State v. Raymond Soto ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-19-00427-CR, 04-19-00428-CR & 04-19-00429-CR
The STATE of Texas,
Appellant
v.
Raymond Corey SOTO,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2018-CR-9018, 2018-CR-9019 & 2018-CR-9020
Honorable Velia J. Meza, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: October 28, 2020
AFFIRMED
The State of Texas appeals the portion of the trial court’s order suppressing statements
made by Raymond Soto and physical evidence seized from his home after he invoked his right to
counsel. We affirm the portion of the trial court’s order granting Soto’s motion to suppress.
BACKGROUND
The following undisputed facts were developed at the suppression hearing through the
testimony of the responding officer and admission of his bodycam video. On June 27, 2017, the
apartment manager of a complex located at 7600 Blanco Road in Bexar County, Texas called the
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police and reported that packages smelling of marijuana had been delivered to the office. San
Antonio Police Officer Joe Warren responded to the call. He personally observed that the packages
had the odor of marijuana and were mailed from California and Colorado, states where marijuana
is legal. The manager informed Officer Warren that Soto, a resident, had previously attempted to
retrieve the packages but permission was denied because, even though the address matched Soto’s
apartment address, the recipients’ names did not match Soto’s name. Soto had asked for the
packages under the names of the recipients, but under the management’s policy a person was not
permitted to pick up packages not addressed in his or her name. Officer Warren confirmed that
Soto was the only person listed on the apartment lease.
Officer Warren contacted the SAPD Narcotics Division and Detective Chad Ripley arrived
shortly thereafter. Officer Warren testified that Detective Ripley 1 also observed the odor of
marijuana coming from the packages. Detective Ripley instructed the apartment manager to
contact Soto and tell him he could come pick up the packages. After Soto retrieved the packages,
he was stopped by Detective Ripley outside his apartment. The video shows that, when asked why
he was picking up packages addressed to other people, Soto first claimed not to know the recipients
but then stated they were his “co-workers” or “buddies.” When asked what business his buddies
were in, Soto replied, “alarms and cameras.” Detective Ripley then asked Soto if it was “ok to
open the packages?” Soto responded, “It’s not mine to open, sir.” Detective Ripley proceeded to
open one of the packages and discovered it contained marijuana. Soto was immediately placed in
handcuffs and informed he was under arrest for being in possession of the marijuana.
1
Detective Ripley was unavailable to testify at the suppression hearing.
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During the ensuing search of Soto’s person incident to his arrest, Detective Ripley found a
large amount of cash in Soto’s pockets and wallet. The following exchange occurred as the search
continued:
Soto: Can I call my lawyer, sir?
Det. Ripley: Well — you can do that — if I take you to jail. You will be given a
phone call at that time. That’s just how the procedure works so — we don’t stop
and I give you a phone and say “Call him right now.” That’s not how it goes. But
yes, you get a call.
These statements are recorded at the 6:07 time marker on Officer Warren’s bodycam video, which
was admitted as State’s Exhibit No. 4. Detective Ripley then expressed his belief that he had
probable cause to search Soto’s apartment and asked if he had “anything illegal” in the apartment.
Soto replied that he had several weapons and described them. Soto denied that he was a convicted
felon and Detective Ripley stated it was not illegal for him to have the weapons if that proved true.
Detective Ripley then read Soto his Miranda rights. Soto verbally acknowledged that he
understood his rights.
After giving Soto the Miranda warning, Detective Ripley continued questioning Soto about
what he would find inside his apartment. Soto answered the detective’s questions by making
several incriminating statements, admitting that he “smokes a lot of weed,” and had “some hash
oil” and other forms of marijuana inside his apartment. Soto declined to answer when Detective
Ripley asked whether he had any “hard stuff” like cocaine or methamphetamine in his apartment.
Soto eventually answered that he “did not do meth,” and shook his head in the negative about
having cocaine. Detective Ripley repeated that he intended to search Soto’s apartment and
explained that Soto had two choices — either give consent to the search or require the detective to
obtain a search warrant. Soto replied that Detective Ripley should get a search warrant. Detective
Ripley subsequently obtained a search warrant based in part on Soto’s admissions. Pursuant to the
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search, the police seized 831.723 grams of Delta 9 Tetrahydrocannabinol (a form of marijuana),
19.259 grams of Cocaine, three firearms, and $14,000 in cash.
