Donald Chimaobi Okoro v. State ( 2020 )

NUMBERS 13-18-00587-CR, 13-18-00593-CR,
AND 13-18-00594-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DONALD CHIMAOBI OKORO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 369th District Court
of Leon County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Hinojosa
Following a guilty plea, appellant Donald Chimaobi Okoro appeals his convictions
for one count of possession of 400 grams or more of Alprazolam (Xanax), a first-degree
felony; one count of possession of 400 grams or more of an opioid identified as U-47700,
also a first-degree felony; and one count of possession of four grams or more but less
than 200 grams of methamphetamine, a second-degree felony. See TEX. HEALTH &
SAFETY CODE ANN. §§ 481.102, 481.104, 481.115, 481.117. By one issue, Okoro argues
that the trial court erred in denying his motion to suppress evidence obtained from a traffic
stop because law enforcement officers unconstitutionally detained him longer than
necessary. We affirm.
I. BACKGROUND 1
Okoro was indicted on three counts of possession of a controlled substance. See
id. Okoro filed a pretrial motion to suppress evidence obtained following his traffic stop,
alleging that his stop was unlawfully prolonged. The trial court held a hearing on Okoro’s
motion to suppress. Only one witness, Trooper Joel Smith of the Texas Department of
Public Safety, testified.
Smith testified that on August 17, 2017, Okoro was driving a Toyota Avalon
southbound on Interstate Highway 45 at eighty miles per hour, which was five miles per
hour over the speed limit. Smith, a K-9 Officer, signaled his lights to pull the vehicle over.
Smith noticed that, after Okoro pulled onto the improved shoulder, the vehicle slowly
rolled more than twenty seconds before it came to a complete stop. The total time from
the moment the lights were flashed until the vehicle stopped was forty-two seconds. This
raised Smith’s suspicion because in his experience as a seven-year trooper who makes
approximately one to two thousand stops a year, a suspect taking a long time to stop for
police after being pulled over can indicate criminal activity. He testified, for example, that
1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2
it can give someone the opportunity to hide a gun or drugs, or it can give two people
opportunity to collaborate a story.
Smith stated that he approached the vehicle on the passenger side to talk to the
driver, Okoro. 2 Smith noticed that the passenger, Bobbie Clarence Hampton, stayed on
his phone. Smith asked Okoro some basic questions and got a “weird vibe from the
passenger” based on his body language. According to Smith, Hampton gave him a blank
stare, never said anything, and never got off his phone. Smith asked the men where they
were going—one mentioned they were musicians “recording” in Dallas and the other
mentioned a live performance. Smith noticed more than two cell phones in the car. Smith
asked Okoro to get out of the car and accompany him to the trooper vehicle. He told
Okoro that he would issue him a warning if he could verify insurance. As they were
walking to the vehicle, Smith claimed that Okoro’s “total demeanor change[d]” when he
saw Smith’s K-9 Maya in the back seat of his vehicle. The men entered the vehicle.
Smith verified that the vehicle was insured. He also checked Okoro’s criminal
history and learned that Okoro “was a convicted felon, he had some misdemeanors, and
he had a current open felony in another county.” At about this time, Smith texted his
partner for backup.
Okoro asked to get out of the trooper vehicle. The trooper agreed but asked to frisk
Okoro for weapons. Okoro agreed. Upon conducting this frisk, Smith found approximately
$1,000 in cash and another cell phone. Smith maintained a conversation with Okoro as
they walked back to Okoro’s car, asking about his shoes and music. He learned that the
2 The trooper explained that approaching on the passenger side is safer, as the vehicles were
pulled over on a busy interstate highway.
3
passenger, Hampton, rented the vehicle and that the men were on their way from Houston
to Dallas, which Smith declared were “two major drug hubs.” Smith also said that, in his
experience, criminals often rented vehicles to avoid having their personal vehicles
become impounded in the event of an arrest.
Smith asked for consent to search Okoro’s vehicle. Okoro refused. The trooper
said that the long amount of time it took Okoro to stop the vehicle, the passenger’s body
language, the multiple cell phones, Okoro’s reaction to the dog, Okoro’s prior criminal
history, and the conflicting stories were some articulable facts that raised his suspicion
that there was criminal activity afoot. When Smith’s partner, Trooper Mike Asby, arrived
approximately fourteen minutes after Okoro was first pulled over, Smith conducted an
open-air sniff test with his K-9 Maya. Smith testified that he waited to conduct this test
until his partner arrived for officer safety reasons. Maya alerted the troopers to possible
contraband. Upon searching the vehicle, the officers found fifty-four pounds of Xanax
bars, thirteen pounds of counterfeit hydrocodone, forty-five grams of counterfeit
oxycodone, and five grams of methamphetamine.
