Court of Appeals of Texas, Third District, Austin
THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2017-110, THE
HONORABLE DIB WALDRIP, JUDGE PRESIDING
Justices Goodwin, Baker, and Kelly.
J. Baker, Justice.
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.
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.
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.
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
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
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
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
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