Kirkpatrick v. State
| Decision Date | 19 October 2016 |
| Docket Number | No. 08-14-00255-CR,08-14-00255-CR |
| Parties | WILLIAM KIRKPATRICK, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 1 of El Paso County, Texas
(TC # 20080D04797)
In this appeal from a drug possession charge, Appellant challenges his four hour detention during a traffic stop. One might assume that the drugs for the possession charge were discovered in that traffic stop. They were not; the drugs were found in a residence that Appellant had left earlier that day. Some money, and possible drug paraphernalia were found in Appellant's car, but those items were found within the first few minutes of the stop, and as the result of what the trial court implicitly found to be a voluntary consent to search. While the later stages of the stop transgress the Fourth Amendment, we are convinced beyond a reasonable doubt that the elongated detention had nothing to do with Appellant's conviction. Accordingly, we affirm.
FACTUAL SUMMARY
Appellant was charged with possession with intent to deliver cocaine (more than 400 grams) and possession of marijuana (more than four ounces, but less than five pounds). A jury found him guilty of those charges, and the trial judge sentenced Appellant to fifteen years on the cocaine charge and one year on the marijuana possession charge. The convictions arose from the seizure of those items from a residence in El Paso on September 24, 2008. A chronology of the events for that day tells the story.
On the morning of September 24th, Lieutenant Kyle Summers, a member of a narcotics unit in the El Paso Police Department, conducted surveillance at an Office Depot parking lot. He testified that he saw Appellant and another man, later identified as Steven Brown, exit the store carrying plastic bins and cardboard boxes which Lieutenant Summers believed are commonly used to ship narcotics. Lieutenant Summers followed Appellant and Brown as they drove to a house on Red Hawk Street.
Appellant and Brown arrived at the Red Hawk address at 12:00 noon. Appellant got out the car and went into the house through the front door. He exited the house a few minutes later and went back to the car. Appellant and Brown then went around to the side of the house where there was an entrance to the garage. They were carrying the items from Office Depot. Lieutenant Summers maintained surveillance from outside; the address was already suspected to be a possible stash house. Appellant and Brown then left the house at 1:30 p.m. and no longer had the Office Depot items with them.
Lieutenant Summers stayed at the house, but had Detective Thomas Lawrence trail Appellant's car. Appellant and Brown drove to a local hotel. They exited the hotel with their luggage about forty minutes later. Appellant got onto an Interstate access road that had threelanes of traffic. Detective Lawrence followed them and testified that he saw Appellant make a turn from the center lane, across the left lane, and then onto an on-ramp to the Interstate. After witnessing what the detective considered to be an improper lane change, he called a marked police unit to make a traffic stop. Detective Lawrence freely admits that he was looking for a traffic violation so they could pull Appellant over.
Officer Hiltl was standing by in a marked police cruiser for just this purpose. Officer Hiltl was assigned to the narcotics section as a K-9 handler. When he got the radio message about the traffic infraction from Detective Lawrence, Officer Hiltl caught up with Appellant's car and pulled him over. The stop was made at 2:36 p.m. Officer Hiltl first asked for and received Appellant's drivers license and insurance information, and Brown's identification. With that information, Officer Hiltl started a warrants check, and while that was on-going, he returned to speak to Appellant.1 A warrants check can take anywhere from fifteen to thirty minutes depending on how busy the information channel is at the time. Officer Hiltl testified it was busy.
Officer Hiltl asked Appellant to exit the car so they could speak away from traffic on the busy street. Officer Hiltl introduced himself as a K-9 handler, explained that El Paso is a hub for narcotics, and asked Appellant if he had any weapons, drugs, or large amounts of money in his vehicle or on his person. Appellant replied he did not. Officer Hiltl asked if he could search Appellant's person and his car, and according to Officer Hiltl, Appellant agreed.
Appellant had nothing on his person. Officer Hiltl then used his dog to search the car. The dog alerted on the center arm rest of the vehicle. Inside, the officer found just over $5000 in cash. Trained dogs often alert to money because the odor of narcotics is transferred from thehand of a person that has touched both narcotics and the money. A similar amount of cash was found in Brown's pants pocket. This initial exchange, including the pat down search and the K-9 search, would have taken twenty to twenty-five minutes.
