Reversed and Remanded and Opinion Filed February 4, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00544-CR
JUVENCIO SAMUEL CARILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F10-19275-I
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Myers
Opinion by Justice Bridges
Juvencio Samuel Carillo appeals his conviction for possession with intent to deliver more
than 400 grams of cocaine. After the jury found him guilty, the trial court assessed punishment
at fifteen years in prison and a $500 fine. In two issues, appellant claims the trial court erred by
overruling his motion to suppress and he received ineffective assistance of counsel at trial. We
reverse and remand for further proceedings.
In March 2010, Victor Rodriguez of the Dallas County Sheriff’s Department Intelligence
Unit, got a tip about a mobile home that was involved in “narcotics transactions.” On March 9,
units from the High Intensive Drug Trafficking Area group began surveillance of the mobile
home. A black pickup driven by appellant stopped at the house for ten to fifteen minutes, then
left. Officers in unmarked cars began following the pickup. After thirty minutes, Rodriguez
believed appellant had either figured out he was being followed or was going to conduct a
narcotics transaction because appellant started making “heat runs,” described as driving to
“different locations . . making u-turns, started going into businesses. There’s no stopping. . . the
heat runs is to kind of lose” whoever is following the driver. Rodriguez asked for a marked
sheriff’s car to follow appellant, spot a transportation code violation, and pull him over.
Deputy Omaro Calderon and his partner Kenneth Hurd of the Dallas Sheriff’s
Department followed appellant for ten to fifteen minutes before seeing the back wheels of the
pickup cross a double white line. They then pulled appellant over. Appellant, who was calm and
cooperative, answered Calderon’s questions and provided his license. After everything,
including a warrant check, came back clear, Calderon asked if they could search the pickup.
When appellant refused to consent, the K9 unit was called.
Deputy Terry Trout is the dog handler for the Dallas County Sheriff’s Office. He and his
dog, Duke, were called around 1 or 1:30 p.m. Although unable to give exact times, Trout
estimated it took him “a little over 45 minutes, maybe 50, 55 minutes” to get there. When they
arrived, Duke got out, approached the pickup, and alerted on the back right passenger door.
Trout opened the back door, and Duke immediately alerted on a partially opened tool bag. Trout
removed the bag and found a black brick-like bundle that he cut open and tested for narcotics.
The field test showed the substance was cocaine.
Appellant was arrested and charged with possession with intent to deliver more than 400
grams of cocaine. He filed a motion to suppress, claiming the drug evidence was the result of a
warrantless search made without his consent and without probable cause. The motion was
carried to trial. After the State rested, appellant asked for a ruling on the motion. Appellant
argued the traffic stop was pretextual, and because there was no reasonable suspicion to detain
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him further, the detention was unreasonable, particularly in light of the one-hour wait for the K9
unit to arrive. In response, the State argued the traffic stop was valid and
once the detention is extended beyond that initial traffic stop, there does
have to be reasonable suspicion that that car contains narcotics in order to
continue the detention. And we believe that we have shown there was reasonable
suspicion after that point to continue to detain the vehicle in that the detention,
based on the circumstances, was reasonable.
The trial court found the initial detention was valid and, stating that “the critical thing,
right or wrong, is that the defendant did not give consent to search [and] that allowed the officers
then to seek a dog sniff,” denied the motion. The trial court also held the length of time was not
unreasonable under the circumstances. The jury found appellant guilty, and this appeal followed.
In his first issue, appellant claims the trial court erred by denying his motion to suppress.
Under this issue, appellant contends the drug evidence should have been excluded because the
initial stop and detention were pretextual and, even assuming they were not, the officers who
stopped appellant had no specific articulable facts to justify a prolonged detention that resulted in
a warrantless search of his truck. We agree.
When reviewing a trial court’s ruling on a motion to suppress, we view all the evidence
in the light most favorable to the ruling. State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008). We apply a bifurcated standard of review, giving almost total deference to
the trial court's findings of historical fact and reviewing de novo the trial court’s application of
the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When, as here, the trial court does
not make explicit findings of historical facts, we review the evidence in the light most favorable
to the trial court’s ruling. Carmouche, 10 S.W.3d at 327.
To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the
initial burden of producing evidence rebutting the presumption of proper police conduct which,
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as in this case, he may do by establishing the search or seizure occurred without a warrant.
Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Once the defendant makes this
showing, the burden of proof shifts to the State to establish the search or seizure was reasonable.
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
An officer may stop and detain a person for a traffic violation. Garcia v. State, 827
S.W.2d 937, 944 (Tex. Crim. App. 1992). Routine traffic stops are analogous to investigative
detentions and invoke a “Terry stop” analysis. Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
Under a Terry stop analysis, we first decide whether the officer’s action was justified at the
inception. State v. Duran, 396 S.W.3d 563, 569 (Tex. Crim. App. 2013).
