Peo v. Alvarez Velasquez

23CA1010 Peo v Alvarez Velasquez 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1010
El Paso County District Court No. 22CR885
Honorable Robin Chittum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jesus Alvarez Velasquez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LUM
Lipinsky and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Carrie E. Skahan, Alternate Defense Counsel, Colorado Springs, Colorado, for
Defendant-Appellant
¶1 Defendant, Jesus Alvarez Velasquez, appeals his convictions

for various illegal drug and vehicular offenses. We affirm.

I. Background

¶2 While initiating a traffic stop, Officer Logan Scheppele

suspected that the vehicle’s driver, Alvarez Velasquez, possessed

illegal drugs. For this reason, Scheppele spent two to three minutes

calling for a K-9 officer to conduct a dog sniff around the vehicle.

¶3 After the call, Scheppele instructed Denise Pennington, who

was then a police academy recruit, on preparing a traffic citation.

Pennington began writing the citation, and as she finished it, the

K-9 officer arrived with the dog, which alerted to the presence of

illegal narcotics.1 Officers detained Alvarez Velasquez at the scene.

While walking toward the vehicle, Scheppele spotted on the

pavement outside the driver’s door a white plastic bag tied into a

knot. The bag contained an off-white crystalline substance that

Scheppele suspected was methamphetamine. The

methamphetamine was later found to weigh about three grams.

Officers also discovered about twelve grams of methamphetamine in

1 The dog was not certified or trained to alert to the presence of

marijuana. See People v. McKnight, 2019 CO 36, ¶ 55.

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Alvarez Velasquez’s pocket. A vehicle search uncovered around

twenty-seven grams of methamphetamine, drug paraphernalia, and

a loaded semiautomatic handgun.

¶4 Alvarez Velasquez was charged with possession with intent to

manufacture or distribute a controlled substance (possession with

intent), possession of drug paraphernalia, possession of a weapon

by a previous offender (POWPO), displaying fictitious or altered

license plates, unregistered vehicle, and failure to signal for a turn.

¶5 The jury acquitted Alvarez Velasquez of possession with intent

and POWPO. However, it convicted him of possession of a

controlled substance (a lesser included offense of possession with

intent), possession of drug paraphernalia, and the vehicular

offenses. The court sentenced him to two years of probation.

¶6 Alvarez Velasquez appeals. He asserts that the district court

erred by denying his pretrial motion to suppress the evidence seized

after the dog sniff. He also contends that the prosecutor committed

misconduct during voir dire by implicating Alvarez Velasquez’s right

to remain silent and improperly educating prospective jurors about

the prosecution’s theory of the case. Lastly, he asserts that reversal

is required under the cumulative error doctrine.

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II. Motion to Suppress

A. Applicable Facts

¶7 Before trial, Alvarez Velasquez moved to suppress all evidence

found after the dog sniff. He argued then, as he does here, that

Scheppele unconstitutionally prolonged the traffic stop to conduct

the dog sniff and subsequent search.

¶8 The district court held a hearing on the motion. The following

facts (1) are undisputed by the parties; (2) were found by the district

court and supported by the record; or (3) are based on our review of

Scheppele’s body camera footage.

¶9 While on patrol with Pennington in an area near two hotels

that Scheppele described as having “a lot of narcotic activity,”

Scheppele followed a Honda driven by Alvarez Velasquez.

Scheppele observed that the Honda had windows tinted more darkly

than was permissible, “fictitious license plates that came back to a

different style vehicle,” and failed to signal at two turns. Scheppele

observed the Honda pull into the parking lot of one of the two hotels

and initiated a traffic stop for the turn signal failure, license plates,

and window tint.

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¶ 10 Scheppele approached the vehicle and began explaining the

reasons for the stop. Scheppele’s bodycam footage shows that

Alvarez Velasquez immediately disputed (and continued to dispute)

the window tint violation and partially tore the tint off the driver’s

side window. He also disputed that he failed to signal. Finally,

Alvarez Velasquez said that he didn’t know about the fictious plates

because the vehicle was owned by his mother, not him. When

asked for registration and insurance, Alvarez Velasquez glanced

quickly at the passenger side of the car but didn’t attempt to open

the glove box or center console, again explaining that his mother

owned the vehicle. Alvarez Velasquez was nervous and somewhat

argumentative, but he didn’t raise his voice during this initial

encounter.