A further search turned up a roll of tape in a suitcase, a scale found underneath the passenger seat, and a receipt from Wal-Mart for packing items commonly used in shipping narcotics.2 Detective Lawrence had also followed Appellant from the hotel and at some point came on the scene to assist Officer Hiltl.3 Detective Lawrence questioned both Appellant and Brown about where they had been and where there were going. He was trying to see if either would admit to having been at the Red Hawk address. Neither admitted to being there.
Back at the Red Hawk address, several officers accompanied by a drug sniffing dog approached the front door of the house for a "knock and talk." Records pinpoint the knock and talk as taking place at 2:41 p.m. As the detectives passed by the garage door, the dog alerted. The detectives knocked on the door and spoke with Douglas Rogers, who along with Sheryl Ramos, were identified as in charge of the residence. Rogers would not consent to a search of the house, and the officers then applied for a search warrant. The warrant was issued at 4:20 p.m. and it was executed just after 5:00 p.m. The search of the home turned up a bundle of marijuana in plain view in the garage. The detectives also found the packaging items that Appellant was seen with that morning and reflected on the Wal-Mart receipt found in Appellant's car. In a laundry room, the detective's found cocaine (491 grams) in a cardboard box. The box was lined with carbon paper and the cocaine was in a plastic bin.
Meanwhile, Officer Hiltl was holding Appellant and Brown at the scene of the traffic stop while the other detectives obtained and executed the search warrant on the Red Hawk address. The entire traffic stop took four to four and half hours. Appellant was then placed under arrest.
Appellant, Steven Brown, and Dennis Rogers all testified at trial. Mr. Brown testified that he and Appellant had come to El Paso from Indiana on a kind of vacation, and to look at automobiles.4 Brown claimed that on the morning of September 24th, they went to a Wal-Mart and then to the Red Hawk address to get their hair cut by Rogers.5 They also dropped off some items that Rogers had asked Appellant to buy at Wal-Mart. Brown claims that Rogers offered them some marijuana but Appellant declined.
Rogers testified that he was a barber by trade. After being evicted from his shop, he started cutting hair out at his house on Red Hawk. Rogers's sister dated Appellant in 1999 or 2000 at which time he first met Appellant. They kept in touch over the years when Appellant would come into town. He claimed that on September 24th, Appellant came to his house to get a haircut and drop off the packing items that Rogers had asked him to pick up. Rogers testified that he offered Appellant "some weed" but Appellant was not interested. Rogers claimed the cocaine was his and he never showed it to Appellant. Rogers previously pled guilty to possession charges for both the marijuana and cocaine.
The detectives interviewed Rogers following his arrest. In that interview, he claimed that Appellant had asked Rogers to use his house to wrap up the drugs. Rogers told the police thatboth Appellant and Brown had wrapped drugs up at the house on other occasions. At trial, however, Rogers claimed that following his arrest he panicked and everything he told the police in his interview was a lie to try and protect himself from a serious drug charge.6
Appellant also testified at trial, and similarly described coming to El Paso to look for cars that he bought here, refurbished, and then resold in Indiana. He was carrying cash for that purpose. About a month before, he had purchased the vehicle he was stopped in and was also in El Paso to pick the car up and drive it back to Indiana.7 While in town, he saw his children from a previous marriage.
On the morning of September 24th, Appellant and Brown went to a Wal-Mart to get some clothing items for their drive back to Indiana. Appellant testified that he never went to an Office Depot. While at Wal-Mart, he got a call from Rogers asking him to pick up some packing supplies. He dropped them off when he and Brown went to Rogers' house to get haircuts. While at the house, Rogers offered to sell Appellant some marijuana, but Appellant declined. Appellant testified that he did not know anything about the cocaine.
PROCEDURAL BACKGROUND
Appellant filed several generic motions to suppress which challenged the admissibility of any statements that he made and any tangible evidence seized by the police. The transcript of the suppression hearing reflects that Appellant specifically challenged the traffic stop, the length of the detention, and everything that occurred between the initial stop and the arrest. At the hearing, Appellant did not challenge the search of the Red Hawk address. Officer Hiltl and thedetective who secured the warrant for the Red Hawk address testified at the hearing, as did Appellant.
The...
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