Reversed and Remanded; Opinion Filed January 7, 2014 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-12-01627-CR 

THE STATE OF TEXAS, Appellant 

V. 

LUIS LOPEZ, Appellee 

On Appeal from the 194th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F12-59529 

MEMORANDUM OPINION 

Before Justices Bridges, Fillmore, and Lewis 

Opinion by Justice Bridges 

The State of Texas appeals from the trial court’s decision to grant appellee Luis Lopez’s 

motion to suppress. In a single issue, the State argues the trial court erred by granting the motion 

to suppress, because the police did not violate appellee’s rights by asking appellee to exit the car 

for the purpose of conducting an investigation and a Terry frisk. We reverse and remand. 

Background 

 Officer Brandon Stephens of the Dallas Police Department testified he made a traffic stop 

on a silver Dodge Charger at approximately 3:30 a.m. on August 26, 2012. Stephens explained 

he stopped the Charger because it was operating on a public roadway with blue headlights, a 

violation of the transportation code.1

 When he saw the blue lights, Stephens got behind the 

 1

See TEX. TRANSP. CODE ANN. §547.326. 
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Charger and ran the license plate because “[he] knew [he] was going to stop the vehicle.” When 

the license plate came back clear, Stephens activated his emergency equipment. The driver of 

the Charger then pulled to the right-hand lane, traveled two or three blocks, and pulled into the 

driveway of a church. 

 When the car pulled over, Stephens testified he “could see the driver moving around, 

reaching from. . . the backseat back to his left down on the side like reaching toward the map 

pocket.” There were four occupants inside the car. Stephens explained no one else was making 

gestures or movements. 

 Stephens testified that, when he and his partner approached the vehicle, he knew he 

wanted to pull the driver out of the vehicle to “do a pat-down on him and the lounge area around 

him to make sure he wasn’t concealing a weapon.” After he approached the vehicle, Stephens 

identified the driver and obtained his identification to run his name in the police database. He 

also obtained the name of appellee, one of the backseat passengers. Appellee was sitting directly 

behind the driver. Stephens testified appellee was not wearing a seatbelt, and he was prepared to 

issue appellee a citation for the failure to wear a seatbelt.2

 

After he secured the name of the driver and the name provided by appellee, Stephens 

went back to his police car and first ran the driver’s name in the computer. The driver’s name 

came back clear. He then ran the name provided by appellee, but nothing came back on him. 

Stephens explained the fact appellee’s name did not come back could “mean a lot of things.” 

Specifically, he said it could mean appellee was lying or that he did not yet have an I.D. At this 

point, Stephens testified everyone was still inside the Charger, and our review of the dash camera 

 

2

 On cross-examination, Stephens admitted that at the time he saw appellee was not wearing his seatbelt, the car was already parked, 

appellee was sitting in the back seat, and the vehicle was not moving. Stephens conceded there was no violation “as far as [he knew].” 
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video confirms this. Stephens then testified, “After I ran the names, I was going to go back up 

and perform the Terry frisk of the driver and the back left passenger.” (emphasis added). 

Stephens explained he asked the driver if there were any weapons in the car, and the 

driver responded, “not that I know of.” At that point, Stephens explained he was suspicious and 

brought the driver out of the vehicle and conducted a Terry frisk on him. After completing the 

frisk of the driver, Stephens sat the driver on the curb. 

 After Stephens sat the driver on the curb, he stated he “immediately went to the back left 

door of the car, opened the car door, [and] asked [appellee] to step out.” As appellee stepped 

out, he lunged toward the back of the car, but Stephens grabbed onto his shirt and a knife fell to 

the ground beside the car. The knife was the size of a steak knife.3

 Stephens arrested appellee 

for carrying a prohibited weapon and transported him to jail, where drugs were also found on 

appellee. Stephens later learned appellee had not given his true name when asked.4

 Appellee was indicted for the offense of possession of a controlled substance, to wit: 

cocaine in an amount of less than 1 gram. Appellee filed his motion to suppress evidence. After 

hearing the evidence on the motion to suppress, the trial court stated on the record: 

[T]he Court finds that the stopping of the vehicle was indeed proper, given the 

fact that the driver had committed an offense. However, the Court does find that 

there are no specific articulable facts regarding the questioning of [appellee], who 

was a passenger in the rear seat. In this matter, the Court does note the officer 

testified it appeared that the driver made the furtive gestures, but there was no 

testimony with respect to [appellee]. 