¶ 11 Scheppele testified that, based on his training and experience,

the dark window tint was “effectively put on for the purpose of

obscuring view inside of the vehicle,” as the tint “makes it easier for

somebody to conceal an object, which is done when people are

distributing narcotics.” Because of the tint and the other facts

described above, Scheppele said that “everything [was] showing that

[Alvarez Velasquez] [was] evasive for something that’s inside” the

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car, which led him to believe that Alvarez Velasquez had illegal

drugs.

¶ 12 After the initial encounter, Scheppele returned to his patrol

car and called for a K-9 officer to conduct an open-air dog sniff

around the Honda. The call took approximately two to three

minutes, during which time Scheppele did not perform other

activities. While waiting for the K-9 officer, Scheppele instructed

Pennington to write the ticket. Because Pennington was still a

recruit, it took her more than thirteen minutes to type the citation.

¶ 13 The K-9 officer and his dog arrived while Pennington was

writing the ticket. The officer walked the dog around the car, and

the dog indicated the presence of narcotics.

¶ 14 The district court found Scheppele’s testimony credible.

Though it noted that the case presented a close call, the court

denied Alvarez Velasquez’s motion to suppress because it concluded

that (1) Scheppele did not divert from the traffic stop by calling for

the K-9 officer; and (2) even if there had been a diversion, Scheppele

had reasonable suspicion of other criminal activity to prolong the

traffic stop for the dog sniff.

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B. Standard of Review and Applicable Law

¶ 15 “A trial court’s suppression order presents a mixed question of

fact and law.” People v. Gamboa-Jimenez, 2022 COA 10, ¶ 35. “We

defer to the court’s factual findings if they are supported by

competent evidence in the record, but we assess the legal

significance of those facts de novo.” Id. However, we may also rely

on undisputed facts in the record, and we may independently

review any portion of the challenged incident that was audio or

video recorded. People v. Willoughby, 2023 CO 10, ¶ 18; see also

People v. Taylor, 2018 CO 35, ¶ 7.

¶ 16 “The Fourth Amendment to the United States Constitution

guards citizens against ‘unreasonable searches and seizures’ by the

police.” People v. Johnson, 2024 CO 47, ¶ 23 (quoting U.S. Const.

amend. IV); see also U.S. Const. amend. XIV. “Absent an exception,

a warrantless search or seizure of a person is presumed

unreasonable and in violation of the Fourth Amendment.” Johnson,

¶ 23.

¶ 17 “When police obtain evidence in violation of the Fourth

Amendment, the exclusionary rule ordinarily bars the prosecution

from introducing that evidence against the defendant in a criminal

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case.” People v. Vaughn, 2014 CO 71, ¶ 10. One exception to the

warrant requirement is an investigatory stop that is “supported by

reasonable suspicion.” People v. Chavez-Barragan, 2016 CO 66,

¶ 19; see People v. Funez-Paiagua, 2012 CO 37, ¶ 7.

¶ 18 A traffic stop is a “limited, investigatory intrusion[]” regarding

a suspected traffic violation. Chavez-Barragan, ¶ 19. A traffic stop

prompted by reasonable suspicion of a traffic violation “can become

unreasonable if it is ‘prolonged beyond the time reasonably required

to complete’ the purpose of the stop.” Johnson, ¶ 26 (quoting

Chavez-Barragan, ¶ 19); see also Rodriguez v. United States, 575

U.S. 348, 354 (2015). Law enforcement may not conduct an on-

scene investigation of ordinary criminal activity “in a way that

prolongs the [traffic] stop, absent the reasonable suspicion

ordinarily demanded to justify detaining an individual.” Rodriguez,

575 U.S. at 355.

¶ 19 Thus, a “prolonging” inquiry has two parts. First, did the

officer divert from the mission of the traffic stop by conducting

investigation into other criminal activity in a way that added time to

the stop? See id. And second — if so — did the officer have

reasonable suspicion to justify detaining the individual at the time

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the stop was diverted? See id.; see also United States v. Frazier, 30

F.4th 1165, 1174 (10th Cir. 2022) (holding that, when assessing

reasonable suspicion, the court should consider only the facts

known to the officer at the moment the officer diverted and

extended the traffic stop).

¶ 20 We determine whether an officer had reasonable suspicion by

looking for specific facts “‘known to the officer,’ which ‘taken

together with rational inferences from those facts,’ [give] rise to ‘a

reasonable and articulable suspicion of criminal activity’ justifying

the intrusion into the defendant’s personal privacy.” People v.

Wheeler, 2020 CO 65, ¶ 13 (quoting Funez-Paiagua, ¶ 9). “This is

an objective inquiry that requires us to consider the totality of the

circumstances at the time of the intrusion.” Gamboa-Jimenez, ¶ 40.