Soto was indicted in three separate cases for: possession of and possession with intent to
deliver a Penalty Group 1 controlled substance in an amount between 4 grams and 200 grams;
possession of and possession with intent to deliver a Penalty Group 2 controlled substance in an
amount between 4 grams and 400 grams; and possession of marijuana in an amount between 4
ounces and 5 pounds. The three cases were consolidated in the trial court.
Soto filed a pretrial motion to suppress all statements made and physical evidence seized.
A few days after the conclusion of the suppression hearing, the trial court made verbal findings of
fact and conclusions of law on the record. As to the evidence seized from the packages, the trial
court found that Soto expressly denied any ownership interest in the packages and their contents.
The court therefore concluded that as a matter of law Soto had no expectation of privacy in the
packages to trigger the Fourth Amendment’s protection and the evidence recovered from the
packages was admissible. As to the admissibility of Soto’s incriminating statements and the
evidence seized from his apartment pursuant to the search warrant, the trial court found that Soto’s
request, “Can I call a [my] lawyer?” was made after he was arrested and in custody. The trial court
concluded that under the totality of the circumstances Soto’s request to call a lawyer was not part
of a casual conversation with the detective, but rather was “a clear invocation of his right to Fifth
Amendment counsel to have a lawyer present during interrogation, a custodial interrogation.” The
trial court therefore ruled that all of Soto’s statements made after his request for counsel were
inadmissible and all of the evidence seized from his apartment under the search warrant based on
his admissions was similarly inadmissible. Based on its findings of fact and conclusions of law,
the trial court denied Soto’s motion to suppress in part as to the evidence contained in the packages
and granted the motion in part as to all the evidence seized from his apartment and the
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incriminating statements made after Soto’s invocation of his right to counsel. The State appealed
the portion of the order granting Soto’s motion to suppress.
MOTION TO SUPPRESS
On appeal, the State argues the trial court’s suppression order must be reversed because the
totality of the circumstances show Soto did not clearly, unequivocally, and unambiguously assert
his right to counsel under the applicable law. The State does not dispute that Soto was under
custodial interrogation at the time he asked, “Can I call my lawyer?”
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard,
reviewing fact-findings for an abuse of discretion and applications of law de novo. State v. Ruiz,
581 S.W.3d 782, 785 (Tex. Crim. App. 2019); State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim.
App. 2017). We afford almost total deference to the trial court’s determination of historical facts,
especially when it is based on assessment of a witness’s credibility, as long as the fact-findings are
supported by the record. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the same deferential standard when
reviewing the court’s ruling on mixed questions of law and fact where resolution of those issues
turns on an evaluation of credibility. Johnson, 414 S.W.3d at 192. We review de novo the trial
court’s application of the law to the facts and its resolution of mixed questions of law and fact that
do not depend upon credibility assessments. Id.; Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim.
App. 2013). We view the record in the light most favorable to the trial court’s determination and
will reverse its ruling only if it was arbitrary, unreasonable, or “outside the zone of reasonable
disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
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Invocation of the Right to Counsel
Under the Fifth Amendment, an accused has the right to consult with an attorney and to
have an attorney present during a custodial interrogation and the police must explain this right to
the accused before questioning begins. U.S. CONST. amend. V; Edwards v. Arizona, 451 U.S. 477,
482 (1981); Miranda v. Arizona, 384 U.S. 436, 469-73 (1966). The right to counsel during
custodial interrogation was created as a procedural safeguard to “insure that the right against
compulsory self-incrimination was protected.” Michigan v. Tucker, 417 U.S. 433, 444 (1973).
“[O]nce a defendant in custody asks to speak with a lawyer, all interrogation must cease until a
lawyer is present.” Rhode Island v. Innis, 446 U.S. 291, 293 (1980) (citing Miranda v. Arizona,
384 U.S. 436, 474 (1966)). After an accused has invoked his right to counsel, police questioning
must immediately stop until either counsel has been made available or the accused himself
reinitiates further communications with the police. Edwards 451 U.S. at 484-85; Minnick v.
Mississippi, 498 U.S. 146, 153 (1990); State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App.
2009).
