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.
1 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.
2 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.
3 ¶ 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
4 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.
5 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
6 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
7 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
8 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
9 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
10 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
11 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
12 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.
13 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.
14 ¶ 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
15 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.
16 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.
17 ¶ 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
18 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.
19 ¶ 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.
20 ¶ 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.