C. Analysis

¶ 21 Alvarez Velasquez doesn’t dispute the validity of the initial

stop. See id. at ¶ 37 (“[A]n officer only needs to have reasonable

suspicion that a driver has committed a traffic violation to pull the

driver over.”). Instead, he contends that (1) Scheppele diverted from

the mission of the traffic stop by calling for the K-9 officer, waiting

for the officer to arrive, and using Pennington to slow the process of

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writing a ticket; (2) these activities added time to the traffic stop;

and (3) Scheppele didn’t have a reasonable suspicion that Alvarez

Velasquez had committed another crime.

¶ 22 We need not address Alvarez Velasquez’s first two arguments

because we conclude that Scheppele had reasonable suspicion of

other criminal activity at the time he first called for the K-9

officer — the earliest point at which he began conducting non-

traffic-stop-related tasks.

¶ 23 By the time Scheppele called for the K-9 officer, he had the

following specific and articulable facts to support reasonable

suspicion that Alvarez Velasquez had concealed drugs or other

contraband inside the vehicle:

• The windows of the Honda were darkly tinted, which

Scheppele testified from his training and experience may

indicate an attempt to conceal items in the vehicle.

• Alvarez Velasquez (1) attempted to negate the reasons for

the traffic stop by disputing the turn signal, deflecting

blame for the fictious plates, and pulling off the driver-side

window tint; and (2) made no attempt to search the center

console or glove box to find registration or insurance

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documents. From this behavior, Scheppele could infer that

Alvarez Velasquez was attempting to conceal something

inside the vehicle. See Wheeler, ¶ 18 n.3 (“While not

necessarily indicative of wrongdoing, ‘evasive behavior is a

pertinent factor in determining reasonable suspicion.’”

(quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000))).

• Alvarez Velasquez distanced himself from ownership of the

vehicle, from which Scheppele could infer that Alvarez

Velasquez was attempting to avoid being found in

possession of items in the vehicle (even if it was true that he

wasn’t the owner). Cf. People v. Reyes-Valenzuela, 2017 CO

31, ¶ 14 (“A reasonable, articulable suspicion ‘may exist

even where innocent explanations are offered for conduct.’”

(quoting People v. Castaneda, 249 P.3d 1119, 1122 (Colo.

2011))).

• Alvarez Velasquez drove the Honda with fictitious plates,

which Scheppele testified could indicate that “this would be

a stolen vehicle, and [the driver] [is] hiding something.” Cf.

People v. Barnett, 2024 CO 73, ¶ 15 (“Mismatched plates are

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as suspicious as missing registration papers, which provide

reasonable suspicion [of criminal activity].”).

• Alvarez Velasquez pulled into a hotel that Scheppele

testified was known for narcotics activity. See People v.

Archuleta, 980 P.2d 509, 515 (Colo. 1999) (holding that “a

history of drug transactions in a locality can provide one

element of support” for reasonable suspicion); see also

Illinois, 528 U.S. at 124 (“[O]fficers are not required to

ignore the relevant characteristics of a location in

determining whether the circumstances are sufficiently

suspicious to warrant further investigation.”).

¶ 24 Alvarez Velasquez challenges these facts by arguing that none

of them alone leads to reasonable suspicion. But we “may not

dismiss or discount acts simply because in isolation they may each

have plausible innocent explanations.” Gamboa-Jimenez, ¶ 40.

Together, the tinted windows, the location of the Honda, Alvarez

Velasquez’s behavior, and the fictitious license plates are specific

articulable facts that support a reasonable suspicion that Alvarez

Velasquez was attempting to conceal drugs or other contraband.

Cf. People v. Ramirez, 1 P.3d 223, 225-26 (Colo. App. 1999) (holding

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that factors for reasonable suspicion include “an area’s reputation

as a locus of drug activity, an individual’s attempt to shield his or

her conduct from view, . . . and the person’s nervous or unduly

cautious behavior”).

¶ 25 For these reasons, we conclude that the district court didn’t

err by denying the motion to suppress. See Chavez-Barragan, ¶ 21.

III. Voir Dire Misconduct

¶ 26 Alvarez Velasquez contends that the prosecutor committed

misconduct during voir dire by (1) commenting on Alvarez

Velasquez’s right to silence by referencing the movie Fight Club;

(2) implying Alvarez Velasquez was lying during his conversations

with law enforcement; and (3) improperly educating jurors

regarding the prosecution’s theory of the case. We aren’t

persuaded.

A. Standard of Review and Applicable Law

¶ 27 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, if the conduct was improper, we decide whether it warrants

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reversal under the appropriate standard. Id. Because each step is

analytically different, we can uphold the convictions if the improper

remarks were harmless. Id.