In the hearing on the motion to suppress, Okoro explained that he became startled
in the car because he did not expect to see a dog. He also argued that after Smith had
verified insurance, the trooper should have allowed the men to leave. He claimed that
Smith’s fourteen-minute detention violated Fourth Amendment principles against unlawful
searches and seizures. Okoro asserted that Smith “prolonged the detention of Mr. Okoro
for a substantial and unreasonable amount of time with no specific, articulable facts
demonstrating a reasonable suspicion of any illegal activity, based only on inchoate
4
feelings and hunches.” The trial court denied Okoro’s motion to suppress and issued the
following findings of fact in support of its decision:
3. During Trooper Smith’s investigation into the traffic violation, he
developed reasonable suspicion that the Defendants may be involved in
other criminal activity. Okoro took approximately 42 seconds to come to
a complete stop. He also testified that Defendants gave conflicting
stories about the purpose of the trip and where the Defendants would
be staying once they arrived in Dallas. The car was a third-party rental,
which trooper Smith stated is common for drug traffickers. Trooper Smith
testified that he noticed multiple cell phones in the car, including a burner
phone. Defendants had criminal histories involving illegal drugs.
4. Trooper Smith requested additional officers to the scene for officer
safety due to his reasonable suspicion that the defendants were involved
in further criminal activity and the physical size of defendants compared
to the size of Trooper Smith.
5. Trooper Smith waited for backup before asking the defendant for
consent to search the vehicle. When the Defendant denied consent to
search the car, trooper Smith informed the Defendant that he would
have his K-9 perform an open-air sniff of the vehicle.
6. The delay from the time Trooper Smith gathered all the necessary
information to conclude the traffic violation and the time when Trooper
Smith was able to perform the open[-]air sniff was approximately 14
minutes.
7. During the open[-]air sniff around the vehicle, the K-9 alerted to the
presence of contraband. The officers searched the vehicle and
controlled substances were found.
In addition, the court also made the following conclusions of law with respect to
its decision to deny the motion to suppress:
The Court finds that on August 17, 2017, the Defendants were detained by
the Texas Department of Public Safety beyond the investigation into the
traffic stop. However, if an officer develops reasonable suspicion, the
detention does not violate the United States and Texas Constitutions.
5
An open[-]air search by a drug detecting dog is not considered a search.
According to his testimony, Trooper Smith did not utilize his K-9 earlier
because he was waiting for backup for officer safety.
Considering all of the factors, the Court denies the Motion to Suppress,
finding the totality of the circumstances establish objective reasonable
suspicion for the 14[-]minute detention.
Okoro pleaded guilty to one count of possession of 400 grams or more of
Alprazolam (Xanax), one count of possession of 400 grams or more of an opioid identified
as U-47700, and one count of possession of four grams or more but less than 200 grams
of methamphetamine. 3 See id. §§ 481.115, 481.117. Pursuant to a plea agreement, the
trial court sentenced him to thirty years for the first-degree felonies of possession of
Alprazolam and U-47700, and twenty years for the second-degree felony of
methamphetamine possession, to be served concurrently. The trial court also certified
Okoro’s right to appeal the motion to suppress ruling. See TEX. CODE CRIM. PROC. ANN.
art. 44.02. Okoro appeals.
II. STANDARD OF REVIEW & APPLICABLE LAW
A. Standard of Review
We review a trial judge’s ruling on a motion to suppress under a bifurcated
standard of review. Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). First,
we afford almost total deference to a trial judge’s determination of historical facts. Id. The
trial court is the sole trier of fact and judge of the witnesses’ credibility and the weight to
3 The parties agreed to consolidate all three charges into one case for the purposes of appeal. Trial
court cause number 17-0203CR is appellate cause number 13-18-00587-CR; trial court cause number 17-
0204CR is appellate cause number 13-18-00593-CR; and trial court cause number 17-0205CR is appellate
cause number 13-18-00594-CR.