The accused’s mere mention of the word “attorney” or “lawyer” does not automatically
invoke the right to have counsel present during questioning; rather, an accused’s request for
counsel must be unequivocal and unambiguous. Davis v. United States, 512 U.S. 452, 459 (1994);
Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995). At a minimum, Davis requires
that a suspect express a definite desire to speak to an attorney. Dinkins, 894 S.W.2d at 351; Lucas
v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989) (“The right to counsel is considered invoked
where a person indicates he or she desires to speak to an attorney or have an attorney present during
questioning.”). Courts determine whether a suspect’s statement referring to a lawyer constitutes
an actual invocation of the right to counsel by considering the statement itself and the totality of
the circumstances surrounding the statement. Gobert, 275 S.W.3d at 892; Dinkins, 894 S.W.2d at
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351. The inquiry is an objective one: whether the accused articulated his desire for the assistance
of counsel sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney. Davis, 512 U.S. at 458-59; Gobert, 275
S.W.3d at 892-93; Dinkins, 894 S.W.2d at 351.
Application of the Law to the Facts
Here, the trial court assessed Soto’s demeanor and tone of voice on the bodycam video
when he asked, “Can I call my lawyer, sir?” within the context of the surrounding circumstances.
The trial court found that Soto did not refer to calling his lawyer as part of “a casual conversation”
or “casual encounter,” but instead expressed a clear desire to speak to his lawyer at that time. The
trial court concluded that, under the applicable law, Soto’s request, “Can I call my lawyer, sir?”
was a clear invocation of his right to counsel, Detective Ripley’s questioning should have ceased
at that moment, and any evidence obtained thereafter was inadmissible.
The State argues that under Davis and applicable Texas precedent, Soto did not make an
unequivocal and unambiguous invocation of his right to counsel. The State suggests Soto’s
question, “Can I call my lawyer?” is substantially similar to the statements “Maybe I should talk
to a lawyer” in Davis and “Maybe I should talk to someone” in Dinkins, which did not constitute
clear invocations. See Davis, 512 U.S. at 462 (holding suspect’s statement “Maybe I should talk
to a lawyer” during the interrogation was too equivocal to express a clear desire for the assistance
of counsel at that time); see also Dinkins, 894 S.W.2d at 352 (holding “Maybe I should talk to
someone” failed to specify that the suspect wished to speak with a lawyer and the statement was
therefore too ambiguous to constitute an invocation of counsel). Here, Soto did not equivocate in
his desire to call his lawyer by prefacing the request with “maybe” and he was not vague about
who he wished to call.
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The State also relies on several cases from this court, as well as cases from our sister courts.
But, the language used and the circumstances surrounding the suspects’ alleged invocations of the
right to counsel in those cases are distinguishable. In Flores v. State, we held that the suspect’s
question, “Will you allow me to speak to my attorney before?” was neither a clear nor unequivocal
assertion of the suspect’s desire to have an attorney present where the surrounding circumstances
reflected the suspect’s indecisiveness. Flores v. State, 30 S.W.3d 29, 34 (Tex. App.—San Antonio
2000, pet. ref’d). In response to Flores’s question about speaking to an attorney, the officer
responded that “he could call his attorney if he wanted,” but instead of making the call Flores
continued explaining what had occurred and voluntarily went to the police station to give a
statement without ever calling an attorney. Id. Similarly, in Hernandez v. State, we held that the
statement, “I might want to talk to my lawyer first” was not an unequivocal invocation of the right
to counsel where the suspect followed that statement with a question to the officer asking what
was going to happen to him and continued explaining what happened during the incident under
investigation. Hernandez v. State, No. 04-01-00271-CR, 2002 WL 461374, at *3 (Tex. App.—
San Antonio Mar. 27, 2002, no pet.) (mem. op., not designated for publication) (holding the
statement was not a direct request for counsel under Davis). In Lemmons v. State, we held the
suspect’s statements during interrogation that, “I’m done for the evening sir, please . . . If you all
would like to talk tomorrow or something, I would be more than willing to talk. But for the evening
or until I can get a lawyer . . .” was not an unequivocal assertion of his right to counsel. Lemmons
v. State, 75 S.W.3d 513, 518-20 (Tex. App.—San Antonio 2002, pet. ref’d) (emphasis added)
(stressing that use of the word “or” made the request conditional and equivocal). Here, Soto never
declined a chance to call his lawyer or cease the interrogation and obtain counsel, and did not
initiate a dialogue with Detective Ripley by asking his own questions or volunteering his version
of events.