Here, Calderon testified that, when appellant’s pickup exited I-30, it crossed the double
white lines while moving into the right lane of traffic. Because this is a violation of the Texas
Transportation Code, Calderon and his partner activated the patrol lights and pulled appellant
over. The purpose of the stop, therefore, was to investigate the traffic violation and issue either a
warning or citation. We overrule appellant’s first issue to the extent he complains the purpose of
the traffic stop was invalid.
The second prong under a Terry analysis is whether the search and seizure was
reasonably related to the circumstances that justified the stop in the first place. Kothe v. State,
152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In other words, the investigative stop may last no
longer than necessary to effectuate its purpose. Id.; see United States v. Brigham, 382 F.3d 500,
512 (5th Cir. 2004) (en banc). Once the “computer check is completed, and the officer knows
that this driver has a currently valid license, no outstanding warrants, and the car is not stolen,”
the traffic-stop investigation has been fully resolved, the detention must end, and the driver must
be permitted to leave. Kothe, 152 S.W.3d at 63. Continued detention is justified only if the
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officer has developed reasonable suspicion that the detainee is or will be engaged in other
criminal activity. Davis v. State, 947 S.W.2d 240, 243–33 (Tex. Crim. App. 1997); McQuarters
v. State, 58 S.W.3d 250, 256 (Tex. App.—Fort Worth 2001, pet. ref’d). To establish reasonable
suspicion, an officer must be able to articulate something more than an inchoate and
unparticularized suspicion or hunch. Davis, 947 S.W.2d at 245 (citing U.S. v. Sokolow, 490 U.S.
1, 7 (1989)). The determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior. Id. (citing Illinois v. Wardlow, 528 U.S. 119
(2000)). Police may not, however, unnecessarily detain drivers in the hopes of uncovering
evidence of some other crime. United States v. Sharpe, 470 U.S. 675, 685—86 (1985).
During the investigation, Calderon clearly had the right to request a driver’s license,
insurance papers, information on the ownership of the vehicle, appellant’s destination, and the
purpose of the trip. See Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998,
pet. ref’d). Because this was a routine traffic stop, Calderon was also authorized to run a license
and warrants check. Kothe, 152 S.W.3d at 63 (stating officer may request certain information
from driver, including driver’s license and car registration and may conduct computer check of
that information). Once the license and warrants check came back clear, the stop was over and
appellant should have been issued a warning or citation and allowed to leave unless police had
developed reasonable suspicion he was engaged in further criminal activity. Thus, we turn to the
record to determine whether there is evidence to support the State’s assertion and the trial court’s
implicit ruling that further detention was warranted.
A law enforcement officer conducts a lawful temporary detention when he has a
reasonable suspicion to believe the individual is violating the law. Ford, 158 S.W.3d at 492.
Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with
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rational inferences from those facts, would lead the officer to conclude reasonably that a
particular person actually is, has been, or soon will be engaged in criminal activity. Castro v.
State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In making a reasonable suspicion
determination, we disregard the subjective intent of the officer making the stop and consider
solely, under the totality of the circumstances, whether there was an objective basis for the stop.
See Ford, 158 S.W.3d at 492–93. A party’s refusal to consent to a search does not, without
more, constitute reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 437 (1991);
Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
Calderon testified he and Hurd were called to follow appellant and began doing so when
appellant was traveling north on I-635 at or below the posted speed limit. They followed
appellant for ten to fifteen minutes. Calderon said he was watching for any traffic violation
although he knew this was a “drug stop.” Appellant periodically switched lanes, but each time,
he did so after properly signaling. The truck exited onto I-30 headed east, then turned off the
freeway at the Beltline-Broadway exit. While exiting, the truck’s back tires crossed the double
white line. Upon seeing the traffic violation, the officers activated their patrol lights and
followed the truck to the parking lot of a nearby pawn shop. Appellant and another Hispanic
male exited the truck and began walking to the pawn shop when the officers called the men over.
Calderon described both men as very calm and cooperative, not anxious or nervous. Calderon
asked appellant what they were doing, and appellant said he was a musician or a DJ, looking to
buy some speakers. Calderon verified appellant’s insurance and checked his driver’s license.
After he confirmed there were no outstanding warrants, Calderon asked if they could search the
truck. Appellant refused to consent. According to Calderon, that “pretty much end[ed his] part
of the stop.” Calderon said he did not look inside the truck. Nothing in Calderon’s testimony
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indicates a reasonable suspicion justifying a further detention or warrantless search. In fact,
Calderon’s testimony indicates no criminal or unusual activity that would warrant a person of
reasonable caution to believe another offense had been or was being committed. See Davis, 947
S.W.2d at 243.
Rodriguez testified he got a tip from an Immigration and Customs Enforcement agent
who said if Rodriguez “ha[d] some time, you know, go out. And this is the location you might
want to look at because it’s involved in narcotics transactions.” The address was a trailer park
and Rodriguez “was given a specific location.” A few days later, approximately seven to eight
unmarked units began surveillance of the mobile home; Rodriguez1 was in one of the units.