¶ 28 “While a prosecutor can use every legitimate means to bring

about a just conviction, she has a duty to avoid using improper

methods designed to obtain an unjust result.” Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005). “We must evaluate

claims of improper argument in the context of the argument as a

whole and in light of the evidence before the jury.” People v.

McMinn, 2013 COA 94, ¶ 60.

¶ 29 If the defendant failed to object at trial, we review for plain

error. People v. Van Meter, 2018 COA 13, ¶ 26. “Reversal is

required under this standard only if the error was obvious and ‘so

undermined the fundamental fairness of the trial itself so as to cast

serious doubt on the reliability of the judgment of conviction.’” Id.

(quoting Hagos v. People, 2012 CO 63, ¶ 14); see also People v.

Crabtree, 2024 CO 40M, ¶¶ 42-43.

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B. Right to Remain Silent

¶ 30 Alvarez Velasquez contends that the prosecutor improperly

used a line from the movie Fight Club to invite prospective jurors to

infer Alvarez Velasquez’s guilt based on his silence.

¶ 31 At the start of voir dire, the prosecutor asked prospective

jurors about famous lines from Fight Club — for example, “Why is

the first rule of Fight Club we don’t talk about Fight Club?” The

prosecutor then asked jurors, “[I]f we’re doing something we’re not

supposed to do, why are we not going to talk about it?” The

prosecutor elaborated by saying, “[I]s it fair to say that it’s sort of a

natural human reaction from about three years old on that we learn

that we’re not going to talk about this thing that’s going to get us in

trouble?”

¶ 32 Defense counsel requested a bench conference and said he

was concerned that the prosecutor was “going to talk about the

right to remain silent . . . . [S]o I just want to make sure that that’s

not where we’re going.” The prosecutor responded that the line of

questioning pertained to the truthfulness of Alvarez Velasquez’s

statements during the traffic stop, not his right to remain silent.

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¶ 33 The district court then said to defense counsel, “You want me

to jump in and give them an instruction?” Defense counsel agreed

that the court should give the jury an instruction on Alvarez

Velasquez’s right to remain silent and said, “[I]f there’s further

objections, obviously I’ll make them. But if the Court would do that

at this point, then I would appreciate it.”

¶ 34 The court admonished the prosecutor to “watch where you go”

and then instructed the jury that Alvarez Velasquez had a right to

remain silent and that his decision not to testify “cannot be used as

an inference of guilt and cannot prejudice [him] in any way.” The

prosecutor continued her line of questioning, and defense counsel

didn’t object further.

¶ 35 We reject Alvarez Velasquez’s suggestion that the court didn’t

rule on his counsel’s objection. The court impliedly sustained the

objection when it offered the relief of reading the jury instruction

regarding the right to remain silent. Alvarez Velasquez accepted

that relief, didn’t ask for further relief, and didn’t make any more

objections. We therefore decline to review this contention. See

People v. Alemayehu, 2021 COA 69, ¶ 101 (declining to review

alleged misconduct when the district court sustained the objection

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and no further relief was requested); People v. Douglas, 2012 COA

57, ¶ 65 (same); Mingo v. People, 468 P.2d 849, 851 (Colo. 1970)

(same).

C. Alvarez Velasquez’s Truthfulness

¶ 36 Alvarez Velasquez next contends that the Fight Club colloquy

was also improper because it implied that he was a bad person who

lied to the police. Because he didn’t object on this basis at trial, we

review this contention for plain error. See People v. Tallent, 2021

CO 68, ¶ 12 (“When a party presents a new argument or alters the

grounds for an objection on appeal, the issue is forfeited and

reviewable only for plain error.”).

¶ 37 Alvarez Velasquez argues that the Fight Club analogy harmed

his credibility and thereby undermined his theory of defense that

“many items in the car, including the gun, did not belong” to him.

However, the jury acquitted Alvarez Velasquez of POWPO and

possession with intent, indicating that it credited his defense, at

least to some extent. Thus, even assuming (without deciding) that

the analogy was improper, we discern no prejudice.

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D. Educating the Jury

¶ 38 Alvarez Velasquez next argues that the prosecutor improperly

educated the jury about “how to judge credibility of witnesses and

[Alvarez Velasquez]” and “how to make factual determinations.” We

review this contention for plain error in the absence of

contemporary objections. See id.

