Pena and discovered "a meth pipe in" Pena's pocket while arresting him. After finding the pipe, Officer Koepp searched the car. While searching the trunk, Officer Koepp and other officers found a handgun, "approximately 3.7 grams" of what appeared to be methamphetamine, multiple clear baggies, two digital scales, and another glass pipe "with pink residue inside the pipe." After the officers completed the search of the trunk and the remainder of the car, they released the car to Pena's son who had been a passenger in the car.

         During the suppression hearing, a recording from Officer Koepp's dashboard camera was admitted into evidence. The district court reviewed the recording after the suppression hearing concluded. The recording is generally consistent with Officer Koepp's testimony regarding the reason that he initiated the traffic stop, regarding Pena's admission about the license plate's condition, regarding Officer Koepp's learning about a warrant for Pena's arrest, and regarding Officer Koepp's asking dispatch to confirm the warrant's status. On the recording, Officer Koepp informed Pena that he will have to go to jail if the warrant is confirmed to be active. After dispatch verified that the warrant was active, Officer Koepp told Pena that he was being arrested, placed him in handcuffs, performed a search of his person, and discovered a glass pipe in his pocket. Officer Koepp then asked Pena if there was anything illegal in the car, and Pena stated that there is "maybe a couple of grams" and a weapon in a black bag in the trunk. Officer Koepp then placed Pena in the back of his patrol car. Officer Koepp and two other officers searched the trunk and found a handgun and several baggies containing a white crystalline substance. Shortly thereafter, Officer Koepp read Pena his Miranda rights, and Pena stated that he understood those rights.

         After viewing the recording, the district court issued an order granting Pena's motion to suppress and issued the following findings of fact and conclusions of law relevant to the issue on appeal:

Findings of Fact
1.Comal County Sheriff's Deputy Koepp has proven himself believable, and his testimony is credible.
2.Deputy Koepp articulated facts to justify the initial stop of the Defendant.
3. After the initial stop, Deputy Koepp conducted a warrant check and verified the existence of a non-drug-related warrant (theft by check) for the arrest of the Defendant.
4. During the pendency of verification of the warrant, Deputy Koepp indicated that upon verification of the warrant the Defendant would be arrested but Defendant's son would be allowed to drive the vehicle from the scene of the traffic stop.
9. At or near this time, two additional police officers arrived as back-up to assist Deputy Koepp.
11. After the warrant was verified, Defendant was arrested, handcuffed and taken into custody.
12. After the custodial arrest, the Defendant's person and clothing were searched.
13. During the search of the Defendant's person, a pipe commonly associated with illicit drug use was found in a pants pocket of the Defendant.
22. Without reciting the Miranda and Texas Code of Criminal Procedure article 38.22 admonitions or receiving waivers thereto, Deputy Koepp asked Defendant if there was anything in the vehicle.
24. The Defendant replied that there was something in the trunk.
26. Thereafter, the trunk was searched where alleged illicit narcotics were found inside a backpack along with a handgun.
30. At no time after the search did Deputy Koepp express, on the video-SX #1 or during the hearing on the motion to suppress, a reason, cause or other articulable fact to justify a search of any portion of the vehicle, specifically including its trunk, for the offense of arrest (theft by check) or any other probable cause arrest arising thereafter-other than receipt of Defendant's statement that there was something in the trunk.
Conclusions of Law
A. Comal County Sheriff's Deputy Koepp conducted a lawful stop of Defendant's vehicle based upon probable cause of a traffic violation.
C. Deputy Koepp lawfully arrested the Defendant for an outstanding warrant alleging a non-drug-related offense and conducted a lawful pat-down and search incident to the arrest of the Defendant's person.
D. Deputy Koepp lawfully seized a pipe commonly associated with illicit drug use from the Defendant's pant pocket, yet the Defendant was never charged with possession of drug paraphernalia.
E. The existence of the pipe on the Defendant's person did not constitute probable cause to believe additional evidence of the offense of arrest (theft by check) would be found in [the] vehicle.
F. The existence of the pipe on the Defendant's person did not, in and of itself, constitute probable cause to believe additional evidence of the offense of possession of ...

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