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The other cases cited by the State are similarly distinguishable from Soto’s case. See, e.g.,
Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(suspect’s question “Can I have him [my attorney] present now?” was not an unambiguous
invocation of the right to counsel where he subsequently stated he did not want counsel present if
it would end the questioning); Mbugua v. State, 312 S.W.3d 657, 665 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d) (“Can I wait until my lawyer gets here?” was not an unqualified and
unambiguous assertion of the right to counsel); Halbrook v. State, 31 S.W.3d 301, 302-04 (Tex.
App.—Fort Worth 2000, pet. ref’d) (suspect’s question “Do I get an opportunity to have my
attorney present?” was not a clear, unambiguous assertion of a desire for counsel); State v. Norris,
541 S.W.3d 862, 865-67 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (“Well, give me a
lawyer or something because I’m sure I have” and “I just want to make a phone call and call my
sister and see if she could go get me a lawyer or something …” were not unambiguous and
unequivocal requests for counsel); Dalton v. State, 248 S.W.3d 866, 873 (Tex. App.—Austin 2008,
pet. ref’d) (asking the officer to ask or tell his friends to get the suspect a lawyer was not a clear
invocation of the right to counsel); Molina v. State, 450 S.W.3d 540, 547 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (“If I’m getting blamed for something like that . . . I’m going to just go
ahead and call my lawyer” was not an unambiguous invocation of the right to counsel).
The State asserts that Detective Ripley’s reply “if I take you to jail” indicates he interpreted
Soto’s question as a reasonable officer would — as inquiring “whether an opportunity to call a
lawyer existed.” We disagree that such an interpretation is reasonable based on Soto’s words and
the surrounding circumstances. 2 Detective Ripley had just informed Soto he was under arrest for
2
The trial court made a fact finding that when “Mr. Soto asked if he could call a lawyer . . . Ripley answered, while
he kind of chuckled, laughed at it, [and said] Yes, but not right now.” The trial court stated on the record that the right
to counsel is “an individual right that is afforded to every single citizen that an officer cannot gloss over or decide at
what point that right applies,” and noted that Ripley was a seasoned detective who “should have known better.”
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possession of the marijuana inside the opened packages and had handcuffed him with his hands
behind his back. Soto said, “Can I call my lawyer, sir” while Detective Ripley was in the process
of searching Soto’s person incident to the arrest. Soto was in custody and was being questioned
by Detective Ripley when he requested to call his lawyer. Based on the language and the totality
of the circumstances, we conclude Soto’s explicit request, “Can I call my lawyer, sir” clearly
expressed a definite desire to “speak with a lawyer” at that time. See Innis, 446 U.S. at 293; see
also Dinkins, 894 S.W.2d at 351. In Jamail v. State, even though the court held Jamail
subsequently waived his right to counsel, it characterized his statement, “Now it’s time for me to
call my lawyer” as a clear, unequivocal request for counsel. Jamail v. State, 787 S.W.2d 372, 374-
5 (Tex. Crim. App. 1990) (per curiam) (based on assumption that suspect was under custodial
interrogation at time of his statement).
Finally, the State argues the clarity of Soto’s alleged invocation is undermined by the fact
that Soto continued answering Detective Ripley’s questions after he asked to call his lawyer. An
accused’s subsequent responses to continued police interrogation may not be used as part of the
“totality of the circumstances” to determine in retrospect whether he “really meant” to invoke the
right to counsel in a previous statement. Gobert, 275 S.W.3d at 893. “[u]nder the clear logical
force of settled precedent, an accused’s postrequest responses to further interrogation may not be
used to cast retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois, 469
U.S. 91, 100 (1984).
Viewing Soto’s explicit request “Can I call my lawyer, sir” within the totality of the
circumstances leading up to the request, we conclude that Soto unambiguously and unequivocally
invoked his right to counsel and Detective Ripley therefore had a duty to terminate the
interrogation at that time. See Davis, 512 U.S. at 459; see also Gobert, 275 S.W.3d at 892. We
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hold that the trial court properly granted Soto’s motion to suppress with respect to his statements
and the evidence seized after he invoked his right to counsel.
CONCLUSION
Based on the foregoing reasons, we affirm the challenged portion of the trial court’s order
suppressing Soto’s incriminating statements and the evidence seized from his apartment pursuant
to the search warrant.
Liza A. Rodriguez, Justice
DO NOT PUBLISH
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