¶ 39 During voir dire, the prosecutor questioned jurors about how

they judged witness credibility by asking about the following topics:

• what mannerisms the prospective jurors would expect from

a twelve-year-old child who wanted to hide that the child

had thrown a baseball through a window;

• what the prospective jurors would “expect to see or hear

from [the witnesses] in their demeanor and actions and

behavior” if the jurors believed the witnesses were telling

the truth versus lying; and

• if the prospective jurors would intuitively weigh the

credibility of testifying police officers differently than that of

other witnesses.

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¶ 40 Near the end of the prosecutor’s voir dire, one prospective

juror opined about determining credibility based on physical

appearances, stating,

Yeah, I think another thing is what the police
officer would look like and how they carried
themselves when they walk in because if you
don’t know much about law enforcement —
you see, let’s say, a guy, 6-foot-5, 250-pound
person like The Rock, they probably have a
little more authoritative bias over you than if
it’s someone that’s a little jittery, would that
person have less or equal credibility to the guy
that looks like The Rock?

The prosecutor and the juror then had the following exchange:

[PROSECUTOR:] So fair to say that if I walk in
dressed as a police officer but the guy in front
of me, the police officer in front of me, was The
Rock — we have very slightly different
physiques — would you say that you’re already
judging people based on their appearance even
beyond the uniform aspect?

[PROSPECTIVE JUROR:] Yes. Even going day-
to-day, I’m sure if we’re all just walking in here
and we see some person doing something that
might look weird on the street, we’re judging
them, that person is weird. Or we just see
someone working out at the gym, they look
really good today. Or just some random
person, I don’t like how he dressed or
something.

[PROSECUTOR:] Fair to say once, sort of,
puberty happens in middle school, we start

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learning to look at everybody and make
judgments about them, whether or not they
are going to be our friends, whether or not we
like them or hate them, whether or not they
are weird. All of that is happening all of the
time; is that fair?

¶ 41 We perceive no misconduct in the prosecutor’s initial

questions or the exchange with the juror. Voir dire allows counsel

to determine whether any prospective jurors have biases that would

impair a fair and impartial trial. People v. Wilson, 2013 COA 75,

¶ 12. The prosecutor didn’t misstate the law, present inadmissible

factual material, or argue the prosecution’s case. See People v.

Carter, 2015 COA 24M-2, ¶ 71. Instead, the questions tested

whether the prospective jurors could follow instructions and weigh

credibility in an impartial and unbiased manner. When the one

prospective juror indicated that a witness’s physical appearance

might impact his assessment of the witness’s credibility, the

prosecutor asked appropriate follow-up questions to ensure she

understood the juror’s comments. Alvarez Velasquez didn’t object

to the juror serving on the jury and doesn’t contend on appeal that

the juror was biased.

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¶ 42 Furthermore, even if the prosecutor had committed

misconduct, we discern no prejudice. The evidence that Alvarez

Velasquez committed the traffic offenses and possession of a

controlled substance was overwhelming. In fact, defense counsel

admitted during opening statements that Alvarez Velasquez

possessed the methamphetamine and said, “[W]e’re going to ask

you to convict [Alvarez Velasquez] of what he’s guilty of which is

possession of a controlled substance. Not intent to distribute.”

Then, during closing argument, defense counsel reiterated that

possession with intent and POWPO were the only “two allegations

that . . . are in dispute. The rest are not.” And as explained above,

the jury acquitted Alvarez Velasquez of those two offenses,

consistent with his theory of defense.

¶ 43 To the extent Alvarez Velasquez argues that the prosecutor

committed misconduct by using an improper Airbnb analogy, we

decline to address that argument because it is undeveloped. See

People v. Cuellar, 2023 COA 20, ¶ 44.

IV. Cumulative Error

¶ 44 Finally, Alvarez Velasquez contends that the doctrine of

cumulative error requires reversal.

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¶ 45 “[N]umerous formal irregularities, each of which in itself might

be deemed harmless, may in the aggregate show the absence of a

fair trial, in which event a reversal would be required.” Howard-

Walker v. People, 2019 CO 69, ¶ 24 (quoting Oaks v. People, 371

P.2d 443, 446 (Colo. 1962)). Reversal for cumulative error “requires

that numerous errors have actually occurred, not merely be

alleged.” People v. Clark, 214 P.3d 531, 543 (Colo. App. 2009), aff’d

on other grounds, 232 P.3d 1287 (Colo. 2010). Because we

identified only a single assumed error (that the prosecutor

improperly commented on Alvarez Velasquez’s truthfulness or

credibility in her comments about the movie Fight Club), the

doctrine of cumulative error doesn’t apply. See id.

V. Disposition

¶ 46 The judgment of conviction is affirmed.

JUDGE LIPINSKY and JUDGE PAWAR concur.

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