A Sierra Vista man who was facing 15 years in prison on drug charges will spend only two years in custody after a judge ruled much of the case evidence inadmissible at trial due what she characterized as attempted “work-arounds or side stepping” of constitutional protections.
Jesus Oscar Rodriguez recently pleaded guilty to possession of methamphetamine and possession of heroin, both mid-level felonies. He will be on probation for three years after his release from prison, according to a plea agreement accepted by Judge Laura Cardinal of the Cochise County Superior Court.
The outcome for Rodriguez, 31, could have been much worse, as he was initially charged with possession of meth, possession of fentanyl, and possession of alprazolam -a dangerous drug- without a prescription. But the most serious charges in Rodriguez’s indictment involved transportation and possession for sale of heroin.
Those are Class 2 felonies which can carry sentences equivalent with manslaughter, armed robbery, and sexual assault of children.
But the Cochise County Attorney’s Office would not have been able to take Rodriguez to trial on most of those charges because Cardinal ruled back in December that evidence had been illegally seized during a warrantless search of Rodriguez’s vehicle following a traffic stop.
Court records show Deputy Robert Shalvoy of the Cochise County Sheriff’s Office had been conducting surveillance prior to March 8, 2021 of suspected drug trafficking in an residential area east of Sierra Vista. During that surveillance, the deputy had seen a silver Lincoln sedan in the area.
Around 10:30 p.m. on March 8, 2021, Shalvoy saw the same vehicle, which he proceeded to follow to another part of Sierra Vista. The vehicle eventually stopped at a convenience store and drove to another neighborhood before the deputy followed the vehicle back to the east side.
Shalvoy never saw the driver -later identified as Rodriguez- nor the passenger engage in any drug sales activity. The deputy did, however, observe Rodriguez commit several traffic violations which led a traffic stop.
Rodriguez, who admittedly did not stop for one-third of a mile, was arrested for a traffic violation. This allowed Shalvoy to conduct a pat down which revealed a small amount of illegal drugs on Rodriguez’s person.
The passenger was removed from the Lincoln and Rodriguez was placed in a patrol vehicle. About 30 minutes later a U.S. Border Patrol K9 arrived at the scene to conduct a free air sniff – a common practice of walking the dog around a vehicle to see if it alerts to any smells associated with illegal drugs.
However, the USBP agent left without conducting the maneuver. At that point Shalvoy announced his intention to conduct an “inventory search” of the Lincoln which by then had been under the control and observation of deputies for 43 minutes.
The warrantless search led to the seizure of significantly more evidence of illegal drug activities. Rodriguez’s court-appointed attorney challenged the search, which put the burden on the Cochise County Attorney’s Office to prove the lawfulness of how any trial evidence was acquired.
“Deputy Shalvoy was plainly on drug interdiction patrol that evening, and he had plainly targeted the Defendant’s vehicle,” Cardinal noted in her ruling, adding that the U.S. Supreme Court in 1978 deemed such pretextual traffic stops legal “as long as the circumstances, viewed objectively, justify that action.”
Cardinal ruled the traffic stop legally valid, as Rodriguez had not disputed allegations of speeding, improper lane usage, and failure to promptly stop when the patrol vehicle’s lights were turned on. And with a legal traffic stop, the search of Rodriguez’s person was also legally valid.
The problem, according to Cardinal, was with what happened next.
Shalvoy, the judge noted, “did not believe he possessed probable cause to search the vehicle, because he was waiting to do so until after the drug dog established probable cause to search the vehicle with a free-air sniff.” Yet the USBP agent left the scene without doing anything.
Cardinal cited a U.S. Supreme Court opinion in Arizona v. Gant (2009) which held a warrantless vehicle search is unreasonable in the absence of justification. The Gant decision allows such searched when there is a concern for officer safety or in the interest of preserving evidence.
But Rodriguez was in the deputy’s patrol vehicle and the passenger had remained under observation of another deputy, Cardinal noted. As a result, there was no officer safety issue at play.
And Shalvoy had “no reason to believe” the Lincoln contained evidence related to the traffic offenses Rodriguez had been arrested for, Cardinal added.
“In the absence of the Defendant’s consent to search, in the absence of a dog’s assistance in establishing probable cause; and in the absence of a warrant to search, Shalvoy resorted to a purported and highly questionable ‘inventory search’ of the car,” Cardinal wrote. “The court finds this search an abuse of officer discretion and a trampling on Fourth Amendment rights.”
Cardinal also noted the deputy had authority to tow the vehicle to a secure location and then apply for a court-authorized search warrant. .
“More importantly, there was nothing to prevent the officer from obtaining a search warrant to search the towed vehicle,” Cardinal ruled, calling the deputy’s inventory search at the scene “yet another of the ‘work-arounds’ or ‘side stepping’ of the constitutional protections…and it was not reasonable.”
The county attorney’s office did not challenge Cardinal’s ruling. With the evidence from the Lincoln inadmissible for trial, the prosecutor was left to move forward with only the small amount of meth and heroin initially found on Rodriguez’s body during his arrest.
Sentencing has been set for March 28. Until then Rodriguez remains out of custody on a $20,000 surety bond.