6
be given to their testimony. Id. Second, we review a judge’s application of the law to the
facts de novo. Id. We will sustain the judge’s ruling if the record reasonably supports that
ruling and is correct on any theory of law applicable to the case. Id.
When the trial judge makes explicit findings of fact, as she did here, we afford
those findings almost total deference so long as the record supports them, regardless of
whether the motion to suppress was granted or denied. State v. Castleberry, 332 S.W.3d
460, 465 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to the “the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
We afford the same amount of deference to the trial judge’s rulings on mixed questions
of law and fact, if those rulings turned on an evaluation of credibility and
demeanor. Castleberry, 332 S.W.3d at 465.
B. Applicable Law
Courts have determined that there are three distinct types of interactions between
police and citizens: (1) consensual encounters, which require no objective justification;
(2) investigatory detentions, which require reasonable suspicion; and (3) arrests, which
require probable cause. Id. at 466. An encounter is no longer consensual when an officer,
through physical force or a showing of authority, has restrained a citizen’s liberty. Id.
Under the Fourth Amendment, a warrantless detention of the person that amounts
to less than a full-blown custodial arrest must be justified by reasonable
suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This
standard is an objective one that disregards the actual subjective intent of the arresting
7
officer and looks, instead, to whether there was an objectively justifiable basis for the
detention. Id. It also looks at the totality of the circumstances. Id. Circumstances may
seem innocent enough in isolation, but an investigative detention may be justified if the
combination of factors suggests the imminence of criminal conduct. Id. “[T]he relevant
inquiry is not whether particular conduct is innocent or criminal, but the degree of
suspicion that attaches to particular non-criminal acts.” Woods v. State, 956 S.W.2d 33,
38 (Tex. Crim. App. 1997). Moreover, the detaining officer need not be personally aware
of every fact that objectively supports a reasonable suspicion to detain; rather, “the
cumulative information known to the cooperating officers at the time of the stop is to be
considered in determining whether reasonable suspicion exists.” Derichsweiler, 348
S.W.3d at 914 (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)).
During a traffic stop, once the computer check is completed, and the officer knows
that the driver has a current valid license, no outstanding warrants, and the car is not
stolen, the traffic stop investigation is fully resolved. Lerma v. State, 543 S.W.3d 184, 191
(Tex. Crim. App. 2018). “However, if an officer develops reasonable suspicion that the
driver or an occupant of the vehicle is involved in criminal activity, the officer may continue
questioning the individual regardless of whether the official tasks of a traffic stop have
come to an end.” Id.; see Ramirez-Tamayo v. State, 537 S.W.3d 29, 39 (Tex. Crim. App.
2017).
III. ANALYSIS
Here, we must give almost total deference to the trial court’s findings of fact if the
record supports them. See Castleberry, 332 S.W.3d at 465. The trial court heard evidence
8
that: (1) Okoro took approximately forty-two seconds to come to a complete stop; (2)
Okoro and his passenger gave conflicting stories about the purpose of the trip; (3) the car
Okoro drove was a rental, which Trooper Smith explained was common among criminals
in the drug trade; (4) there were multiple cell phones in the car, including a burner phone;
and (5) Okoro had a criminal history involving illegal drugs. There was also testimony that
Okoro appeared nervous at the sight of the drug-sniffing K-9 dog Maya.
Although the stop may have been longer than usual, the court recognized that
“Trooper Smith requested additional officers to the scene for officer safety due to his
reasonable suspicion that the defendants were involved in further criminal activity and the
physical size of defendants compared to the size of Trooper Smith.” Under our review,
the State is entitled to the “the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from that evidence.” Garcia-Cantu, 253 S.W.3d at 241. In
light of the foregoing facts, we conclude that the cumulative information known to Trooper
Smith indicated that reasonable suspicion existed which justified prolonging the detention
for further investigation. See Lerma, 543 S.W.3d at 191; Derichsweiler, 348 S.W.3d at
914. Based on the totality of circumstances, Trooper Smith had reasonable suspicion that
Okoro was involved in criminal activity, allowing him to continue his stop past the initial
traffic stop investigation. See Lerma, 543 S.W.3d at 191; Ramirez-Tamayo v. State, 537
S.W.3d at 39.
We overrule Okoro’s sole issue.
9
IV. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of April, 2020.
10