Initially, it appeared no one was at the house. After about ninety minutes, a black pickup arrived
at the mobile home; appellant was driving and had one passenger. The two men got out and
went inside the mobile home.
After ten to fifteen minutes, the two men got in the pickup and left. Although they did
not see either man carry anything out or place anything in the pickup, Rodriguez and his
surveillance team began following the men. Rodriguez estimated there were between six to eight
unmarked vehicles following the men. The men drove for about thirty minutes before the pickup
exited the roadway and entered a shopping area. According to Rodriguez, the individuals in the
pickup started making a “heat run,” designed to lose anyone who might be following them. The
driver took the exit, which was normal, but then
started getting into like shopping centers, making u-turns, going into stores, stopping,
going around and not stopping to either go eat or to go into a store to purchase anything.
It was different stops sporadically. The vehicle was going everywhere.
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Rodriguez testified he could not recall who owned the mobile home. The record indicates that, upon execution of a
search warrant at the mobile home, no drugs were found.
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According to Rodriguez, this went on for about ten to fifteen minutes before the pickup was
pulled over by Calderon and Hurd. When asked, Rodriguez said he could not recall if the pickup
slowed down or pulled into a parking space while driving in the parking lots.
Rodriguez watched the traffic stop from a nearby parking lot. When appellant refused to
give consent to search the pickup, Rodriguez was notified and the K-9 unit was called.
Rodriguez said the men were being detained at that point and were not free to leave; they were
not, however, under arrest. When asked specifically whether the K9 unit was called before or
after appellant was pulled over for the traffic violation, Rodriguez responded that they generally
call the unit when they see a vehicle making a “heat run.”
During cross-examination, Rodriguez testified he had no idea where the ICE agent got
the tip on the mobile home and could not remember when the agent passed it on to him. He did
not write down the address the agent gave him and could not recall it. He did not write a report,
although he did review another officer’s report before testifying. He conceded that report did not
mention “heat runs” or the undercover surveillance of the mobile home and that neither he nor
any of the officers there saw appellant or his passenger carry the drugs from the mobile home to
the pickup or otherwise handle the drugs. Rodriguez’s testimony shows appellant stopped at a
mobile home that, according to a “tip” from an ICE agent, was involved in narcotics, was not
seen carrying anything in or out of the home, and was followed for 45 minutes, during which
time he pulled into a shopping center and drove around, pulling in and out of locations.
When the officers decided to detain appellant and the vehicle following the traffic stop,
they knew the vehicle was not reported stolen, the insurance papers were in proper order, and
appellant had a valid license but no outstanding warrants. Appellant’s continued detention for
almost an hour, which the State conceded during oral argument to be a “prolonged detention,”
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appears to have been based on Rodriguez’s testimony that appellant stopped at a mobile home
which was allegedly involved in narcotics, was not seen carrying anything in or out of the home,
and after being followed for thirty minutes by numerous unmarked surveillance cars, pulled into
a shopping center and drove around, pulling in and out of locations, as well as the trial court’s
conclusion that appellant’s refusal to consent to a search gave the officers the reasonable
suspicion needed to further detain him. A refusal to consent, however, cannot alone establish
reasonable suspicion. See Bostick, 501 U.S.at 437; Simpson, 29 S.W.3d at 328. And, after
viewing all the evidence in the record, we conclude Rodriguez’s statements, no more than
inchoate and unparticularized hunches, are insufficient to constitute reasonable suspicion
justifying a prolonged detention. See Simpson, 29 S.W.3d at 328.
Under these facts and circumstances, we conclude the State failed to establish the officers
had reasonable suspicion justifying appellant’s continued detention once the traffic stop had
concluded. The trial court erred by denying appellant’s motion to suppress and admitting the
evidence at trial.
Because a search that offends the Fourth Amendment renders the subsequently
discovered evidence inadmissible as “fruit of the poisonous tree,” the error is constitutional, and
we must reverse the judgment unless we determine beyond a reasonable doubt apply that the
error did not contribute to appellant’s conviction. See Jones v. State, 119 S.W.3d 766, 777
(Tex. Crim. App. 2003); McQuarters, 58 S.W.3d at 258. In this case, there was no confession,
no one testified about selling the cocaine to appellant, and no one saw appellant with the cocaine.
Because the drug evidence found in appellant’s truck was the only evidence at trial establishing
appellant possessed cocaine, we conclude there is a reasonable likelihood the error contributed
directly to appellant’s conviction. We sustain appellant’s first issue to the extent it challenges his
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prolonged detention and the denial of his motion to suppress. We find it unnecessary to address
his second issue. See TEX. R. APP. P. 47.1.
We reverse the trial court’s judgment and remand this case for further proceedings.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120544F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JUVENCIO SAMUEL CARILLO, On Appeal from the Criminal District Court
Appellant No. 2, Dallas County, Texas
Trial Court Cause No. F10-19275-I.
No. 05-12-00544-CR V. Opinion delivered by Justice Bridges.
Justices FitzGerald and Myers participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.
Judgment entered February 4, 2014
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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