The trial court then granted appellee’s motion to suppress. 

Analysis 

 In a single issue, the State contends the trial court erred in granting appellee’s motion to 

suppress when “the police failed to violate appellee’s rights by asking appellee to exit the 

 3

 Our review of the police dash cam video reveals Stephens indicated the knife’s blade was over 6 inches long. 

4

 Our review of the video reveals appellee gave a false name, Ramon Martinez. 
 –4– 

Charger” and when there was “reasonable suspicion for the arresting officer to detain appellee 

temporarily for the purpose of conducting an investigation and ‘Terry Frisk.’” We apply a 

bifurcated standard of review to the trial court’s ruling on a motion to suppress evidence. 

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total 

deference to the trial court’s determination of historical facts and apply a de novo review to the 

trial court’s application of the law to the facts. Id. The trial court is the sole trier of fact, the 

judge of witness credibility, and the weight to be given to witness testimony. Id. The trial 

court’s ruling “will be upheld on appeal if it is correct under any theory of law that finds support 

in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). 

 The Fourth Amendment of the United States Constitution and article I, section 9 of the 

Texas Constitution protect against unreasonable searches and seizures by government officials. 

Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Atkins v. State, 882 S.W.2d 910, 912 

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). Absent a few specifically established and 

well-delineated exceptions, a warrantless search is per se unreasonable. Arizona v. Gant, 556 

U.S. 332, 338 (2009). One of these exceptions is “search incident to arrest.” See Chimel v. 

California, 395 U.S. 752, 763 (1969). “Search of the person becomes lawful [without a warrant] 

when grounds for arrest and accusation have been discovered. . . .” United States v. Robinson, 

414 U.S. 218, 232 (1973); see also Busby v. State, 990 S.W.2d 263, 270 (Tex. Crim. App. 1999) 

(once a suspect is validly arrested, he may be properly searched incident to the arrest). 

 The State provided the dash camera video to the trial court, which is also a part of our 

record. The video shows Stephens approached the vehicle, asked for the occupants’ names, and 

then returned to his vehicle to run the names through the police database. Stephens testified he 

decided to conduct a Terry frisk on appellee after he ran his name through the database and 
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nothing came back. Appellee argues the decision to conduct a Terry frisk of him at that point 

was improper. 

 But Stephens never conducted a Terry frisk of appellee. Instead, after running the names 

through the database, Stephens returned to the car and frisked the driver. After completing the 

frisk of the driver, he then opened the back passenger door and asked appellee to step out of the 

vehicle. We conclude it was proper for Stephens to ask appellee to step out of the car. See 

Maryland v. Wilson, 519 U.S. 408, 410 (1997) (police officer may order passenger to exit vehicle 

as a matter of course). When asked to step out of the vehicle, appellee attempted to run. At that 

point, the knife he was concealing fell to the ground. Our review of the video shows that, after 

Stephens and another officer had handcuffed appellee, Stephens indicated he would be arresting 

appellee for carrying a prohibited weapon. Appellee was then placed in the back of the police 

car. After appellee was transported to jail, he was searched and, only then, were the drugs at 

issue found on his person. 

At the hearing on the motion to suppress, the trial court first found the stop of the vehicle 

was proper, and we agree with the trial court’s conclusion.5

 The trial court also found there were 

no specific articulable facts regarding the questioning of appellee, who was a passenger in the 

rear seat, and no evidence of furtive gestures by appellee to justify a Terry frisk. Here, however, 

no Terry frisk of appellee took place. We conclude the evidence at issue here was properly 

obtained under a search incident to arrest and, therefore, the trial court improperly granted 

appellee’s motion to suppress. See Busby v. State, 990 S.W.2d at 270. 

 

 5

 We conclude Stephens had reasonable suspicion that a traffic offense had been committed, and thus the stop was proper. See TEX. TRANSP.

CODE ANN. §547.326. 
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We reverse the trial court’s order granting appellee’s motion to suppress and remand this 

cause for further proceedings. 

Do Not Publish 

TEX. R. APP. P. 47 

121627F.U05 

 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

THE STATE OF TEXAS, Appellant 

No. 05-12-01627-CR V. 

LUIS LOPEZ, Appellee 

 On Appeal from the 194th Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. F12-59529. 

Opinion delivered by Justice Bridges. 

Justices Fillmore and Lewis participating. 

 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 this January 7, 2014 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE